Public International Law Units 7-9

Question 1

What is the status and scope of ARSIWA?

Answer 1

ARSIWA is not a treaty but a set of articles recognized as customary international law. It covers state responsibility for internationally wrongful acts but does not apply to international organizations or individuals. It has residual character, applying when no specific rules exist, and has no general fault requirement for responsibility.

Question 2

What are the main parts of ARSIWA?

Answer 2

ARSIWA is structured into four parts:

The Internationally Wrongful Act – defines what constitutes an internationally wrongful act.

Consequences of Responsibility – outlines the remedies owed by the state.

Invocation & Countermeasures – addresses who can hold a state accountable and the actions they can take.

General Provisions – covers other relevant aspects of responsibility.

Question 3

Can states justify non-performance of international obligations by relying on internal law?

Answer 3

No, according to Article 3 of ARSIWA, states cannot justify non-performance of international obligations by claiming their national law allows such actions.

Question 4

Is there a distinction between state responsibility for breaching treaty obligations and customary international law obligations?

Answer 4

No, ARSIWA does not differentiate between breaches of treaty obligations and breaches of customary international law. Responsibility applies equally in both cases.

Question 5

What is the difference between primary and secondary rules in ARSIWA?

Answer 5

Primary rules are general obligations owed by states to one another, while secondary rules determine the consequences of breaching those obligations (i.e., state responsibility).

Question 6

Does ARSIWA require fault (intent or negligence) for state responsibility?

Answer 6

No, ARSIWA applies objective responsibility, meaning a breach of an international obligation does not require fault. Whether fault is involved is governed by the primary rule itself.

Question 7

What are the two elements of an internationally wrongful act?

Answer 7

An internationally wrongful act involves conduct (action or omission) attributable to the state that constitutes a breach of an international obligation, with no valid defense of wrongfulness.

Question 8

How does ARSIWA address attribution of conduct to a state?

Answer 8

States can only act through their agents (officials, organs, etc.). Attribution depends on whether the conduct was by a state organ or empowered entity under international law, not on domestic law.

Question 9

How is conduct by state organs attributed to the state?

Answer 9

According to Article 4, the conduct of any state organ, including officials and entities within the state’s organization, is attributed to the state, regardless of the organ’s position or location within the government structure.

Question 10

Can a state avoid responsibility for acts outsourced to private entities?

Answer 10

No, under Article 5 of ARSIWA, a state’s conduct is attributable if a private entity is empowered by the state to exercise governmental authority, even if the entity is not formally part of the state apparatus.

Question 11

How does ARSIWA handle ultra vires (unauthorised) acts?

Answer 11

If an entity acts beyond its legal capacity (ultra vires), the state is still responsible if the act occurred while the entity was acting in its official capacity as a state organ, under Articles 4-7.

Question 12

How does the concept of “colour of authority” apply in state responsibility?

Answer 12

If an official acts under the guise of their official status (even if the action is unauthorized or personal), the conduct is attributable to the state. Examples include the Mallen case (1925) and Caire case (1929), where private acts were deemed official because the perpetrators used their official status.

Question 13

What was the issue in Nicaragua v USA regarding state responsibility?

Answer 13

USA supported the Contras in Nicaragua’s civil war. The question was whether the USA was responsible for IHL violations by the Contras.

Key Concept: De Facto Organ and De Facto Agent tests.

De Facto Organ: If an entity is so dependent on a state that it is considered an organ of that state.

De Facto Agent: If the state exercises “effective control” over operations involving the violation.

Question 13

How does ARSIWA handle the attribution of conduct by non-state actors?

Answer 13

State responsibility can arise from the conduct of non-state actors if they are acting under state instruction or direction (Article 8). States are responsible for private actors if the state exercises control over their actions.

Question 14

What is the test for a De Facto Organ?

Answer 14

If the relationship between the entity and the state is one of dependence and control to the extent that the entity can be legally treated as the state’s organ.

Question 15

What is the test for a De Facto Agent?

Answer 15

Whether the state exercised effective control over the military operations in which the violations occurred.

Key Quote: “A very high threshold” for state responsibility.

Question 15

What was the issue in Prosecutor v Tadic?

Answer 15

The case concerned whether the relationship between the VRS and Serbia made the conflict an “international armed conflict.”

Test: The state must have overall control, including financing, equipping, and planning military activities.

Key Point: Funding and equipping alone are insufficient for state responsibility.

Question 16

What is the test for attributing responsibility for genocide in the Bosnian Genocide case?

Answer 16

To attribute responsibility, the state must show control over specific operations, not just general actions.

Diss Opinion: The control test should vary depending on the context, not be too high a threshold to avoid States using non-state actors for illegal activities.

Question 16

What is required for state attribution of conduct by organised groups?

Answer 16

Conduct is attributable if the state directed or controlled the specific operation, and the conduct was integral to that operation.

Key Cases: Nicaragua (effective control) and Tadic (overall control).

Question 17

When is a state responsible for private conduct?

Answer 17

A state is responsible for failing to prevent or redress private actions, not for the conduct itself.

Example: USA violating the prohibition on the use of force, Serbia violating duty to prevent genocide.

Question 18

Under what conditions can non-state actor actions be attributed to a state?

Answer 18

Article 9: When non-state actors exercise governmental authority.

Article 10: When an insurrectional group becomes the government or a new state.

Article 11: When the state acknowledges and adopts the actions of the non-state actor.

Question 19

How did the Tehran Hostages case address state responsibility?

Answer 19

Initially, the militants acted independently, but after Iran’s public approval and continuation of the occupation, the actions were attributed to the Iranian state.

Question 20

When is a state considered to be in breach of its obligations?

Answer 20

A breach occurs when an act of the state is not in conformity with its obligations. The breach can either be a single act or a continuing one.

Key Point: Temporal limits affect reparations and jurisdiction.

Question 21

What are the conditions under which a state is responsible for another state’s conduct?

Answer 21

Aid/Assist: A state aids another knowing the circumstances, and the act would be wrongful if committed by the assisting state.

Control/Direct: A state is responsible for the wrongful acts of another if it controls or directs the act.

Coercion: A state is responsible if it coerces another to commit a wrongful act.

Question 22

what is CPW and its key concepts?

Answer 22

Key Concepts: Consent Self-defence Countermeasures Force majeure Distress Necessity Important Points: CPWs do not terminate the obligation, only justify non-compliance. CPWs do not apply to jus cogens violations. CPWs do not exclude compensation. Burden of proof is on the respondent.

Question 23

what conditions to distress apply for CPW?

Answer 23

Situation of urgency, e.g., serious risk to life or lives of others. Example: Rainbow Warrior: France removed Marfat and Prieur from a French island without New Zealand's consent. Marfat: Removal justified by medical emergency, but France should have returned Marfat after the emergency ended. Prieur: Removal due to pregnancy and inadequate birth facilities. France's action for "humanitarian reasons" was not justified. Family matters do not count as situations of distress.

Question 24

the circumstances for necessity to be valid?

Answer 24

Must be the only way to safeguard essential interests of the State. Cannot seriously impair the essential interests of other States. May not be invoked if the obligation precludes necessity or if the State has contributed to the situation. Rainbow Warrior: Necessity must be grave, imminent, and real. Gabčikovo-Nagymaros: A mere apprehension of peril is not sufficient; it must be real and immediate.

Question 25

what is the legal test for countermeasures?

Answer 25

A measure that is unlawful under international law in reaction to another State's wrongful actions. Must be in response to a previous wrongful act. State must have called upon the other state to discontinue the wrongful act. Must be proportional and reversible. Cannot be in the form of a threat or force, and cannot breach fundamental human rights. must be last resort and stop when other state complies.

Question 26

how does responsibility relate to consequences of a wrongful act?

Answer 26

Breach of an obligation does not terminate the obligation; it continues to exist. Secondary obligations follow the breach, including the duty of continued performance, cessation, and offering assurances of non-repetition.

Question 27

what is the definition and forms of reparations?

Answer 27

Reparation should wipe out all the consequences of the illegal act and restore the situation to what it would have been if the act hadn't occurred. forms can be restitution in kind or equivalent payment (e.g., compensation for loss). Damages for losses not covered by restitution.

Question 28

What are the consequences of breaching peremptory norms under international law?

Answer 28

Third States must cooperate to end the breach and must not recognize as lawful situations created by the breach (Article 41).

Question 29

Which States can invoke responsibility for a wrongful act?

Answer 29

Injured States: States directly harmed by the breach. Non-Injured States: Can invoke responsibility for breaches of erga omnes or erga omnes partes obligations (Article 48).

Question 30

What is diplomatic protection in international law?

Answer 30

Diplomatic protection is the right of a State to bring a claim on behalf of its nationals harmed by another State, as a wrong to the national is considered a wrong to the State.

Question 31

What are the conditions for exercising diplomatic protection?

Answer 31

The individual must be a national of the State invoking protection. The individual must have exhausted domestic remedies unless it is futile to do so.

Question 32

What measures can be taken to implement responsibility under international law?

Answer 32

Measures include raising diplomatic protests, using peaceful dispute settlement methods (e.g., negotiation, mediation), or self-help measures (e.g., retorsion, countermeasures).

Question 33

What is the difference between retorsion, countermeasures, and reprisals?

Answer 33

Retorsion: Lawful but unfriendly measures (e.g., cutting diplomatic relations). Countermeasures: Unlawful but justified acts to enforce compliance. Reprisals: Forcible measures, prohibited under international law.

Question 34

What is the summary of ARSIWA (Articles on the Responsibility of States for Internationally Wrongful Acts)?

Answer 34

An internationally wrongful act triggers international responsibility. Responsibility includes the duty to continue performance, cease the wrongful act, make reparations, and for serious breaches of peremptory norms, third States must not recognize the situation and must cooperate to end it. Responsibility can be invoked by injured or non-injured States, depending on the nature of the obligation.

Question 35

What are the principles governing international dispute settlement?

Answer 35

The principles are the peaceful settlement of disputes (Article 2(3) of the UN Charter) and the prohibition of the use of force (Article 2(4) of the UN Charter). States must settle disputes peacefully and cannot use force to resolve them.

Question 36

What are the possible ways of peacefully settling international disputes?

Answer 36

The methods include negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements (Article 33(1) UNC).

Question 37

How do judges and arbitrators have authority over States in dispute settlement?

Answer 37

Judges and arbitrators have authority based on the principle of consent. States must agree to be bound by the decisions, either through treaties or specific agreements like compromissory clauses.

Question 38

What are the differences between diplomatic and judicial dispute settlement?

Answer 38

Judicial methods (e.g., arbitration, court decisions) are binding and based on law. Non-judicial methods (e.g., negotiation, mediation) are non-binding and rely on the willingness of parties to agree to a solution.

Question 39

How do judges and arbitrators have authority over states?

Answer 39

Judges and arbitrators derive authority from the principle of consent. States must agree to be bound by the decisions, either through treaties or compromissory clauses in agreements.

Question 40

What are diplomatic methods of dispute settlement?

Answer 40

Diplomatic methods like negotiation (no third-party involvement), mediation (third-party facilitation), and conciliation (active involvement of third-party) are non-binding, with conciliation providing proposed solutions but leaving parties free to accept or reject them.

Question 41

What defines a 'dispute' in international law?

Answer 41

A dispute is a disagreement on a point of law or fact between two parties. For it to be adjudicated by an international court, there must be a clear opposition of views (e.g., Mashall Islands v UK).

Question 42

What’s the difference between contentious and advisory jurisdiction of the ICJ?

Answer 42

Contentious jurisdiction involves resolving legal disputes between states, while advisory jurisdiction allows the ICJ to provide legal opinions on requests from authorized bodies.

Question 43

Why have international courts proliferated and why does this risk fragmentation of international law?

Answer 43

The proliferation is due to the growing complexity of international relations, but it risks fragmentation by creating inconsistent rulings and divergent interpretations of international law.

Question 44

What are the differences between arbitration and international courts?

Answer 44

rbitration is ad hoc, flexible, and gives parties more control over the process, whereas international courts like the ICJ are permanent institutions with established procedures and authority over legal disputes between states.

Question 45

How do negotiations relate to adjudication?

Answer 45

Negotiations do not prevent adjudication, and sometimes a compromissory clause requires that disputes first be negotiated before they can be adjudicated by a court or tribunal (e.g., South West Africa).

Question 46

What is the role of commissions of inquiry in dispute resolution?

Answer 46

Commissions of inquiry investigate facts in disputes, helping to resolve factual disagreements between parties, such as in the Dogger Bank incident, where a commission determined that Russia had attacked British vessels without justification.

Question 47

What are key historical milestones in international dispute settlement?

Answer 47

Key milestones include the Jay Treaty (1794), the Alabama arbitration (1871), the creation of the Permanent Court of Arbitration (1899), and the establishment of the ICJ in 1946.

Question 48

What are the characteristics of arbitration in international disputes?

Answer 48

Arbitration is ad hoc, flexible, and allows parties more control over the process (e.g., choosing arbitrators and confidentiality), though arbitral awards are based on law and can be as binding as court decisions.

Question 49

Why is consent important in dispute settlement?

Answer 49

Consent is fundamental as it governs how disputes are settled, and states must agree to the methods and decisions. The authority of adjudicators and arbitrators is limited to cases where the parties consent (e.g., Armed Activities case).

Question 50

What is the Optional Clause system?

Answer 50

The Optional Clause system allows states to voluntarily accept the jurisdiction of the International Court of Justice (ICJ) for legal disputes, creating a “voluntary compulsory” system. It’s the closest the ICJ gets to compulsory jurisdiction.

Question 51

What are Optional Clause Declarations and how do they work?

Answer 51

States can declare acceptance of the ICJ's jurisdiction for disputes with other states accepting the same obligation. The declarations are unilateral, but can include reservations that limit jurisdiction (e.g., excluding certain types of disputes).

Question 52

How do reservations affect jurisdiction?

Answer 52

If a dispute falls under a state’s reservation, it is excluded from jurisdiction. States may apply reciprocity (e.g., Norway v France), limiting the court’s jurisdiction based on mutual agreements.

Question 53

Can states withdraw reservations to Optional Clause Declarations?

Answer 53

Yes, but withdrawals must be done in good faith. For instance, the USA attempted to withdraw its declaration immediately, which the ICJ ruled against due to a specified 6-month notice period (Military and Paramilitary Activities case).

Question 54

Can the ICJ refuse to exercise jurisdiction?

Answer 54

The ICJ usually exercises jurisdiction but may refuse in certain situations. For instance, the East Timor case (Portugal v Australia) was inadmissible because resolving it required determining Indonesia’s conduct, which Indonesia hadn’t consented to.

Question 55

What does “Devoid of Purpose” mean in admissibility?

Answer 55

If a dispute no longer exists or parties reach an agreement, the court may deem the case “without object,” as in the Dispute over the Status and Use of the Waters of the Silala.

Question 56

What are provisional measures?

Answer 56

Provisional measures are binding actions the ICJ can indicate to protect parties’ rights while the case is ongoing. For example, the court issued measures in the LaGrand case. They require prima facie jurisdiction, plausible rights, and a risk of irreparable harm.

Question 57

Are ICJ decisions binding?

Answer 57

Yes, ICJ decisions are binding (Article 59) and cannot be appealed (Article 60). However, enforcement is voluntary, and the UN Security Council may make recommendations if a state fails to comply (Article 94 UNC).

Question 58

What is the difference between binding decisions and advisory opinions?

Answer 58

ICJ’s advisory opinions are non-binding and are requested by authorized bodies, such as the UNGA or UNSC, on any legal question. For instance, the Nuclear Weapons advisory opinion clarified the legality of nuclear weapons use.

Question 59

Can the ICJ refuse to give an advisory opinion?

Answer 59

Yes, the ICJ has discretion to refuse advisory opinions if it involves circumventing consent or addressing contentious issues, as seen in the Status of Eastern Carelia case. However, in broader contexts, such as the Construction of a Wall, the ICJ may proceed without affecting consent.

Question 60

Are advisory opinions by the ICJ binding?

Answer 60

No, they are not legally binding but are influential.

Question 61

How do advisory opinions affect the UNGA?

Answer 61

The UNGA often follows advisory opinions, as seen in the Chagos Advisory Opinion, where the UNGA upheld it, and the UK negotiated a handover with Mauritius.

Question 62

What is the Indispensable Third Party Principle?

Answer 62

It refers to the situation where a court cannot decide a dispute that involves the rights or obligations of a third party who is not involved in the case.

Question 63

How does the Chagos Advisory Opinion relate to the Indispensable Third Party Principle?

Answer 63

Despite being non-binding, the tribunal in the Mauritius/Maldives maritime delimitation case treated the Chagos Advisory Opinion as a “given,” impacting the decision on the UK's sovereignty over Chagos.

Question 64

Name some of the most significant International Courts and Tribunals (ICTs).

Answer 64

European Court of Human Rights (ECtHR) Investor-State Arbitration (ICSID) International Tribunal for the Law of the Sea (ITLOS) WTO Dispute Settlement Body Human Rights Committee

Question 64

Why have states created so many new ICTs instead of referring cases to the ICJ?

Answer 64

States create specialized ICTs to address specific areas of law, as these courts often offer more tailored jurisdiction and expertise.

Question 65

What is fragmentation in international law?

Answer 65

Fragmentation refers to the inconsistency in international law, where different courts may come to different conclusions on the same legal issue.

Question 66

Provide an example of fragmentation of disputes.

Answer 66

In the Mann Singh v. France case, the ECtHR and the Human Rights Committee came to different conclusions on the same issue.

Question 66

How did Mexico’s countermeasures defense lead to fragmentation in the ADM v. Mexico case?

Answer 66

The ICSID tribunal accepted the countermeasures defense, while the WTO Appellate Body did not, despite it being a general defense under international law.

Question 66

What is the backlash against international courts?

Answer 66

The backlash refers to concerns over judicial overreach and lack of deference to states, often leading to states withdrawing or opposing ICTs.

Question 67

What is an example of the USA's opposition to international courts?

Answer 67

The USA opposed the WTO Appellate Body by refusing to elect judges, rendering it non-functional.

Question 67

What is the solution to fragmentation proposed by the ILC?

Answer 67

Systemic Integration under Article 31(3)(c) of the VCLT, which allows for treaty interpretation in light of other applicable international law.

Question 68

What are some examples of states opposing international courts?

Answer 68

EU's withdrawal from intra-EU BITs and the Energy Charter Treaty. UK's frustration with the ECtHR, leading to constant threats of withdrawal. USA imposing sanctions on ICC judges.

Question 69

What are the causes of the backlash against international courts?

Answer 69

The backlash is caused by courts overstepping their authority, lack of deference to states, and a general trend toward sovereignty over international law.

Question 70

Despite the backlash, which courts are busier than ever?

Answer 70

The ICJ and PCA (Permanent Court of Arbitration) are busier than ever, showing that some international legal bodies remain functional.

Question 70

What does the Drago-Porter Convention (1907) state about the use of force?

Answer 70

It states that the non-payment of debts is not a valid cause for foreign intervention, opposing the use of force for debt recovery.

Question 70

What is the "Just War" Theory?

Answer 70

It addresses the moral/legal question of when, if ever, war is justified. It suggests that war can be justified under certain conditions, such as self-defense and the promotion of good over evil.

Question 71

What does Article 2(4) of the UN Charter state?

Answer 71

It prohibits 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 UN.

Question 72

What are the four conditions for a "Just War" according to Thomas Aquinas?

Answer 72

1) Initiated by a lawful sovereign, 2) For a just cause, 3) Purpose to promote good and avoid evil, 4) Proportional, meaning the good promoted outweighs the evils in the war.

Question 72

What is Grotius' contribution to the legality of war?

Answer 72

Grotius established that war can be permissible under international law if it meets certain just causes, such as self-defense, reparation of injury, and punishment of wrongdoing. He also introduced rules for the conduct of war (jus in bello).

Question 73

What does the Kellogg-Briand Pact (1928) state?

Answer 73

It prohibits the use of war as a tool of national policy and claims that war should never be justified, although it does not preclude justifications like self-defense.

Question 74

What constitutes a "use of force" under international law?

Answer 74

It includes armed aggression, organizing or supporting armed bands, and, in some cases, law enforcement or cyberattacks if their scale and effects are comparable to armed force.

Question 75

What does the "threat" of force mean in international law?

Answer 75

If the use of force itself is illegal, then the threat to use such force is also illegal, as established in the case of Guyana v Suriname.

Question 75

Can a state use force to reclaim lost territory?

Answer 75

No, the use of force for territorial disputes is prohibited under the Friendly Relations Declaration, even if the state claims the territory as its own.

Question 76

What does the principle of non-intervention entail?

Answer 76

It asserts that states have the right to conduct their affairs without outside interference, though intervention by request of a lawful government is permitted.

Question 77

What is the significance of Article 51 of the UN Charter?

Answer 77

It affirms the inherent right of self-defense if an armed attack occurs against a UN member until the Security Council has taken action.

Question 78

What is the "scale and effects" test for an armed attack?

Answer 78

It distinguishes grave forms of force (armed attacks) from lesser uses of force. An attack can be classified as an armed attack if its scale and effects are severe enough, even if carried out by irregular armed bands (Nicaragua v USA).

Question 79

What is anticipatory self-defence?

Answer 79

It is the right to use force before an attack occurs if the threat is imminent, as seen in the Caroline case. However, its acceptance is debated, with the UK supporting it and others rejecting it.

Question 80

What is the "Bush Doctrine" regarding self-defense?

Answer 80

Post-9/11, the USA adopted a relaxed approach to self-defense, allowing preemptive action if a state or group poses a significant threat, such as acquiring nuclear weapons.

Question 81

How does international law view humanitarian intervention?

Answer 81

Humanitarian intervention is controversial, and its legality depends on whether it is consistent with the purposes of the UN. The ICJ has generally disapproved of interventions that violate state sovereignty.

Question 82

When can a State use force on the territory of another State against terrorists?

Answer 82

When there is an armed attack, as per Article 51 of the UN Charter. States may act in self-defense if they prove the involvement of the other State in the terrorism (e.g., Nicaragua and Construction of a Wall cases).

Question 83

What does the "unable or unwilling" doctrine refer to?

Answer 83

It refers to a State’s inability or unwillingness to prevent terrorism within its territory, which may justify another State's use of force, as discussed in the Armed Activities case.

Question 84

What is collective self-defence under Article 51 of the UN Charter?

Answer 84

It allows one State to use force to defend another State, as seen in NATO’s Article 5, invoked by the U.S. after the 9/11 attacks.

Question 85

Can a State invite another State to use force on its behalf in collective self-defence?

Answer 85

Yes, a State can invite another State to act in its defense on third-party territory if terrorists are hiding there.

Question 86

What are the responsibilities of the UNSC under Chapter VII of the UN Charter?

Answer 86

The UNSC can determine threats to international peace and security and take actions like sanctions or military force if other measures are insufficient.

Question 87

What is required for the UNSC to authorize the use of force?

Answer 87

The UNSC can authorize force if other measures are inadequate (e.g., UNSC Res 668 on Iraq in 1990), typically following a majority vote and the concurring votes of the permanent members (P5 veto).

Question 88

How was the 2003 Iraq War justified by the U.S.?

Answer 88

The U.S. invoked self-defense (preemptively) and claimed UNSC authorization due to Saddam Hussein’s violations. This justification was widely criticized, especially by the UK.

Question 89

What was the significance of UNSC Res 1973 regarding Libya in 2011?

Answer 89

It authorized a no-fly zone to protect civilians in Libya, but NATO’s deployment of special forces raised questions about the limits of the mandate.

Question 90

What is the concept of “Responsibility to Protect” (R2P)?

Answer 90

R2P, as outlined in the UN 2005 World Summit Outcome, states that States have a responsibility to protect populations from mass atrocities, but this must be done through the UNSC and does not justify unilateral force.

Question 91

Can States engage in humanitarian interventions without using force?

Answer 91

Yes, States can engage in humanitarian actions short of the use of force, but unilateral use of force for humanitarian reasons is restricted by the UNSC.