CHAPTER 6: STATE JURISDICTION AND IMMUNITY
by the flag State of the vessel at fault or the State whose
6.1. JURISDICTION, GENERALLY
 Jurisdiction, generally – scope of a court’s legal authority to
hear and decide a case before it
 Jurisdiction in IL – used to describe a crucial aspect of State
sovereignty; aka jurisdictional sovereignty
 Jurisdictional sovereignty – a State’s sovereign right to
exercise authority over persons, things, and events by use of
its domestic law and its States organs
 2 Types of Jurisdiction:
o Prescriptive – power to lay down legal rules;
activities of persons or bodies exercising legislative
power
o Enforcement – power to enforce legal rules already
prescribed, by either judicial or executive action
 IL concerns itself with the scope and limits of jurisdictional
sovereignty of States
o Limits arise most frequently because each State co-
exists with other States
o If there were no limits, occasion for international
conflict would be dramatically increase
 Most State practice and arbitral decisions relating to
jurisdictional sovereignty have dealt with criminal jurisdiction
o Because of the public nature of criminal law
o Prosecutions are almost always brought by organs
of State, and police officers are usually involved
 The applicable procedures of IL are less settled in the case of
non-criminal matters
o The exercise of criminal jurisdiction is governed
primarily by private IL
 4 Bases or Principles upon which States are entitled to
exercise their jurisdictional sovereignty in criminal matters:
o Territorial
o Nationality
o Protective
o Universality
 There is no hierarchy among these principles.
6.2. TERRITORIAL PRINCIPLE
 General principle – If a person or thing is located in a State’s
territory, or if an event occurs in a State’s territory, then IL
normally permits a State to prescribe and enforce its domestic
law in respect of that person, thing or event
 Exceptions to general principle
o Against a foreign national in respect of an act
committed outside the State’s territory
o Where the act concerned is covered by neither
universality nor protective principle
o When the person, event or thing is protected by an
immunity recognized by IL
6.2.1. Subjective Territorial Principle
 General principle: A State is free to prescribe and enforce
rules for all conduct which actually takes place within its own
territory, or affecting the status of persons or things located in
its own territory
 Does not depend on the conduct being coincided in the
State’s territory, or on the effects of the conduct being
manifested in the State’s territory, provided the conduct
originates there
6.2.2. Objective Territorial Principle
 General Principle – A State may exercise its jurisdictional
sovereignty over conduct on the basis that some subsequent
element of it occurs in that State, or provided its effects are
felt in that State
 Lotus Case – Criminal jurisdiction may not be exercise except
nationality the accused individual possesses
6.2.3. Scope of State Territory
 All the lands within its international frontier, including the
subsoil
 Added internal waters,
 Territorial sea and all lands directly beneath them
 Airspace directly above these areas
6.3. NATIONALITY PRINCIPLE
6.3.1. Active Nationality Principle
 Principle – States are free to exercise their criminal jurisdiction
over persons who possess their nationality
6.3.2. Passive Nationality Principle
 Principle – Assert jurisdictional sovereignty in criminal matters
on the basis that the victim of the crime possessed the State’s
nationality
 Exercise jurisdictional sovereignty over criminal acts
committed abroad against their own citizens
 Slight shift in the attitude of some skeptical states to the
passive nationality principle
o A response to rise of international terrorism
o US, in particular, has demonstrated a willingness to
employ the passive nationality principle where its
nationals are victims of acts of hostage-taking, or
where they have been targeted by reason of their
nationality
6.3.3. Ships, aircraft and spacecraft
 General principle – Ships, aircraft and spacecraft are
assimilated to the territory of the State under whose laws they
are registered while they remain outside another State’s
territory
o Ships on high seas
o Aircraft above high seas
o Spacecraft in outer space
6.4. PROTECTIVE PRINCIPLE
 General principle – permits a State to exercise its criminal
jurisdiction over certain acts committed abroad by foreign
nationals
 Protective Principle vs. Objective Territorial Principle
o Objective Territorial Principle- permits a State to
protect both State interests and private interests
against an actual injury occurring within the State’s
territory
o Protective Principle – permits a State to protect only
the State’s own security interests against either an
actual injury or a threat to injury
 Actual or threatened injury must be directed at the State’s
security interests, and it must be generally recognized as a
criminal offense among the community of States
o Physical attacks on officers or organs of the State
o Forgery of official documents
 The protective principle has also been extended to other
serious crimes such as conspiracy to import prohibited
narcotics or conspiracy to commit an act of terrorism
 The protective principle is generally raised to justify an
exercise of jurisdiction together with one or more of the other
principles: territorial, nationality or universality.
 This principle can justify an exercise of State sovereignty in
international law only if the impugned conduct is generally
recognized by the community of States and it is not protected
by an applicable rule of international human rights law
6.5. UNIVERSALITY PRINCIPLE
 General Principle – Furnish all States with the jurisdiction to
try and punish certain crimes which are so serious that they
pose a threat to the international order as a whole
 Any State which actually has custody of the offender may
exercise its jurisdictional sovereignty over the offender,
regardless of the offender’s nationality or the location of the
offense
 The principle is normally reserved to justify jurisdiction where
the repression of acts committed outside a State’s territory by
foreign nationals is required as a matter of international public
policy
6.5.1. Piracy
 Hostes humanis generis (enemies of mankind)
 Piracy has posed a major threat to human life, property and
economic activity
 General Principle – Any State into whose custody a pirate falls
is entitled to punish the pirate
 Definition of Piracy – any illegal acts of violence or detention,
or any act of depredation, committed for private ends by the
crew or passengers of a private ship or private aircraft and
directed on high seas
6.5.2. War Crimes and Crimes Against Humanity
 War Crimes – violations of the laws or customs of war
 Crimes Against Humanity – murder, extermination,
enslavement
6.5.3. Genocide
 Definition – any act committed with intent to destroy, in whole
or in part, a rational, ethnical, racial or religious group, as such
o Killing members of the group
o Causing serious bodily or mental harm
o Deliberately inflicting on the group conditions of life
o Imposing measures intended to prevent births
o Forcibly transferring children to another group
 An attempt, conspiracy or direct and public incitement to
commit genocide is also punishable, as in any complicity in
genocide
6.5.4. Extradite or Prosecute
 Aut dedere aut judicare – impose upon the State possessing
custody of the alleged offender an obligation either to
prosecute or extradite to another State with a specified
interest in the offense
o Aircraft hijacking and Sabotage
o Hostage-taing
o Torture
o Drug trafficking
6.5.5. Aircraft Hijacking
 Any person who on board an aircraft in flight:
o Unlawfully, by force or threat thereof, or by any
other form of intimidation, seizes, or exercises
control, that aircraft, or attempts to perform any
such act
o Is an accomplice of a person who performs or
attempts to perform any such act
 General principle – A State is also required its jurisdiction over
the offense even when the offender is merely present in its
territory, unless it extradites the offender to the State of the
hijacked aircraft’s registration
6.5.6. Aircgraft Sabotage
 Any person commits an offense if he unlawfully and
intentionally:
o Performs an act of violence against a person on
board an aircraft if that act is likely to endanger the
safety of the aircraft
o Destroys an aircraft or renders it incapable of flight
6.5.7. Marine Hijacking and Sabotage
 Civil navigation regime applicable to civil aviation
 Extradite or prosecute
6.5.8. Hostage-taking
 Any person who seizes or detains or threatens to kill, to injure
or to continue to detain another person to compel a third party
to do or abstain from doing any act
 Extradite or prosecute
6.5.9. Terrorist Bombing and Financing
 Any person unlawfully and intentionally delivers, places,
discharges, or detonates an explosive or other lethal device
 Extradite or prosecute
6.5.10. Torture
 Torture – any act by which severe pain or suffering, physical
or mental, is intentionally inflicted for such purposes as
obtaining from him or a third person information or a
confession, pushing him for an act or a third person has
committed
6.5.11. Violence Against Protected Persons
 Acts against persons, premises or means of transport of
Heads of State, Heads of Government and Foreign Ministers
while they are abroad, or members of their accompanying
families will give rise to an obligation on any State which has
custody of the offender to either prosecute or extradite the
offender to the victim’s State
6.6. SOVEREIGN IMMUNITY
 All States enjoy sovereign equality, that they have equal rights
or duties, and that all States are required to respect the
personality of other States
 Par in parem non habet imperium
o One cannot exercise authority over one’s equal
o No State may be made subject to the jurisdiction of
any other State against its will
 Sovereign Immunity – body of rules and principles under IL
which determines the extent to which a State is entitled to
claim exemption from another State’s jurisdiction
 Classical sovereign immunity – Neither a State, nor any of its
emanations, nor a State’s property could ever be subjected to
the jurisdiction of a foreign State’s courts unless the State
consented
 20th century – In response to increasing involvement by many
States in activities of an essentially commercial character,
States began moving away from the absolute theory of
sovereign immunity
 Effect of the change during 20th century – Extend sovereign
immunity only to the extent that their activities or property in
question were for a governmental or public purpose (jure
imperii) and not for some commercial or other essentially
private purpose (jure gestionis)
 States are not entitled to immunity when:
o Arising from commercial transactions
o Contracts of employment for work carried out in
forum State
o Pecuniary compensation for death/injury to person
o Relate to State’s interest, rights or obligations
o Relate to infringement by State
o Relating to operations of ships – unless it was being
used for government purposes
6.7. DIPLOMATIC AND CONSULAR IMMUNITY
 General Rule – Render diplomats immune from the criminal,
civil, and administrative jurisdiction of the State to which they
are accredited
 1961 Vienna Convention – A diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State
 Except in cases where:
o There is real action relating to private immovable
property situated in the territory of the receiving
State
o Action relating to succession, where diplomatic
agent is the executor, administration, heir or
legatee as a private person
o Action relating to professional or commercial
activity exercised by the diplomat outside his official
functions
 Immunity from the jurisdiction of the receiving State does not
exempt diplomatic agent from the jurisdiction of the sending
State
 Premises of a diplomatic mission, inviolable – Agents of
receiving State may not enter without the permission of the
ambassador or the head of the mission
 Receiving State – under obligation to prevent intrusion or
damage and to prevent any disturbance of the peace of the
mission
 Premises of a diplomatic mission not part of sending State’s
territory
 Person of a diplomat also inviolable – an accredited diplomat
may be arrested or detained, and the receiving State is
required to take all appropriate steps to prevent any attacks
on his or her person or dignity
 Diplomatic immunity a procedural bar, not a defense
o When the person ceases to be the diplomat, person
loses the protection which the immunity extended
to him/her
o Diplomatic immunity belongs to the State not the
diplomat individually
o Sending State may waive the immunity of any of its
diplomats
o State may also declare a diplomat persona non
grata
 Diplomat Vs, Consul
o Diplomat – represent his or her home on political
matters
o Consul – function is to protects the interests of
his/her nationals in the receiving State
 Does not enjoy immunity from jurisdiction
of courts except in matters of
performance of official functions
 May not be arrested or detained, except
in cases of grave crime
6.8. HEADS OF STATE, GOVERNMENT, AND FOREIGN MINISTERS
 State immunity – often referred to as ‘sovereign immunity’
 Heads of State – without their consent, they cannot be subject
to the jurisdiction of foreign State’s courts or law enforcement
apparatus
o Monarchs, presidents, etc.
 Immunity ratione personae – while individual is serving as a
Head of State, so that he or she is completely immune while
in office
 Immunity ratione materiae – former head of State remains
entitled to the shield of sovereign immunity in respect of
his/her official conduct during term or office
o Does not extend to the conduct of a private
character
o Violation of domestic law not equal to private
character
 Pinochet Case - Almost all apparently official conduct
performed by former Head of State while he or she was in
office is protected by sovereign immunity
 Exception:
o Conduct, during the time it occurred, constituted a
crime for which a form of universal jurisdiction was
established
 Ministers of Foreign Affairs – enjoys sovereign immunity
ratione personae, in respect of any conduct
 Arrest Warrant Case – A former foreign minister may be
subject to criminal proceedings before international courts
CHAPTER 7: STATE TERRITORY
7.1. NATURE AND SCOPE OF STATE TERRITORY
7.1.1. Importance of Territory
 State territory is important in IL because it is the place in which
a State’s prescriptive and enforcement jurisdiction may be
exercised with the exclusion of all the other States
 This exclusively legal authority is a cornerstone principle of
the international legal system
 State – may exercise its sovereign authority as it pleases in
any part of its territory subject only to the requirements of IL
7.1.2. Scope of Territory
 All lands and internal waters within its international
boundaries
 Territorial sea adjacent to its coast
 Airspace above State’s land and territorial sea
 Seabed and subsoil beneath the territorial sea
 All resources thereof
7.1.3. Disputes over Territory
 In most cases involving claims to territorial sovereignty which
came before an international tribunal, there have been 2
competing claims to sovereignty and tribunal has had to
decide which of the 2 is stronger
7.1.4. Antarctica
 Overlapping claims of – Argentina, Australia, Chile, France,
New Zealand, Norway and UK
 Antarctic Treaty – Antarctica used for peaceful purposes only;
no military bases, weapons testing or any other measures of
military nature
7.1.5. Modes of Establishing Title
 Cession
 Occupation
 Prescription
 Accretion
 Conquest
7.2. CESSION
 General Principle – Transfer of sovereignty over territory by
one sovereign to another
o Transfer usually effected by a treaty
 Requisites;
o Intention to assume sovereignty over a territory
o Intention to relinquish the same
 An agreement to permit the exercise by a foreign State of
certain State functions on the territory will not suffice
 Void IF – cession was result of a treaty procured by the threat
or use of force in violation of the principles of IL
7.3. OCCUPATION
 General Principle – State acquired territory which lacked a
State sovereign, because
o There was never such a sovereign
o The sovereign abandoned the territory
 Territory not considered abandoned unless the departing
sovereign demonstrated an animus relinquendi
 Occupation could occur only in relation to territory which was,
at that time occupation commenced, terra nullius
7.3.1. Terra Nullius
 Terra Nullius – territory owned by no one
 Western Sahara Case – When assessing a claim to
sovereignty over territory which depends on past events, the
legal effect of those events must be assessed in the context
of the law as it stood at the time it occured
 If a territory was terra nullius, title by occupation would exist
only if 2 elements were established: possession and
administration
7.3.2. Possession
 General Principle – involved some formal act with an intention
to occupy and usually, actual settlement by a population
under the authority of the possessing State
7.3.3. Administration
 General Principle – After having taken possession of a
territory, the possessor must establish some kind of
administration thereon which shows that the territory is really
governed by the new possessor
7.3.4. Administration and Inhospitable Territories
 General Principle – possessing state need merely perform
public and official acts affecting the territory which
demonstrate to other states that it is exercising sovereign
powers over the territory
7.3.5. Discovery
 Occupation was usually preceded by discovery of the territory
 Discovery during 15th century – first encounter with a territory
by explorers, traders, or soldiers from a European country
7.4. PRESCRIPTION
 General Principle – situation where a State has been
considered the lawful owner even of those parts of its territory
of which it originally took possession wrongfully,
o Provided that the possessor has been in
undisturbed possession for so long as to create the
general conviction that the present condition of
things is in conformity with international order
 2 Ways of Acquisition of Title by Prescription
o Immemorial Possession – the State acquiring title
has been in possession for so long that competing
claims by earlier sovereigns have been forgotten
o Adverse Possession – where the identity of the
previous sovereign is known, but the State
acquiring title has exercised authority over the
territory for so long that the previous sovereign is
regarded as having forfeited its title.
7.4.1. Protest and Acquiescence
 Difference between occupation and prescription
o The response of other States to the exercise and
display of official authority by the possessing State
 Title by prescription is established by the continuous and
peaceful display of State functions
o Not only absence of force but also absence of
protest
7.4.2. Critical Date
 Critical Date – date on which the dispute between the parties
arose
 It is only
7.4.3. Prescription and Occupation Contrasted
 Prescription – previously been under the sovereignty of a
State
 Occupation – need not be peaceful
 Both modes – require evidence of sovereign acts by a State
over a period of time
 Difference on grounds of absence of protest
o Prescription – absence of protest by other States
establishes that any displays of State functions
were peaceful
o Occupation – absence of protest by other States is
evidence that no State had a prior title and the
territory was terra nullius at the time
7.5. ACCRETION
 General principle – Accretion occurs whenever natural forces
add to a State’s land territory
 Customary rule – Land acquired by accretion is transferred to
the receiving State’s territorial sovereignty
o Gradual and imperceptible change in a river’s
course
7.6. CONQUEST
 General Principle – Consisted of taking possession of enemy
territory in time of war with the intention of acquiring
sovereignty over it
 Where no formal act of cession occurred, title could pass by
conquest where:
o Armed forces of the defeated State were
completely destroyed
o The defeated State abandoned the territory by
withdrawing its armed forces
 Conquest no longer operates as a valid basis for acquiring
sovereign title over a territory
o “The territory of a State shall not be the object of
acquisition by another force resulting from the
threat or use of force. No territorial acquisition
resulting from threat or use of force shall be
recognized as legal”
 EXCEPTION: Where a sufficiently large number of States
extend de jure recognition to an asserted title based on
conquest, such recognition may operate to validate title
7.7. UTI POSSIDETIS JURIS
 General Principle – operates to transform pre-independence
boundaries into international borders defeasible only by
agreement between the bordering States
o Also extends to transform a sovereign State’s
internal administrative boundaries into international
borders upon successful separation of one State
 A dependent territory’s pre-independence territories will have
been determined by its former sovereign
 In circumstances where the issue is the location of the
boundary between States that share the same colonial
sovereign, the jus referred to is not international law but the
constitutional or administrative law of the pre-independence
sovereign
  Where a disputed international border originates as an
internal colonial administrative boundary or a boundary
delimiting territorial units within a sovereign State, uti
possidetis juris will always apply
 Where, however, a new State’s post-independence
international border originates as a colonial or sub-national
territory’s international border, utii possidetis juris will apply
where the new State’s previous sovereign and foreign
sovereign with which the border was shared were in
agreement as the border’s location
CHAPTER 8: INTERNATIONAL DISPUTE SETTLEMENT
8.1. DISPUTE SETTLEMENT, GENERALLY
 A cardinal function of every legal system is to provide rules
and principles by which disputes may be authoritatively
determined
 The positive law and its dispute resolution machinery are
human cultural artefacts which provide a means of dealing
with conflicts so that disputes may be resolved without resort
to force, or by resort to force which is authoritatively
sanctioned, regulated and limited
 International law lacks a centralized system of law
enforcement and adjudication
8.2. OBLIGATION TO RESOLVE DISPUTES PEACEFULLY
 From 18th century until 1945 – international law placed no
prohibition on the use of force in relations among States
 1919 – certain multilateral treaty obligations existed limiting a
party’s right to resort to war and imposing obligations to settle
disputes peacefully
 Article 2(3) of UN Charter – All members shall settle their
international disputes by peaceful means in such a manner
that international peace and security, and justice are not
endangered
8.2.1. UN Procedures
 Any member of the UN may bring an international dispute or
other situation to the attention of the security council or
general assembly if the situation might lead to international
friction
8.3. NEGOTIATION, ENQUIRY, GOOD OFFICES AND MEDIATION,
CONCILIATION
8.3.1. Negotiation
 Almost always conducted between 2 disputing states
 Conducted directly between or among the disputants without
requiring the assistance or involvement of parties outside the
dispute
 Although 3rd party involvement is not required, negotiations
may be assisted by the complementary mechanisms of
enquiry, good offices and mediation and conciliation
 Negotiations are almost always held in secret so that the
media, the public and other states are excluded from the
proceedings
 An attempted negotiation is a prerequisite for submitting a
dispute to judicial settlement
 Main advantages of negotiations
o Informality
o They proceed to a settled agreement, a
compromise is probable
 When negotiations are successful in resolving an international
dispute, they usually result in a settlement embodied in a
binding agreement, sometimes in the form of a treaty
8.3.2. Enquiry
 Enquiry – Occurs where the parties commission a third person
or commmittee to investigate disputed issues of fact and make
determinations on those issues
o AKA fact-finding
 In practice, enquiry will be carried out by persons who are
nationals of third States, sometimes assisted by nationals of
disputing States
8.3.3. Good Offices and Mediation
 Good Offices – involve the intercession of a third party with
the relatively limited aim of bringing the parties together and
perhaps providing them with a preliminary agenda
o Typically exercised by a person occupying a post
enjoying the trust and respect of both disputing
States
 Mediation – higher level of involvement for the third party who
is seeking to assist the disputed States in their negotiations
o Mediator will play a role in the negotiations
themselves
o Role will fall short of adjudication but will involve the
making of suggestions, alternative proposals and
attempts at reconciling conflicting positions
8.3.4. Conciliation
 Conciliation – more formalized version of mediation; involves
appointment of conciliation commission by the disputing
States
 May resemble arbitral or judicial proceedings but conclusions
take the form of recommendations and opinions rather than a
binding determination, award or judgmen.
8.4. ARBITRATION
 General Principle – procedure for the settlement of disputes
between states by a binding award on the basis of law and as
a result of an undertaking voluntarily accepted
 Formal dispute mechanism that results in a legally binding
determination by a person or persons not party to the dispute
 Resembles judicial settlement inasmuch as it involves a
formal adjudication of factual and legal issues according to
procedures which are justifiably judicial
 Arbitration vs, Judicial Settlement
o The composition of the arbitral tribunal is
deetermined by the choice of the disputing States
o Arbitration permits parties themselves to select the
law and the rules of procedure applicable to their
dispute
 States can never be compelled to submit a dispute to
arbitration – Arbitration is always the result of an agreement
to arbitrate between the disputing States
 Compromis – legally binding agreement where parties commit
themselves to arbitrate their differences
o Specifies a range of matters:
 Questions to resolve
 Law and procedure to be applied
 Period within an arbitral award is to be
delivered
 Number and identity of arbitrators
 Awards resulting from arbitration are ordinarily binding on the
parties as a result of their agreement in the compromis or
treaty under which the arbitration was conducted
 When seeking annulment of award:
o Insufficient reasoning – arbitral awards must be
supported by adequate legal reasons
o Lack of true majority – Arbitral award must be
supported by a true majority of the Tribunal
o Exces de pouvoir – excess of jurisdiction; when
arbitrators exercise powers which have not been
conferred to them or decide questions which have
not been referred to them
o When the tribunal failed to observe procedural rules
  2 arbitral tribunals worth noting:
o Permanent Court of Arbitration
o Iran-United States Claims Tribunal
8.5. JUDICIAL SETTLEMENT
8.5.1. Prior to 1945
 Central American Court of Justice – Costa Rica, El Salvador,
Guatemala, Honduras and Nicaragua
 Permanent Court of International Justice – jurisdiction to hear
and determine any dispute of an international character ehich
the parties thereto submit to it
8.5.2. International Court of Justice
 Successor of PCIJ
 15 judges elected for renewable 9-year terms
 Possesses 2 principal categories of jurisdiction
o Contentious
o Advisory
8.5.3. Contentious Jurisdiction
 To decide in accordance with international law such disputes
as submitted to it
 2 crucial limitations ratione personae on the contentious
jurisdiction of the ICJ
o Only States may be parties before the Court
o As with arbitration, no State may be subjected to
the Court’s jurisdiction in the absence of its consent
 Court’s function is to decide certain disputes submitted to it.
The Court cannot exercise its judicial power in the absence of
a dispute
8.5.4. Optional Cause Declarations
 A State may also express its consent to be subjected to the
Court’s jurisdiction by making a declaration under Art 36(2) of
the ICJ Statute aka optional clause
 Art 36 – States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other States
accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning;
o Interpretation of a treaty
o Any question of international law
o Existence of any fact, which may constitute a
breach of any international obligation
o The nature or extent of reparation to be made for
the breach of an international obligation
 If a State makes a declaration under Art 36, it will be exposed
to proceedings brought against it by any other State which has
also made a declaration
o Both the claimant State and the respondent State
must have made a declaration under the optional
clause
 In making the declaration a State is equally free to do so
unconditionally and without limit for its time for its duration, or
to qualify it with conditions or reservations
8.5.5. Reservations
 State practice establishes that declarations may be made
subject to reservations or conditions
 Principle of Reciprocity – if a claimant State has made a
reservation or condition, the respondent State may also rely
on it
 Most common reservations; dealing with disputes arising
before a certain date; arising out of armed conflicts
 A state may specify that its optional clause declaration will be
terminated upon the giving of a certain period of notice
8.5.6. Self-judging Reservations
 Declarations in effect under the optional clause which
expressly withhold matters falling within the declaring State’s
domestic jurisdiction from the jurisdiction of the Court
 There may be a faculty where a State declares that it is the
sole judge as to whether a matter falls within its domestic
jurisdiction for the purpose of applying its optional clause
declaration
8.5.7. Rights and Obligations of 3rd States
 A dispute will occasionally come before the ICJ in which, if the
matter were to proceed to final judgment, it would be
necessary for the Court to determine the legal rights and
obligations of a State which is not party to the proceedings
8.5.8. Burden, Standards, and Methods of Proof
 It is necessary to determine the standard of proof which needs
to be satisfied in relation to any particular issue
 Applicant bears the burden of establishing its case; establish
all the elements of the wrong which it alleges against the
respondent
 Evidence – sufficient proof of relevant facts
o Where the claim involves charges of exceptional
gravity, they must be proved by evidence which is
fully conclusive
 The important and practical question is whether it is relevant
to an issue and how much weight should be attached to it
 The more serious the allegation, the more cautious the court
must be before an adverse inference will be drawn
8.5.9. Legal Effect and Enforcement of Judgments
 Art.94. of UN Charter – Each member the UN undertakes to
comply with the decision of the ICJ in any case to which it is a
party.
o If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by
the Court, the other party may have recourse to the
Security Council
 The main problem of the Court’s authority is not non-
compliance with the judgments, rather non-submission to its
contentious jurisdiction
 It is essential for the proper performance of the Court’s
function that its judgments must have some practical
consequence in the sense that they can affect existing legal
rights or obligations of the parties, thus removing uncertainty
in their legal relations
 Doctrine of stare decisis does not attach to judgments of the
ICJ
o Decision of the Court has no binding force except
between the parties and in respect of that particular
case
o The older the judgment of the ICJ, the more likely it
is to be out of date by reason of changes having
occured in positive IL (because laws and treaties
change over time)
8.5.10. Advisory Jurisdiction
 GA or the Security Council may request the ICJ to give an
advisory opinion on any legal question
o Other organs and agencies of UN, which at that
time authorized by the GA, may also request
advisory opinions on legal questions only arising
within the scope of their activities
 Steps on how to get advisory opinion
o GA/SC may request
o Once request is filed, the Court may invite States
and international organizations to appear for the
purpose of making written and oral statements and
to furnish information
 Advisory opinions are not legally binding. But are afforded the
highest respect by States and publicists
 8.5.12. Other International Courts
 ICJ not the only international court with jurisdiction to settle
disputes between States.
CHAPTER 9: INTERNATIONAL USE OF FORCE
9.1. USE OF FORCE BEFORE 1945
 St. Thomas Aquinas – a just war must satisfy a number of
conditions
o Authority of the sovereign by whose command the
war is to be waged
o A just cause
o Belligerents should have a rightful cause
 Just war doctrine central to the jus gentium’s regulation of
armed conflict among sovereigns
 Modern period prior to 1945 – States routinely invoked the
elements of the doctrine, in order to more fully justify resort to
armed force against other States
 Most of 18th-19th century – positive IL effectively abandoned
the central duty of any legal system – defining and regulating
the distinction between forbidden and permitted acts of force
 Versailles Peace Conference – established the League of
Nations and attempted to regulate resort to war
 Kellogg-Briand Pact – parties condemned recourse to war for
the solution of international controversies and renounced war
as an instrument of national policy in their relations with one
another
9.2. USE OF FORCE PROHIBITED
 Art 2(3) of UN Charter – All members shall settle their
international disputes by peaceful means in such a manner
that international peace and security, and justice are not
endangered
 Art 2(4) of UN Charter – All members shall refrain in their
international relations from the threat or use of force against
the territorial integrity or political independence of any State,
or in any manner inconsistent with the purposes of UN
o Exceptions – self-defense and the collective use of
force under UN authority
9.2.1. Force
 The precise parameters of force are not clear from the
provision itself (Art.2{4})
 According to Res. 2625, the duty to refrain from the threat or
use of force includes the ff. obligations:
o Refrain from propaganda for wars of aggression
o Refrain from the threat or use of force to violate
existing international boundaries of a State
o Refrain from the threat or use of force to violate
international lines of demarcation
o Refrain from acts of reprisal involving the use of
force
o Refrain from any forcible action which deprives
peoples of principle of equal rights and self-
determination
o Refrain from organizing or encouraging the
organization of irregular forces
o Refrain from organizing, instigating or assisting or
participating in acts of civil strife
9.2.2. Aggression
 Most grave forms of the use of force
 Resolution 3314 – Aggression is the use of armed force by a
State against the sovereignty, territorial integrity or political
independence of another State, or in any manner inconsistent
with the Charter of UN
 Examples of Aggression
o Invasion or attack by the armed forces of a State
o Bombardment by armed forces of a State
o Blockade of ports or coasts of State
o Action of a State in allowing its territory to be used
by another State for perpetrating an act against a
third State
o Sending by or on behalf of a State of armed bands,
groups or irregulars or mercenaries
9.2.3. Territorial Integrity and Political Independence
 Permissive View – armed force is not forbidden if such force
is not intended to, and does not jeopardize the target State’s
territorial integrity or political independence
o Proportionate acts of armed reprisal for a prior
breach of IL would be lawful provided there was no
attempt to occupy territory or topple the target
State’s government
 Restrictive View – prohibit completely a State’s resort to force
unless a specified exception can be found in the Charter (self-
defense and collective security)
 Restrictive interpretation more consistent with Charter’s
travaux preparatoires
9.2.4. Non-military Pressure
 Art 2(4) of the UN Charter prohibits not only international acts
of armed force, but also non-military pressure of an economic,
diplomatic or political character
 Although non-military pressure will probably not involve a
breach of the provision, the Security Council may
nevertheless regard it as constituting a threat to peace for the
purpose of exercising its functions
 Prohibition on threat or use of force is not absolute
 2 exceptions
o Self-defense
o Collective measures authorized by the UN
9.3. SELF-DEFENSE
 Art 51 – Inherent right of individual or collective self-defense
if an armed attack occurs against a member of the UN, until
the Security Council has taken measures necessary to
maintain international peace and security
 Right to self-defense – inherent/natural as confirmed by
reference to its existence in the jus gentium and hence its
conclusion among the general principles of law
 Caroline test – set standards for acts of self-defense
o Expressly limited to circumstances where there
have been hostile acts within the territory of a power
of peace
 Before an act of force can be justified on grounds of self-
defense, the following elements must all be satisfied
o Necessity of self-defense – both instant and
overwhelming
o No choice of means
o No moment for deliberation
o Those relying on a right of self-defense must show
that they did nothing unreasonable or excessive
 Annexing any part of the aggressor State’s territory after a
military defeat has been inflicted will constitute an act of
aggression and an infringement of the occupying State’s duty
to refrain from use of force
 Necessity and proportionality – essential requirements for the
legitimate exercise of a right of self-defense
9.3.1. Armed Attack
 Art 51 – Armed attack must be understood as including not
merely action by regular armed forces across an international
border, but also the sending by or on behalf of a State of
armed bands
 Subject to the ‘scales and effects’ test, any act proscribed by
resolution 3314 will constitute an armed attack justifying resort
to such armed force as is proportionate and necessary to
repel the attack
 When the armed attack is mounted by a State’s armed forces,
the scales and effects test is inapplicable
 An act of aggression performed by armed bands sent by a
State into another State’s territory must be on a scale, and
produce effects, greater than a mere frontier incident carried
out by regular forces
 Assistance to rebels in the form of the provision of weapons
or logistical or other support will also constitute an armed
attack
o May be regarded as unlawful threat or use of force;
or unlawful intervention on internal and external
affairs of States
 Different considerations of attribution apply when the armed
attack is carried out by private persons who have not been
sent into the victim State by or with the substantial
involvement of the alleged aggressor State
o Before the conduct alleged to constitute the armed
attack can be attributed to the alleged State, it must
be shown that the impugned conduct of the private
persons was directed or controlled by that State
9.3.2. Anticipatory Self-Defense
 STRICT READING OF ART 51 – No State could resort to
force in self-defense until an armed attack had actually
commenced
o Even strong evidence of an armed attack would be
insufficient for target state to engage in military
action by way of anticipatory self-defense
o Advantages: clarity and transparency
 Right to anticipatory self-defense may be
open to abuse by aggressor states to
deceptively justify their unlawful use of
force
 MORE LIBERAL READING OF ART 51 –
o Denying the existence of an anticipatory right of
self-defense deprives the intended victim of
international aggression of such military
advantages as may attack to anticipatory strike,
while simultaneously strengthening the hand of the
intending aggressor
 ALTERNATIVE: Requirement is that it simply qualifies the
circumstances in which the Security Council may become
involved
o Anticipatory military action would be legitimate
where all the elements of the Caroline test are
satisfied
 Armed attack now a prerequisite for invoking the right to self-
defense
o Precludes recourse to force in self-defense where
the cause is a threat to national interests not
involving, actually or potentially, an armed attack
 The requirement that an attack be ‘imminent’ before an act of
anticipatory self-defense may be justified has usually been
understood where military preparations are readily observable
9.3.3. Collective Self-Defense
 It is also important to determine whether third States are
entitle to engage in acts of collective self-defense with the
State which claims to have been attacked
 Right of collective self-defense – entitles third States to use
armed force in support of a State which has been attacked
 An act of collective self-defense must meet all the
requirements of individual self-defense
o Proportionality
o Necessity
o Observance of jus in bello
o Request by victim State
 The state which regards itself as the victim of the armed attack
must call upon the third State to come to its defense. Where
no such request has been made, the third State will have no
entitlement to engage in acts of collective self-defense.
9.4. INTERVENTION
 Intervention – dictatorial interference in the domestic or
foreign affairs of another State which impairs that State’s
independence
o Embraces both armed and unarmed State activities
which seek to dictate another State’s conduct in its
internal affairs or external relations
 Res. 2131 and 2625 – normative statements regarding the
principle of non-intervention
o No state has right to intervene, directly or indirectly
in the internal or external affairs of the state
o Armed intervention or all other forms of interference
against the personality of the State are illegal
o Etc. etc
 Oppenheim – To constitute intervention, there must be
forcible or dictatorial, or otherwise coercive, in effect depriving
the State intervened against of control over the matter in
question
o “Interference pure and simple is not intervention”
 The act of coercion or dictation must be one bearing on
matters in which each State is permitted, by the principle of
State sovereignty, to decide freely, which will include the
choice of political, economic, cultural and social system, and
the formulation of public policy
 Unlawful intervention can take a form which does not involve
a threat or use of force
o Mere supply of funds to an opposition group in
another State – act of intervention; does not amount
to use of force
 A State which has been the victim of an unlawful intervention
in its internal or external affairs is entitled to engage in
proportionate countermeasures against the intervening State
 There is no right for a third State to engage in armed
countermeasures against an intervening State
o No right to engage in countermeasures analogous
to collective self-defense
9.5. UN AUTHORIZATION
9.5.1. Security Council
 A State may engage in the coercive use of force against other
States if it has received prior authorization from the Security
Council (primary responsibility for the maintenance of
international peace and security)
 Art 39 – Security Council may determine the existence of any
threat to the peace, breach of the peace, or act of aggression
and shall make recommendations on what measures shall be
taken
 SC may call upon the member States to apply such measures,
which may include complete or partial interruption of
economic relations, means of communication and severance
of diplomatic relations
 Instead of the SC itself using armed force, it has adopted the
practice of authorizing States to use force for the purposes of
maintaining and restoring international peace and security
9.5.2. General Assembly
 Art 14 – the General Assembly may recommend measures for
the peaceful adjustment of any situation, regardless of origin,
which it deems likely to impair the general welfare or friendly
relations among nations, including situations resulting from a
violation of the provisions of the present Charter
  In case security council fails – GA may make appropriate
recommendation to members for collective measures
9.6. PROTECTION OF NATIONALS ABROAD
 Protection of nationals abroad – State practice to support the
view that a State may use force in the territory of another State
in order to rescue its own national who lives or safety is in
danger
 This right exists either as:
o an expression or extension of the right of self-
defense or
o as a customary law exception to the prohibition on
the use of force
 Viewed as an expression or extension of right of self-defense
– the threat to an intervening State’s nationals is assimilated
to a threat to, or attack upon, the territory of the State itself
 Viewed as an exception to the use of force – justified as not
involving a violation of the territorial integrity or political
independence of the State in whose territory it is performed
 Right of protection - …from any imminent threat of injury or
death in a situation where the State in whose territory they are
located is either unwilling or unable to protect them
o The right is limited to such use of force as is
necessary and appropriate to protect threatened
nationals from injury
9.7. HUMANITARIAN INTERVENTION
 Occurs when a State sends its personnel into the territory of
another State, without that State’s permission, in order to
protect the lives or safety of persons who are not nationals of
the intervening State
o Threat to life or safety might be a natural disaster,
civil disturbance or conduct by the territorial State
itself
 Controversies surrounding humanitarian intervention:
o Will violate the prohibition on intervention in the
internal affairs of other State
o If involves armed forces, violate prohibition on use
of force
 British Government’s Foreign and Commonwealth Office, 4
conditions must be met for a State to rely on humanitarian
intervention:
o Compelling and an urgent situation of extreme
humanitarian distress which demanded immediate
relief
o Territorial State unable or unwilling to deal with the
humanitarian distress
o No practical alternative to external intervention
which would relieve the distress
o Action constituting the intervention must be limited
in time and scope
9.8. RESPONSIBILITY TO PROTECT
 Each individual State has the responsibility to protect its
populations from genocide, war crimes, ethnic cleansing and
crimes against humanity
o Entails the prevention of such crimes, including
their incitement, through appropriate and necessary
means
 Responsibility to protect is based on three essential
principles:
o Each State has the responsibility to protect its
populations from genocide, war crimes, ethnic
cleansing and crimes against humanity
o The international community has a responsibility by
peaceful means to encourage and assist states to
exercise their responsibility of protection
o Where a State fails in its responsibility of protection,
the international community has a responsibility to
act through the Security Council to take forceful
measures
 Responsibility to protect goes further than humanitarian
intervention in positing an obligation on the international
community to render peaceful assistance to encourage and
assist States to comply with their obligations of protection
 Responsibility to protect vs, Humanitarian Intervention
o RTP – confined to genocide, war crimes, ethnic
cleansing and crimes against humanity
o HI – could justify an action where a State’s ability or
willingness to respond to a natural disaster such as
famine, epidemic, flood or earthquake is
inadequate and results in a humanitarian crisis
CHAPTER 10: INTERNATIONAL CRIMINAL LAW
10.1. EMERGENCE OF INDIVIDUAL CRIMINAL RESPONSIBILITY
 International law is a system primarily concerned with the
rights and obligations of states and of international
organizations established by States
o 2 exceptions:
 International human rights; and
 International criminal law
10.1.1. Before the 2nd World War
 From jus gentium, Roman Law regarded pirates as hostis
humanis generis (enemies of mankind)
o Liable to be punished b any sovereign who would
apprehend them in their own territory
 Middle ages – prohibition on killing prisoners of war
 19th century – formal condemnation of the slave trade
 1820 – trade in slaves a capital crime equal to piracy
10.1.2. After the 2nd World War
 20th century – international imposes duties and liabilities upon
individuals as well as upon States; Nuremberg Tribunal
 Crime of genocide attracting individual criminal responsibility
was recognized
 Four Geneva Conventions:
o 1 – amelioration of the condition of the wounded
and sick in armed forces in the field
o 2 – amelioration of the condition of the wounded
and sick and shipwrecked members of the armed
forces at sea
o 3 – treatment of prisoners at war
o 4 – relative to the protection of civilian persons in
time of war
o Function: regulate the use of force in armed conflict,
aka international humanitarian law
 Torture Convention – defined and expressly made torture
subject of individual criminal responsibility
 International Criminal Tribunal for the Former Yugoslavia
(ICTY)- jurisdiction to try persons responsible for serious
violations of international humanitarian law committed in the
former Yugoslavia since 1991
 International Criminal Tribunal for Rwanda (ICTR) –
jurisdiction to try cases involving genocide, crimes against
humanity and war crimes by any persons committing the
offenses in Rwanda
 Rome Statute of the International Criminal Court – any person
committing a crime within the jurisdiction of the ICC shall be
individually responsible and liable for punishment under the
Rome Statute
o Adoption for “Elements of Crimes” which shall
assist the court in the interpretation and application
of provisions
 ICC possesses no retroactive jurisdiction over crimes
committed prior to the date
 10.1.3. Characteristics of Individual Criminal
Responsibility
 International criminal law is distinguished by 2 attributes
o International crimes give rise to the responsibility of
individuals and are therefore not part of the law of
State responsibility
o States may exercise jurisdiction over international
crimes on the bases other than the territorial
nationality or protective principles
 Universality Principle – permits States to exercise their
criminal jurisdiction over offences regardless of the location of
the offence, the nationality of the persons involved, and
impact on any national security interests
o Torture
o Piracy jure gentium
o Prosecute or extradite
10.2. PIRACY JURE GENTIUM
 Because piracy is a criminal offence under numerous
domestic legal orders, the term ‘piracy jure gentium’ is
frequently employed to designate the offence in its modality
under international law
 PIRACY
o Illegal acts of violence or detention, or any act of
depredation
o Committed for private ends by the crew or
passengers of a private ship
o Directed on high seas against another ship or
against persons or property on board that other ship
 Crime of piracy jure gentium is therefore committed even
when any of the prohibited acts are unsuccessfully attempted
 General Rule: Piracy jure gentium at sea cannot be committed
EXCEPT by the crew or passengers of one ship against
another ship
10.3. SLAVERY AND THE SLAVE TRADE
 SLAVE TRADE
o all acts involved in the capture, acquisition or
disposal of a person with intent to reduce him to
slavery
o All acts of disposal by sale or exchange of slave
acquired
 Slavery – status or condition of a person over whom any or all
of the powers attaching to the right of ownership are exercised
 SLAVERY CONVENTION
o Made the slave trade an international crime
extracting individual criminal responsibility
o Did not clearly criminalize slavery itself
o State parties are to prevent and suppress the slave
trade and to adopt measures in order the severe
penalties may be imposed
 Crime of engaging in the slave trade
o Act of conveying o attempting to convey slaves
o Liable to severe penalties
 Enslavement
o The act of enslaving another person or of inducing
another person to give himself
o Liable to punishment
 It is also a criminal offense to perform the acts in relation to
debt bondage, serfdom, or certain practices affecting the
status of women and minors that are analogous to slavery
 Enslavement now listed among the crimes against humanity;
jurisdiction of
o ICC – when committed as part of a widespread or
systematic attack directed against any civilian
population, with knowledge of the attack
o ICTY – when committed in armed conflict, whether
international or internal in character, and directed
against any civilian population
o ICTR – when committed as a part of a widespread
or systematic attack against any civilian population
on national, political, ethnic, racial or religious
grounds.
10.4. TERRORISM
10.4.1. Terrorism as a war crime
 Terrorism will constitute a war crime when acts of terrorism
are committed in the prescribed context for war crimes, that
is, in the context of an armed conflict
 Geneva Conventions – extend certains protections to non-
combatants and persons hors de combat in non-international
armed conflicts
o Prohibitions on violence to life or person, mutilation,
cruel treatment and taking of hostages
o Give rise to individual criminal responsibility
 ICTY – terrorism gave rise to individual criminal responsibility
because it was a violation of laws or customs of war
 ROME STATUTE – lists specific acts which constitute war
crimes for the purposes of ICC jurisdiction, and terrorism is
not included in the list
 Geneva Convention – because of this, a large majority of the
world are bound to accept that terrorism is a war crime
attracting individual criminal responsibility
10.4.2. Terrorism as a Crime Against Humanity
 Terrorism will constitute a crime against humanity in the
context of a widespread or systematic attack directed against
any civilian population with knowledge of the attack
 Terrorist attacks may fall under this category of crimes
whether they are perpetrated in time of war or peace; they
must consist of the ff. conduct
o Murder
o Great suffering
o Serious injury to body or to mental or physical
health
o Torture
o Rape
o Enforced disappearance of persons
10.4.3. Terrorism as an International Crime in Time of
Peace
 Terrorism in time of peace (not occurring in the context of an
armed conflict or of a widespread or systematic attack on a
civilian population)
 Terrorism international in character with attacks being carried
out in one State by persons performing or directing the
terrorist attacks coming from another State
 Terrorism is an international crime which may be committed
in a time of peace, without the contextual requirement of an
armed conflict or of a widespread or systematic attack on a
civilian population
 For terrorism to constitute an international crime at customary
IL, several elements must be present:
o Criminal act or threat of such an act
o Act must be among those prohibited by anti-
terrorism measures in conventional and national
law (murder, hostage-taking, kidnapping, hijacking,
bombing)
o There must be political intention of either forcing a
public authority to take some action or refrain from
taking some action, or of spreading fear among a
population
 o There must be a transnational dimension to the
crime in terms of planning, execution or impact.
10.5. GENOCIDE
 Any of the following acts committed with intent to destroy, in
whole or in part, a national, ethical, racial or religious group,
as such:
o Killing members of the group
o Causing serious mental or bodily harm
o Deliberately inflicting on the group conditions of life
o Imposing measures intended to prevent births
o Forcibly transferring children
 Genocide Convention - punishable, as are any attempt,
conspiracy, or direct and public incitement to commit
genocide and any complicity in genocide
 State parties to GC were not permitted to exercise jurisdiction
over the crime of genocide except on the basis of territorial
principle
 All states acquired universal jurisdiction over genocide as a
matter of customary international law
 The crime of genocide thus requires, as with all international
crimes, an actus reus and mens rea
o Actus reus – may take any one of the five form
specified; provided it is directed at one or more
members of any stable and permanent group
o Mens rea – intention to destroy, in whole or in part,
the target group
 The required intention could be established by confession or
by inference
10.6. TORTURE AND CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
10.6.1. Emergence of Prohibition on torture and similar
conduct
 UDHR – no one shall be subjected to torture or cruel, inhuman
or degrading treatment or punishment
 Geneva Conventions – State parties to prohibit cruel
treatment and torture in the context of an internal armed
conflict
o Against persons taking no active part in hostilities
o Including members who have laid down their arms
o Those placed hors de combat by sickness, wounds
or detention
 Geneva Protocol 1 – prohibits torture of all kinds, whether
physical or mental and humiliating and degrading treatment
regardless whether they are performed by civilian or military
agents
 Geneva Protocol 2 – prohibits cruel treatment and humiliating
and degrading treatment
 ICTY – jurisdiction to prosecute persons committing torture or
inhuman treatment when the impugned conduct constitutes a
grave breach of any of the 4 GCs
o When committed in armed conflict, whether
international or internal in character and directed
against a civilian population
 ICTR – When committed as a part of a widespread or
systematic attack against any civilian population on national,
political, ethnic and racial or religious gounds.
 Rome Statute – confers jurisdiction on ICC when committed
as a part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack
10.6.2. Definition of Torture
 Torture – Any act by which sever pain of suffering, whether
physical or mental, is intentionally inflicted on a person for
such purposes
o Obtaining information or a confession
o Punishment for an act
o Intimidating or Coercing
o Discrimination
 Torture Convention – does not rely on the existence of an
armed conflict or the commission of crimes against humanity,
unlike ICTY, ICTR,or Rome Statute
o Crime of torture is committed whenever:
 Physical or mental pain or suffering of a
designated intensity
 Pain is inflicted by or at the instigation, or
with the consent of a designated person
 The pain is inflicted for a designated
purpose
 TORTURE vs. CRUEL, DEGRADING TREATMENT
o Same phenomena at different points on a spectrum
of seriousness
o Both forms of conduct are unlawful
o Torture – aggravated and egregorius and
intentional manifestation of cruel or degrading
treatment
o Unhuman and degrading treatment – acc to court
assessment, they did not rise to the level of torture
because they did not cause very serious and cruel
suffering
 How to qualify an act as degrading
o Likely to arouse fear, anxiety and vulnerability likely
to humiliate him
o Consider whether the conduct was so serious it was
to amount to also a violation on the prohibition of
torture
o Standards of human rights protection are becoming
increasingly stringent over time
10.6.3. Definitional significance
 The first reason is less juridical than socio-psychological
o No civilized state wishes to attract the acute
diplomatic odium of a definitive judicial finding that
it has engaged in acts of torture
o In the context of individual criminal responsibility,
this is the juridical realty that torture is a more
serious charge even than one of cruel, inhuman or
degrading treatment or punishment
 In the context of jurisdiction of domestic courts; obligations of
state parties to the torture convention
o Ensure that all acts of torture, including attempts to
commit torture and complicity or participation in
torture, are offences under their criminal law
o Establish jurisdiction over the crime when it is
committed in its territory
o Extradite or prosecute the offender
o States are forbidden to expel, return or extradite a
person to any State where there are grounds for
believing that he or he would be in danger of being
subjected to torture
10.7. CRIMES AGAINST HUMANITY
 These are international crimes which attract individual
criminal responsibility
 They may be prosecuted before any international tribunal on
which jurisdiction has been conferred
o Nuremberg, ICC, ICTY, ICTR
10.7.1. Elements of Crimes Against Humanity
 Murder, extermination, enslavement, deportation and other
inhumane acts
 ICTY – jurisdiction over crimes against humanity when
committed in the context of armed conflict, whether
 international or internal, and directed against any civilian
population
 ICTR – jurisdiction over crimes against humanity when
committed as a part of a widespread or systematic attack
against any civilian population on national, political, ethnic,
racial, or religious grounds
 Rome Statute – any of the ff attacks when committed as part
of widespread or systematic attack directed against any
civilian population with knowledge of the attack
o Murder, extermination, Enslavement, deportation,
imprisonment, rape, torture, persecution, enforced
disappearance of persons, apartheid, other
inhumane acts
10.7.1. Prescribed Context
 (Akayesu) The specified acts, in order to constitute a crime
against humanity has a requirement that they be committed
on the grounds discriminating on the basis of nationality,
ethnicity, political considerations, race or religion
 ICTR – prescribed act must be committed as part of a
widespread or systematic attack
o Attack – when any of the specified violent acts are
committed
 May also come in the form of non-violent
pressure to act in a particular way
o Widespread – massive, frequent, large-scale
action, carried out collectively with considerable
seriousness and directed against a multiplicity of
victims
o Systematic – thoroughly organized and following a
regular pattern on the basis of a common policy
involving substantial public or private resources
involving some plan
o The victims of the attack must be civilians.
 Unlike war crimes, there is no requirement for crimes against
humanity to have been committed as part of an armed conflict
10.7.2. Specified Acts
 The common feature uniting all the specified acts as
constituting crimes against humanity is that they are
inhumane in character and cause great suffering, or serious
injury to body or mental or physical health
10.7.3. Murder
 One of the modes by which CAH and WC may be committed
 Murder per se is not an international crime
 Rome Statute – provided that the perpetrator “killed one or
more persons” = murder
 ICTR – requires death of a victim; resulting from an unlawful
act; which he or she was aware that would cause death; and
intention by perpetrator to cause death
10.7.4. Extermination
 Accused must have participated in the killing of at least one
named or described person by an act or omission which was
both unlawful and intentional
 There must be evidence that a particular population was
targeted and that its members were killed or otherwise
subjected to conditions that will bring about the destruction of
a part of the population
 Extermination – intentional infliction of conditions of life, inter
alia, the deprivation of access to food and medicine
 It is not necessary that there be intention to destroy a
permanent group in whole or in part. It is only necessary that
the victims be part of a civilian population
10.7.5. Enslavement
 Enslavement – exercise of any or of all the powers attaching
to the right of ownership over a person and includes the
exercise of such power in the course of trafficking in persons,
in particular, women and children
 Right of ownership – includes the power to purchase, sell,
end, barter, or impose a similar deprivation of liberty
 Indications of enslavement
o Elements of control and ownership
o Restriction or control of an individual’s autonomy
 Slaves may exist without torture, but they are still slaves if
without lawful process they are deprived of their freedom by
forceful restraint
10.7.6. Deportation or forcible transfer of population
 Forced displacement of the persons concerned by expulsion
or other coercive acts from the area in which they are lawfully
present
 Forced – if it involves either physical force or a threat of force
and coercion, such as that caused by fear of violence, duress,
detention, psychological oppression or abuse of power
 Deportation – involves a transfer across borders
 Forcible transfer – Displacement within a state
10.7.7. Imprisonment or Other Severe Deprivation of Physical
Liberty
 Elements of Crimes – perpetrator must have imprisoned one
or more persons or otherwise severely deprived one or more
persons of their physical liberty
 ICTY – there must be deprivation of liberty without the due
process of law
10.7.8. Torture
 ICTR – verbatim definition of torture in convention (Akayesu)
 ICTY – presence of any state official or any other authority-
wielding person in the torture process not necessary for the
offense to be regarded as torture under international
humanitarian law
o Infliction of severe pain
o Act or omission intentional
o Act must aim at obtaining information or a
confession
 Rome Statute – intentional affliction of severe pain or
suffering, whether physical or mental, upon a person in the
custody or under control of accused; not necessary that
torture be committed by a designated person such as a public
official
 Torture as a crime against humanity differs from the Torture
Convention Crime also in not requiring a designated purpose,
such as obtaining a confession or information
10.7.9. Rape and sexual violence
 Rome Statute- rape, sexual slavery, enforced prostitution,
enforced pregnancy, enforced sterilization, or any other form
of sexual violence
 Rape – physical invasion of a sexual nature, committed on a
person under circumstances which are coercive (ICTR)
 According to Elements of Crimes:
 Rape – invasion of the body of a person by conduct resulting
in penetration, of any part of the body of the victim or of the
perpetrator with a sexual organ; invasion committed by force
 Sexual slavery – perpetrator exercises any or all powers
attaching to the right of ownership over one or more persons
 Enforced prostitution – causing one or more persons to
engage in one or more acts of a sexual nature by force
 Forced pregnancy – unlawful confinement of a woman forcibly
made pregnant
  Enforced sterilization – permanent deprivation of biological
reproductive capacity which is neither justified by medical or
hospital treatment
 Sexual violence – act of sexual nature against one or more
persons
10.7.10. Persecution
 Intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of the
group or collectivity
o Deprivation of fundamental rights, severe
 Persecution may therefore be constituted by any of the other
acts specified as capable of constituting crimes against
humanity
10.7.11. Enforced disappearance of persons
 Arrest, detention or abduction of persons, with the
authorization of a State or political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give
information on the whereabouts of those persons
 Elements of Crimes
o Arrest, detain, abduct, or maintain an abduction of
a person
o Accompanied by refusal to acknowledge the
deprivation of freedom
o Perpetrator refuse to give information on
whereabouts of the persons
10.7.12. Other inhumane acts of a similar character and
gravity
 Apart from the acts specified as constituting crimes against
humanity, ‘other inhumane acts’ committed in a prescribed
context are also to be such crimes
 Of similar character intentionally causing great suffering, or
serious injury to body, mental or physical health
 Any act which violates a fundamental right recognized by
international law, and which causes great suffering or serious
injury to health, is capable of constituting a crime against
humanity
o Act must be committed as a part of a widespread or
systematic attack directed against any civilian
population with knowledge of the attack
10.8. WAR CRIMES
10.8.1. War Crimes and Crimes Against Humanity
Contrasted
 War crimes also attract individual responsibility
 War crimes VS. Crimes Against Humanity
o War Crimes – occur in context or armed conflict;
originate in international humanitarian law
o Crimes against Humanity – occur during a
widespread or systematic attack on a civilian
population; essentially a branch of international
human rights law
10.8.2. Development of War Crimes
 War crimes were declared to mean ‘violations of the laws or
customs of war’
 Individual criminal responsibility was subsequently confirmed
for grave breaches of the 4 Geneva Conventions
 Rome Statute – confers on the ICC Jurisdiction on war crimes
 4 Categories of War Crimes
o 1st two – war crimes committed in the context of an
international armed conflict
o 2nd two – war crimes committed in the context of an
internal armed conflict
10.8.3. War Crimes in International Armed Conflicts
10.8.3.1. Grave breaches of the Geneva
Conventions
 Grave breaches identified by the 4 Geneva
Conventions as attracting individual criminal
responsibility in the context of an international
armed conflict
 Eight Classifications:
o Willful killing
o Torture or inhuman treatment
o Willfully causing great suffering
o Extensive destruction and appropriation
of property
o Compelling a POW or another protected
person to serve in the force of a hostile
power
o Willfully depriving of a POW or another
protected person of the rights of fair and
regular trial
o Unlawful deportation
o Taking of hostages
10.8.3.2. Violations of Other Customary Rules
 Other rules of customary international law
applicable to international armed conflicts but not
codified as grave breaches of the Geneva
Conventions
o Intentionally directing attack against
civilians
10.8.4. War Crimes in Internal Conflicts
10.8.4.1. Common Article 3
 Consists of serious violations of Common Act 3 of
the Geneva Conventions committed in the context
of internal armed conflicts
 Any of the ff. acts committed against persons taking
no active part in the hostilities, including members
who have laid down their arms
o Violence to life and person
o Committing outrages upon personal
integrity
o Taking of hostages
o Passing of sentences and carrying out
executions without previous judgment
10.8.4.2. Violations of Other Customary Rules
 Rules of customary international law not already
codified in Common Art.3 and attracting individual
criminal responsibility in the context of an internal
armed conflict
o Intentionally directing attacks against
civilians, buildings, personnel
10.8.5. Armed Conflicts
 In order for any act to constitute a war crime, it must be
committed in the context of an armed conflict
 The context of an armed conflict is present whenever there is
a resort to armed force between States or protracted armed
violence between governmental authorities and organized
armed groups or between such groups within a State
 International armed conflict – armed force employed between
two or more States
o Individual criminal responsibility applies from the
initiation of the conflict and extends beyond the
cessation of hostilities until a general conclusion of
peace is reached
  Internal armed conflict – between governmental authorities
and organized armed groups or between such groups within
a State
o Where armed groups are involved, they must be
organized
o Fighting must also be of a certain intensity
o Internal disturbances and tensions such as riots,
isolated and sporadic acts of violence
o Individual criminal responsibility applies until a
peaceful settlement is achieved
o Applies to the whole territory under the control of a
party, whether or not actual combat takes place
 For the purposes of criminal breaches of international
humanitarian law, the test for determining whether an
apparently domestic insurgency is in reality an international
conflict is whether the insurgent forces are under the overall
control of a foreign State
10.9. CRIME OF AGGRESSION
 Crime of aggression may give rise to an individual criminal
responsibility
 Art 8 (1) – crime of aggression as the “planning, preparation,
initiation or execution, by a person in a position effectively to
exercise control over or to direct the political or military action
of a State
 Only manifest violations of the prohibition on the threat or use
of force will attract the ICC jurisdiction
o The crime over which the ICC may exercise
jurisdiction will ordinarily be committed by a State’s
political and military leadership cadre
 Act of aggression – use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State
o Invasion or attack by armed forces of a State
o Bombardment by armed forces of a State
o Blockade of ports or coasts
10.10. INDIVIDUAL AND COMMAND RESPONSIBILITY
 2 modes by which an individual can bear criminal
responsibility for the crime of genocide, crimes against
humanity and war crimes:
o Responsibility as an individual
o Responsibility as a commander or superior
10.10.1. Individual Responsibility
 Personally or jointly committing the crime, ordering or
soliciting the crime, aiding or assisting in the crime’s
commission, contributing to a crime’s commission, attempting
the crime, and directly and publicly inciting the crime
10.10.2. Command Responsibility
 Usually in the context of the conduct by members of military,
paramilitary, militia, armed police, or similar forces
 Those personally responsible for the crimes will therefore
usually be a part of an organization in which there are chains
of command with persons in positions of superior authority
above them
 Command responsibility- even without giving orders or
otherwise attracting individual responsibility, it is possible for
persons to be criminally liable for certain failures or omissions
which result in or fail to punish crimes committed by their
subordinates
 To hold a superior responsible, 3 elements must be
established:
o Existence of superior-subordinate relationship
o Superior knew or had the reason to know that the
criminal act was about to be or had been committed
o Superior failed to take the necessary and
reasonable measures to prevent the criminal act or
punish the perpetrator thereof
 Customary IL on command responsibility consists of 2 rimary
elements:
o Accused must have been in position to control
effectively the conduct of those who were
individually responsible for the crimes
 Must’ve been in effective control
o Knowledge of the accused is important
10.10.3. Immunities
 As far as the jurisdiction of the ICC is concerned, immunities
and special procedural rules enjoyed by Heads of State,
Heads of Government or other government or public officials
do not apply
10.10.4. Burden and Standard of Proof
 ICC, ICTY, ICTR –
o Accused – enjoys a presumption of innocence
o Prosecution – bears the onus of proving guilt
 Prove case on common law standard ‘beyond reasonable
doubt”
10.11. General Defenses
 There are a number of general defenses available to charges
of international crimes
 General defenses – expressions of general princples of law
recognized by civilized nations
o Self-defense
o Duress
o Necessity
o Mistake of fact
o Mistake of law
10.11.1. Self-defense
 Defense of self-defense established when:
o Conduct was response for an attack or imminent
unlawful attack on his life or on the life of another
person
o There was no reasonable alternative open to him
o He did not cause the other person’s attack
o His conduct was a proportionate response to the
other person’s attack
 Even when that entity has been the victim of an unlawful use
of force at IL, the accused is not relieved of his obligations
under international humanitarian law
10.11.2. Duress and necessity
 Duress – raised where the accused is compelled to commit a
crime because of a serious and immediate threat to his life or
person by another party
o Produced by the criminal intent of the person
 Accused must prove that
o His conduct was performed at an immediate threat
of serious and irreparable harm to life or limb
o There was no reasonable prospect of avoiding the
threatened harm without engaging in the conduct
o Conduct engaged in not disproportionate to the
threat
o Circumstances leading to duress were not the
product of the accused’s own voluntary conduct
 Necessity – result of a set of objective circumstances; test
formulated also applicable to necessity
10.11.3. Mistake of Fact or Law
 Mistake of Fact – operates to negate the mens rea of the
crime
 o Where the accused can show that he mistakenly
believed that the facts were such that his conduct
was lawful, mens rea element is missing = acquittal
 Mistake of law – when the accused is charged will
generally not operate as a defence
o Ignoratia legis non excusat
 Compliance with superior orders will not operate as a defense
unless the conditions are complied with
o Accused under legal obligation to obey orders
coming from the authority in question
o Accused must have been ignorant that the order
was unlawful
o Order itself must not have been manifestly awful
10.12. Mens Rea
 Actus reus – proscribed conduct
 Mens rea – mental element of criminal liability
o Individual may not be criminally liable at IL unless
he engages in proscribed conduct unless he
possesses a criminal intent to engage in that
conduct
o Two material elements
 Intent
 Knowledge
10.12.1. Intent
 A person has intent where:
o In relation to conduct, that person means to engage
in the conduct
o In relation to a consequence, that means to cause
that consequence or is aware that it will occur in the
ordinary course of events
 Inference usually plays an important role in establishing
criminal intent
 It is necessary to consider if it includes recklessness and
culpability
10.12.2. Knowledge
 There shall be no criminal responsibility unless the material
elements of the crime are committed with knowledge
 Knowledge – circumstance exists or that a consequence will
occur in the ordinary course of events
 Knowledge may be established by circumstantial evidence
CHAPTER 11: INTERNATIONAL HUMAN RIGHTS
11.1. ANTECEDENTS TO INTERNATIONAL HUMAN RIGHTS
11.1.1. The Natural Law
 Jus natural – The idea that all human beings possess rights
by reason of their humanity, and that early sovereigns can
neither confer nor revoke those rights; natural law
 Late 16th and early 17th century – relations among European
sovereigns were conceived and regulated mainly in terms of
the jus gentium, derived partly from jus natural and positive
law
 Philosophia perennis – medieval conception of jus natural
o Highly distorted and desiccated version of the jus
naturale during the Enlightenment
 Enlightenment naturalism – individualistic, voluntarist and
rationalist
o Rested on various conceptions of a state of nature
and social contract
o Jus naturale was ordained to the common good an
was man’s rational participation in an antecedent
internal law
o Reformist objectives to replace remnants of feudal
society
 French and American documents express common
commitments to certain basic rights of the human person
11.1.2. Positive Law Antecedents
 19th century – principle of sovereignty which underpins the
State system of international law and relations
o Prohibits any external interference in the way a
State treats persons within its territory
o Resort to human intervention
 20th century – system of international human rights
11.2. UNITED NATIONS HUMAN RIGHTS SYSTEM
 Principal issues at 2nd world war – preservation of international
peace and the protection of human rights
 Basic purposes and principles of UN – promoting and
encouraging respect for human rights and for fundamental
freedom for all without distinction as to race, sex, language,
or religion
 20 years after WWII- this period witnessed the conclusion of
conventions against genocide and racial discrimination, and
the emergence of a fundamental right to self-determination of
peoples
11.3. REGIONAL HUMAN RIGHTS SYSTEM
 UN system of human rights protection is complemented by 3
regional systems, all of which are autonomous from the UN
and from each other
o Council of Europe
o Organization of American States
o African Union
 Council of Europe – European Convention on Human Rights
o ECHR – most highly developed of all the
international human rights instruments
 Organization of American States (OSA) – 35 member states
in North, Central and South America and the Caribbean
o Host to the Inter-American system of human rights
protection
o Particularly important in the clarification and
elaboration of human rights in developing States
often struggling to establish basic freedom and
democratic norms
 African Union – African Charter on Human and People’s
Rights
o Incorporates in text not only civil and political rights
but also rights to development and other collective
rights
11.4. SELF-DETERMINATION OF PEOPLES
 Central political principles in UN
 One of the specified objectives of the UN system of
international economic and social cooperation which all
member states are pledged to support
 Not initially conceptualized as a human right
 All peoples have the right of self-determination. By virtue of
that right, they freely determine their political status and freely
pursue their economic, social and cultural development
11.5. GENOCIDE
 Most singular feature of WWII was the campaign of racial
obliteration carried out by the National Socialist Regime in
Germany
 From proceedings of the International Military Tribunal at
Nuremberg – 1948 Convention on the Prevention and
Punishment of the Crime of Genocide
 Genocide/ Freedom from genocide is not a human right at all
o Rather an international crime
11.6. RACIAL DISCRIMINATION
 Harsh measures escalated to an attempted mass
extermination of the Jewish people
 After the military defeat of Germany and its allies in 1945,
matters relating to racial discrimination assumed a heightened
importance in international affairs
 In both the UN Charter and the UDHR, racial non-
discrimination was identified as a human rights meta-principle
which imbued all other human rights
 Racial discrimination – any distinction, exclusion, restriction,
or preference based on race, color, descent, or national or
ethnic origin which has the purpose of nullifying or impairing
the recognition, enjoyment or exercise, of human rights and
fundamental freedoms in the political, economic, social,
cultural or any other field of public life
 International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) – cornerstone obligation is to
prohibit and eliminate racial discrimination
o As well as to provide protection and remedies
 Some forms of discrimination are not caught by the obligation
to prohibit and eliminate
 States remain free to maintain distinctions, exclusions,
restrictions, or preferences between citizens and non-citizens
 States are also free to adopt measures sometimes referred to
as affirmative action or positive discrimination – provided they
are measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups
11.7. CIVIL AND POLITICAL RIGHTS
 International Covenant on Civil and Political Rights (ICCPR) –
drafted by Economic and Social Council of the UN;
o Together with UDHR and ICESCR – it forms part of
the International Bill of Rights
o Principal purpose – transpose into treaty form the
first 21 articles of the UDHR dealing with the
classical, fundamental freedoms, which are
typically associated with a liberal and democratic
political order
o Most juridically significant of all the human rights
instruments in the UN
11.7.1. Human Rights Committee
 Based in Geneva; established by Art 28 of ICCPR
 18 members who serve in their personal capacity
 All States parties are required to submit reports to the Human
Rights Committee on the measures they have adopted which
give effect to the rights recognized by ICCPR
 Issue General Comments on the interpretation and
application of particular provisions or aspects of the covenant
 First Optional Protocol – single most significant source of
jurisprudence on the ICCPR
o Individual written ‘communication’ which can be
made by persons who regard themselves as victims
of violations of their Covenant rights
11.7.2. Right to Life
 First substantive right enshrined in ICCPR after self-
determination
 UDHR – everyone has the right to life, liberty and security of
the person
 ICCPR – Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily
deprived of his life (Art 6-1)
o Requires a State’s security and police forces to
refrain from killing suspected criminals wthout first
meeting violent resistance from the suspected
criminals
 A state will be in violation of Art 6-1 in conjunction with Art2-3
(right to an effective remedy) where it fails to properly
investigate a person’s violation of his right to life and
prosecute the perpetrators of the crime
 Death penalty is not forbidden, although its use is
circumscribed
o On recent occasions; “mandatory death penalty
constitutes an arbitrary deprivation of life”
 1990 Second Optional Protocol – requires States to refrain
from carrying out any executions and abolish the death
penalty
11.7.3. Torture and cruel, inhuman or degrading
treatment
 UDHR – No one shall be subjected to torture or cruel,
inhuman or degrading treatment or punishment.
 ICCPR – (Additional) in particular, no one shall be subjected
without his free consent to medical or scientific
experimentation
 Torture – suggests mistreatment of a kind that exceeds the
merely unpleasant, uncomfortable or embarrassing
 Although capital punishment is not per se a violation of Art 7
of the ICCPR, certain modes of execution are
 Violation of provision where it extradites a person to face the
prospect of an extended period of time on death row prior to
execution
11.7.4. Slavery, servitude and forced labor
 Slave, servitude and slave trade are condemned by UDHR
and ICCPR
 Slavery – status or condition of a person over whom any or all
of the powers attaching to the right of ownership are exercised
 Slave trade – acts involved in the capture, acquisition or
disposal of a person with intent to reduce him to slavery
 Servitude – Embraces severe economic exploitation or
dominance exercised over one person by another
 Compulsory labor – all work or service which is extracted from
any person under the menace of any penalty
11.7.5. Arbitrary Arrest and Detention
 No one shall be subjected to arbitrary arrest or detention or
deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law
 Not confined to arrest and detention in criminal cases
 Anyone arrested must immediately be given reasons and
must properly be informed of any changes
11.7.6. Humane treatment for detainees
 Persons held in detention must be treated with humanity and
with respect for their dignity
 Accused persons and convicted criminals should be
segregated and that the former shall be subject to separate
treatment appropriate to their status as unconvicted persons
11.7.7. Imprisonment for contractual obligations
 No one may be imprisoned merely for failure to fulfill a
contractual obligation
 Prohibition does not extend to violations of statutory or
criminal obligations or the non-payment of resultant fines
11.7.8. Freedom of Movement and Residence
 UDHR – freedom of movement and residence within the
borders of each State as well as the right to leave any country
and to return to one’s own country
 ICCPR – Everyone lawfully within the territory of a State shall,
within that territory have the right to liberty of movement and
freedom to choose his residence
 11.7.9. Expulsion of Aliens
 Aliens have no general right to enter the territory of a State or
to remain there
 Once an alien is lawfully within a State’s territory, he or she
not only enjoys a freedom of movement and a right to choose
his or her own residence
11.7.10. Equality before the Law and Fair Trial
 The maintenance of human rights and fundamental freedom
is impossible without the rule of law
 An essential component of the rule of law is every person’s
equality before the law and the courts and fairness of trial in
those courts
 Presumption of innocence in criminal cases extends beyond
the standard requirement that the prosecution must prove its
case beyond reasonable doubt and that the court must give
the benefit of the doubt to the defendant
11.7.11. Retroactive Criminal Laws
 ICCPR – No person may be convicted of any criminal offense
on account of any conduct which was not a crime under
domestic or international law at the time it was committed
 No one may have a heavier criminal penalty imposed upon
him than was applicable at the time the crime was committed
 Absence of a relevant national law will not prevent the
prosecution of a defendant whose conduct constituted a crime
according to international law
11.7.12. Recognition as a Person Before the Law
 Everyone has the right to recognition everywhere as a person
before the law
 Subject to exceptional rules relating to minority and insanity,
every person must be able to exercise legal rights and
assume legal obligations and to commence or defend legal
proceedings
11.7.13. Privacy
 No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to unlawful
attacks upon his honor and reputation; everyone has the right
to protection of the law against such interference or attack
11.7.14. Freedom of Thought, Conscience and Religion
 UDHR – universal right to freedom of thought, conscience and
religion
o Right to have or adopt a religion or belief of one’s
own choosing, and freedom to manifest that religion
or belief in worship, observance, practice and
teaching
 ICCPR – no one shall be subject to coercion which would
impair his ir her freedom to have or adopt a religion or belief
 Enforcing compulsory military service against a person who
has conscientious objection to military service is a violation
 Freedom of opinion extends to a political, scientific, historic,
moral or religious nature
11.7.15. Freedom of Expression
 ICCPR – includes freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally or in writing or in print, in the form of art, or through
any other media
 Freedom may be restricted only by law and only where
necessary to protect the rights and reputations of others or for
the protection of national security, public order, public health
or morals
11.7.16. Assembly and Association
 ICCPR – guarantee expression as a part of a larger group
assembled for that purpose
 Requires States to recognize a right of peaceful assembly and
provides that no restrictions may be placed on the right other
than those imposed in conformity with the law
 Assembly must be peaceful, so that non-peaceful gatherings
are not protected
11.7.17. Protection of the Family
 Family – natural and fundamental group unit of society and is
entitled to protection by society and the state
 ICCPR – right of men and women of marriageable age to
marry and found a family
o No marriage shall be entered into without the free
and full consent of the intending spouses
11.7.18. Protection of the Child
 ICCPR – Requires States to ensure that every child shall have
such measures of protection as are required by his or her
status as a minor on the part of the child’s family, society and
State
 Protection available without discrimination to race, color, sex,
language, religion, national or social origin, property or birth
 Area now covered by Convention on the Rights of the Child
11.7.19. Participation in Public Affairs
 The most important civil and political right in structural terms
is the right to live in a democratic political system and to
participate in the functioning of that system
 Every citizen has the right and the opportunity to take part in
the conduct of public affairs and to vote and to be elected
11.7.20. Minority Rights
 ICCPR – In those states in which ethnic, religious, linguistic
minorities exist , persons belonging to such minorities shall
not be denied that right, in community with other members of
the group, to enjoy their own culture, to profess and practice
their own religion, or use their own language
 Distinct from right of peoples to self-determination
 Minority rights vs. Self-determination
o Minority rights are enjoyed by individuals by virtue
of their membership of a minority within that State
o Right of self-determination is enjoyed by the people
as a whole who live within a non-self-governing
territory
11.7.21. Non-discrimination and Equality Before the Law
 ICCPR – respect and ensure all individuals in the territory
without distinction to any kind
 All people are equal before the law and are entitled without
discrimination to the equal protection of the law
 Principle of non-discrimination implemented throughout each
State party’s domestic legal system
11.7.22. Obligations of State Parties
 State parties to the ICCPR undertake specific obligations with
respect to the rights established or recognized in the
Covenant
 State must provide effective remedy for the violation of a
covenant right perpetrated by a State official
11.7.23. Reservations
 ICCPR does not expressly forbid the making of reservations
and many States have made reservations to various of the
Covenant’s provisions
11.7.24. Derogations
  There may be exceptional situations in which it is necessary,
in the general interest, to attenuate or suspend the enjoyment
of some civil or political rights
 ICCPR (Art. 4) – in time of public emergency, state parties
may take measures derogating from their obligation under the
present covenant to the extent strictly required by the
exigencies of the situation
o Public emergency must be extremely serious –
threaten the life of the nation
o Derogations permitted only to the extent strictly
required by the exigencies of the situation
o Public emergency also officially proclaimed

11.8. ECONOMIC, SOCIAL AND CULTURAL RIGHTS

 Later 19th century and 20th century

 ICCPR – remains the premier international human rights
instrument – require State to refrain from taking specific
actions
o Explains existence of an authoritative, albeit non-
binding, semi-judicial mechanism for indicating a
State’s violations of the Covenant’s obligations
 ICESCR – submit reports to Economic and Social Council of
UN on the measures they have adopted and progress made
in achieving observance of the rights

11.9. DISCRIMATION AGAINST WOMEN

 Convention on Elimination of All Forms of Discrimination

Against Women (CEDW) – pursue all appropriate means and
without a delay of policy of eliminating discrimination against
women
 Discrimination Against Women – distinction, exclusion, or
restriction made on the basis of sex with the purpose or effect
of impairing or nullifying the recognition enjoyment or exercise
of women

11.10. CHILDREN’S RIGHTS

 UDHR – Motherhood and childhood are entitled to special

care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same protection
 Child – every human being below the age of eighteen years
unless under the law applicable to the child, majority is
attained earlier
 Undertake all appropriate legislative, administrative and other
measures for the implementation of the rights recognized in
the convention

11.11. CUSTOMARY HUMAN RIGHTS

 Obligations erga omnes – do not depend on satisfying the

rules of diplomatic protection on nationality of claims
o Arise in accordance with the requirements of
customary IL
o Obligations of jus cogens character – any attempt
to derogate from them by treaty will be void
 Gross and large-scale violations of basic human rights or a
consistent pattern of gross violations of internationally
recognized human rights will engage a delinquent State’s
responsibility to all other States under customary IL
o Genocide
o Slavery or slave trade
o Murder or causing disappearance of individuals
o Torture or other cruel, inhuman, or degrading
treatment or punishment
o Prolonged arbitrary detention
o Consistent pattern of gross violations of
internationally recognized human rights
 Where a State violates an obligation owed erga omnes, all
other States are entitled to protest and seek remedies in
accordance with the rules governing State responsibility and
international dispute settlement