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Session 13 o The primary obligation (including but not limited to the content of the

ARSIWA Commentaries, Articles 12-15; 20-27 rule)


o The circumstances of the given case.
Article 12: There is a breach of an international obligation by a State when an act of that • The distinction between a completed act and continuing acts is a relative one.
State is not in conformity with what is required of it by that obligation, regardless of its • Continuing act: one which has been commenced but has not been completed at the
origin or character relevant time.
• Article defines in the most general terms what constitutes a breach of an o Where a continuing wrongful act has CEASED, the act is considered for the
international obligation (IO) – final analysis, whether or not there is a breach of an future as no longer having a continuing character even though the effects
IO depends on precise terms of the obligation + interpretation and application, may continue → thus it is covered by paragraph 1 instead.
taking into account object and purpose as well as facts of the case. • An act does not have a continuing character merely because its effects or
• Disconformity between the conduct required of the State by that obligation and the consequences extend in time. It mist be the act itself as such which continues.
conduct actually adopted by the state. • The continuing character can have legal significance for various purposes including
• A breach may exist even if the act of the state is only partly contrary to an State responsibility.
international obligation incumbent upon it → compare the conduct in fact engaged • (paragraph 3) deals with the temporal dimensions of a particular category of
in by the State with the conduct legally prescribed by the IO breaches of IO → namely the breach of obligations to prevent the occurrence of a
• “Not in conformity with what is required of (the State) by that obligation” = breach given event (obligations of prevention). These obligations are usually construed as
of an international obligation. “best efforts obligations” → requiring all states to take all reasonable or necessary
• These next few articles are of general application → apply to all IOs of states measure to prevent a given event from occurring but without necessarily
whatever their origin may be (customary, treaty, general principle of law) warranting that the event will not occur.
• The source of an obligation does not alter the conclusion that responsibility will be
entailed if it is breached by a State. Article 15: The breach of an IO by a State through a series of actions or omissions defined
• There is no room in international law (IL) for a distinction between the regime of in aggregate as wrongful occurs when the action or omission occurs which, taken with the
responsibility for breach of a treaty and for breach of some other rule. other actions or omissions, is sufficient to constitute the wrongful act.
• There is also no a priori limit to the subject matters on which States may assume IO. In such a case, the breach extends over the entire period starting with the first of
the actions or omissions of the series and lasts for as long as these actions or omissions
Article 13: An act of a State does not constitute a breach of an IO unless the State is bound are repeated and remain not in conformity with the IO.
by the obligation in question at the time the act occurs. • Composite acts give rise to continuing breaches which extend in time from the first
• This article provides an important guarantee for States in terms of claims of of the actions/omissions in the series of acts making up the wrongful conduct.
responsibility. It is in keeping with the idea of a guarantee against the retrospective • Composite acts covered by this article are limited to breaches of obligations which
application of IL in matters of State responsibility. concern some aggregate of conduct and NOT individual acts as such.
• State practice supports this principle: a requirement that arbitrators apply the rules o “series of acts or omissions defined in aggregate as wrongful.”
of IL in force at the time when the alleged wrongful acts took place is a common • Composite acts may be more likely to give rise to continuing breaches. Simple acts
stipulation in arbitration agreements. can, however, cause continuing breaches as well.
• A further distinction must be drawn between the necessary elements of a wrongful
Article 14: The breach of an international obligation by an act of a State not having a act and what might be required by way of evidence that such an act has occurred:
continuing character occurs at the moment when the act is performed, even if its effects o For example, an individual act of racial discrimination by a State is
continue. wrongful – BUT it may be necessary to adduce evidence of a series of acts
The breach of an IO by an act of a State having a continuing character extends by State officials to show that any of those acts was discriminatory.
over the entire period during which the act continues and remains not in conformity with o Thus, discrimination is NOT a composite act BUT it may be necessary for
the IO. the purposes of proving discrimination to adduce a series of acts/practice
The breach of an IO requiring a State to prevent a given event occurs when the amounting to such an act.
event occurs and extends over the entire period during which the event continues and • A consequence of the character of a composite act is that the time when the act is
remains not in conformity with that obligation. accomplished cannot be the time when the first action of the series takes place: it is
• This article deals with several related questions: it develops the distinction between only subsequently that the first action will appear as having “inaugurated the
breaches not extending in time and continuing wrongful acts. It also deals with the series”. Only after a series of actions takes place will the composite act be revealed
application of that distinction to the important case of obligations of prevention. not merely as a succession of isolated acts but as a composite act.
• A completed act occurs “at the moment when the act is performed” even though its • (Paragraph 1) defines the time at which a composite act “occurs” as the time at
effects may continue (paragraph 1) which the last action occurs which, taken with the other actions, is sufficient to
• A continuing wrongful act occupies the entire period during which the act continues constitute the wrongful act WITHOUT IT necessarily having to be the very last in the
and remains not in conformity with the IO PROVIDED that the state is bound by the series.
IO during that period (paragraph 2) • At the time when the act occurs which is sufficient to constitute a breach it may not
• Whether a wrongful act is completed or has a continuing character depends on: be clear that further acts are to follow and that the series is not complete.
• While the composite acts are made up of a series of actions, this does NOT exclude • The essential effect is thus to preclude the wrongfulness of conduct of a State acting
the possibility that every single act in the series could be wrongful in accordance in self-defense vis-à-vis an attacking state.
with another obligation. • The law of neutrality distinguishes between conduct as against a belligerent and
• (Paragraph 2) deals with the extension in time of a composite act. Once a sufficient conduct as against a neutral.
number of actions or omissions has occurred, producing a breach, the breach is
dated to the FIRST act in the series. The statues of the first action is equivocal until Article 22 The wrongfulness of an act of a State not in conformity with an IO towards
enough of the series has occurred to constitute the wrongful act; but at that point, another State is precluded if and to the extent that the act constitutes a countermeasure
the act should be regarded as having occurred over the whole period from the taken against the latter State in accordance with Chapter 2 of Part 3
commission of the first action. Otherwise, the effectiveness of the prohibition would • In certain circumstances, the commission by a State of an internationally wrongful
be undermined. act may justify another State injured by that act in taking non-forcible counter-
• In cases where the obligation did not exist at the beginning of the course of conduct measure in order to procure its cessation and to achieve reparation for the injury.
but came into being thereafter, the first action of the series will be the first occurring • When countermeasures are taken in accordance with this article, the underlying
after the obligation has come into existence. obligation is not suspended nor terminated. The wrongfulness of the conduct is
precluded for the time being by reason of its character as a countermeasure BUT
ONLY PROVIDED that and for as long as the necessary conditions for taking
Article 20 Valid consent by a State to the commission of a given act by another State countermeasures are satisfied.
precludes the wrongfulness of that act in relation to the former State to the extent that • Countermeasures may only preclude wrongfulness in the relations between an
the act remains within the limits of that consent. injured State and the State committing the internationally wrongful act.
• Distinction must be drawn between consent in relation to a particular
situation/course of conduct and consent in relation to the underlying obligation Article 23 The wrongfulness of an act of a State not in conformity with an IO of that State
itself. is precluded if the act is due to force majeure, that is the occurrence of an irresistible force
• Consent to the commission of otherwise wrongful conduct may be given in advance or of an unforeseen event beyond the control of the State, making it materially impossible
or even at the time it is occurring. Cases of consent given AFTER the conduct has in the circumstance to perform the obligation
occurred is a form of WAIVER or ACQUIESCENCE leading to the loss of the right to Paragraph 1 does not apply if:
invoke responsibility. The situation of force majeure is due, either alone or in combination
• Whether consent has been validly given is a matter addressed by IL rules outside the with other factors, to the conduct of the State invoking it; OR
framework of State responsibility. The State has assumed the risk of that situation occurring.
• Whether a particular person or entity had the authority to grant consent in a given • Force majeure is different from a situation of distress (article 24) or necessity
case is a separate question from whether the conduct of that person/entity was (article 25) because the conduct of the State which would otherwise be
attributable to the State for the purposes of Chapter 2. internationally wrongful is involuntary or at least involves no element of free choice.
• Who has authority to consent may depend on the rule. In any vase, certain • Paragraph 2(b) deals with situations in which the State has already accepted the
modalities need to be observed for consent to be considered valid: risk of the occurrence of force majeure. The assumption of risk must be unequivocal
o Freely given and clearly established and directed towards those to whom the obligation is owed.
o Actually expressed by the state rather than merely implied
o Consent may be vitiated by error, fraud, corruption, or coercion. Article 24 The wrongfulness of an act of a State not in conformity with an IO of that State
• The requirement that consent must be valid also serves another function: it points is precluded if the author of the act in question has no other reasonable way, in a
to the existence of cases in which consent may not be validly given at all. situation of distress, of saving the author’s life or the lives of other persons entrusted to
• Article 20 envisages only the consent of States to conduct otherwise in breach of an the author's care.
IO → IL may also take into account the consent of non-State entities such as Paragraph 1 does not apply if:
corporations or private persons. The situation of distress is due, either alone or in combination with
• The rights conferred by international human rights treaties cannot be waived. other factors, to the conduct of the State invoking it
The act in question is likely to create a comparable or greater peril.
Article 21 The wrongfulness of an act of a State is precluded if the act constitutes a lawful • Where an individual whose acts are attributable to the State is in a situation of peril
measure of self-defense taken in conformity with the Charter of the United Nations (either personally or in relation to persons under his care), Article 24 applies.
• Self-defense may justify non-performance of certain obligations provided that such • Unlike situations of force majeure, a person acting under distress is NOT acting
non-performance is related to the breach of that provision. involuntarily. Nor is it a case of choosing between compliance with IL and other
• This is not to say that self-defence precludes the wrongfulness of conduct in ALL legitimate interests of the state (such as characterized situations of necessity under
cases or with respect to ALL obligations. article 25)
o I.e. humanitarian law and in relation to non-derogable human rights • The plea of distress is also accepted in many treaties as a circumstance justifying
provisions. conduct which would otherwise be wrongful.
• A state acting in self-defense is totally restrained by an IO if that obligation is • This is limited to cases where human life is at stake.
expressed or intended to apply as a definitive constraint even to States in armed • There should however be a certain degree of flexibility in the assessment of the
conflict. conditions of distress: “no other reasonable way”.
• This article only precludes the wrongfulness of conduct so far as it is necessary to • Circumstance precluding wrongfulness do not as such affect the underlying
avoid the life-threatening situation. obligation: if the circumstance no longer exists, the obligation regains full force and
effect
Article 25 (1) Necessity may not be invoked by a State as a ground for precluding the • Paragraph b is a reservation as to questions of possible compensation for damage in
wrongfulness of an act not in conformity with an IO of that State unless the act: cases covered by the Chapter 5. It does NOT attempt to specify in what
(a) Is the only way for the State to safeguard an essential interest against a circumstances compensation should be payable → the range of possible situations is
grave and imminent peril such that to lay down a detailed regime for compensation is not appropriate.
(b) Does not seriously impair an essential interest of the State or States towards
which the obligation exists or of the international community as a whole
(2) In any case, necessity may not be invoked by a State as a ground for
precluding wrongfulness if:
(a) the IO in question excludes the possibility of invoking necessity
(b) the State has contributed to the situation of necessity
• This denotes exceptional cases where the only way a State can safeguard an
essential interest threatened by a grave and imminent peril is, for the time being,
not to perform some other IO of lesser weight or urgency.
• Unlike consent (20), self-defense (21) or countermeasures (22), it is NOT dependent
on the prior conduct of the Injured State
• Unlike force majeure (23), it does not involve conduct which is involuntary or
coerced
• Unlike distress (24), necessity consists NOT in danger to lives but in a grave danger
either to the essential interests of the State or of the international community as a
whole.
• It arises where there is an irreconcilable conflict between an essential interest and
an obligation of the State.
• Thus, compliance with an IO must be “self-destructive”
• Paragraph 2 lays down tow general limits to any invocation of necessity:
o Cases where IO in question explicitly or implicitly excludes reliance on
necessity
o May not be relied on if the State has contributed to the situation of
necessity → contribution to the situation of necessity must be sufficiently
substantial and not merely incidental or peripheral

Article 26 Nothing in this chapter precludes the wrongfulness of any act of a State which
is not in conformity with an obligation arising under a peremptory norm of general IL
• Where there is an apparent conflict between primary obligations, one of which
arises for a State directly under a peremptory norm, SUCH AN OBLIGATION MUST
PREVAIL.
• Recall that the criteria for identifying peremptory norms are stringent. According to
the Vienna Convention:
o Not merely that the norm in question meet all the criteria for recognition
as a norm of general IL
o It should also be recognized as having a peremptory character by the
international community as a whole.
• Very few peremptory norms have been recognized as such.

Article 27 The invocation of a circumstance precluding wrongfulness in accordance with


this chapter is without prejudice to:
Compliance with the obligation in question if and to the extent that the
circumstance precluding wrongfulness no longer exists
The question of compensation for any material loss caused by the act in question
Session 13 Necessity, (like distress), involves a situation of danger, but what is in danger is not the
Circumstances Precluding Wrongfulness life of a State official and the persons who may have been entrusted to him, but the whole
Cassese 253-258 State or its population.

CIRCUMSTANCES PRECLUDING WRONGFULNESS Art. 25 of the ILC Draft provides that:


Necessity may not be invoked by a State as a ground for precluding wrongfulness of an act
Another objective element to be taken into account when establishing State responsibility not in conformity with an international obligation of that State unless the act:
is whether there are circumstances excluding wrongfulness. (a) is the only way for the State to safeguard an essential interest against a grave
and imminent peril; and
6 principal circumstances under State practice, case law, and as codified in the ILC (b) does not seriously impair an essential interest of the State or States towards
Draft: which the obligation exists, or of the international community as a whole
1. Consent of the injured State In any case, necessity may not be invoked by a State as a ground for precluding
2. Self-defence wrongfulness if:
3. Countermeasures in respect of an international wrong (a) the international obligation in question excludes the possibility of invoking
4. Force majeure necessity; or
5. Distress (b) the State has contributed to the situation of necessity.
6. State of necessity
Necessity may not be relied upon when the very legal obligation that a State violates, rules
Consent to carry out activities that would otherwise be prohibited by international law out, either expressly or implicitly, the possibility of invoking this ground for excluding
renders those activities lawful. wrongfulness.
• Consent must be valid. It is not valid if it is directed to permitting activities
contrary to jus cogens. (See p. 256 for illustrative cases)

Self-defence and Countermeasures are when action is taken as a reaction to the CIRCUMSTANCES PRECLUDING WRONGFULNESS AND JUS COGENS
wrongful act/s of another State. The former consists of the use of force, while the latter
may consist of other acts which may be otherwise prohibited by international law. Circumstances precluding wrongfulness do not operate when they involve breach of
obligations deriving from a peremptory norm.
Force majeure is the occurrence of an irresistible force or of an unforeseen event, beyond
the control of the State, making it materially impossible in the circumstances to perform the This limitation, however, does not apply to self-defence because the latter consists of the
obligation. This does not apply if: use of force. This ground necessarily implies a breach on the ban on the use of force,
1. The situation of force majeure is due, either alone or in combination with other which has the character of jus cogens.
factors, to the conduct of the State invoking it; or
2. The State has assumed the risk of that situation occurring. (Art. 23, ILC Draft) CIRCUMSTANCES EXCLUDING WRONGFULNESS AND DUTY TO PAY
COMPENSATION FOR THE DAMAGE CAUSED
In the Rainbow Warrior case, the Court held that the test for applying the doctrine of force
majeure is one of absolute and material impossibility. When a State invokes any of the circumstances mentioned above and the same is proven,
no responsibility is incurred by the State; however, they may still have to pay
Distress is a situation where the author of the [otherwise wrongful] act had no other compensation for any material harm of loss caused.
reasonable way of saving the author’s life or the lives of other persons entrusted to the
author’s care. This does not apply if: Art. 27(b), ILC Draft: the invocation of a circumstance precluding wrongfulness is without
1. The situation of distress is due, either alone or in combination with other factors, prejudice to the question of compensation for any material loss caused by the act in
to the conduct of the State invoking it; or question.
2. The act in question is likely to create a comparable or greater peril. (Art. 24 ILC
D) However, compensation must not always be paid.
• Cases of self-defence and countermeasures must be excluded because the
Unlike force majeure, distress requires that the State official be aware of behaving action is only taken to react to the wrongful act of another State.
contrary to international law. This official, in theory, could choose to face the serious o Right to compensation only accrues in cases of self-defence if the
danger to life and comply with international rules, rather than try to save his life or those of resulting material harm or loss has been disproportionate.
others by behaving contrary to international law. • In some cases such as consenting to the commission of an activity which would
otherwise be unlawful, it seems that compensation should also be excluded
ILC has insisted that distress may operate as a circumstance excluding wrongfulness only because there is an assumption that the consenting State knew or should have
when the life of one or more persons is at stake. But international jurisprudence has taken known that material harm or loss was most likely to occur.
a different view and held that serious threat to physical integrity may amount to distress.
DIGESTER: Liana
Session 9: Jus Cogens and Erga Omnes Obligations “Italian courts had jurisdiction over the claims for compensation brought against
Judgment 3 Feb 2012 – Jurisdictional Immunities of the State (Germany v. Italy) Germany by Mr. Luigi Ferrini on the ground that immunity does not apply in
circumstances in w/c the act complained of constitutes an international crime.” (The
There were claims against Germany lodged in Italian courts by victims of Nazi-
case was referred back to the COURT OF AREZZO).
era war crimes. They were lodged in Italy because in one case, the claimant was Italian
and in another, the crime happened in Italy. The Italian courts rendered their decision in d. Court of Arezzo’s DECISION: Although it had jurisdiction to entertain the
those cases, ignoring the state immunity of Germany. Thus, Germany brought this case case, the claim for reparation was time-barred.
to the ICJ question those decisions. ICJ found that Italy was wrong in ignoring German e. APPEAL before the CA OF FLORENCE: Decision REVERSED. Holding:
immunity, and found that Italy was obliged to render those decisions against Germany as Germany should pay damages to Mr. Luigi Ferrini. The jurisdictional
void. immunity is NOT ABSOLUTE and CAN’T BE INVOKED by a State in the
face of acts by THAT State w/c constitute crimes under international
DOCTRINE law.”
The ILC concluded in 1980 that the rule of State immunity had been “adopted as
a general rule of customary international law solidly rooted in the current practice of
States”. That practice shows that, whether in claiming immunity for themselves or ii. MANTELLI and MAIETTA CASES – Following the Ferrini judgment of the Italian
according it to others, States generally proceed on the basis there is a right to immunity Court Of Cassation in 2004, several other cases were also filed against Germany
under international law, together w/ a corresponding obligation on the part of other States before Italian Courts.
to respect and give effect to that immunity. a. (12) claimants brought proceedings against Germany in the Court of Turin
A jus cogens rule is one from w/c no derogation is permitted but the rules w/c (concerning Giovanni Mantelli and Others).
determine the scope and extent of jurisdiction and when that jurisdiction may be exercised b. A certain Liberato Maietta filed a case against Germany before the Court of
do not derogate from those substantive rules w/c possess jus cogens status, nor is there Sciacca.
anything inherent in the concept of jus cogens w/c would require their modification or (Both cases relate to acts of deportation to and forced labor in Germany bet. ‘43 and ’45)
would displace their application.
iii. In response to these cases, Germany filed an interlocutory appeal before the
ITALIAN COURT OF CASSATION requesting a declaration of lack of
FORUM State = Italy; FOREIGN State = Germany
jurisdiction.
➔ The Italian Court of Cassation issued (2) Orders in the Mantelli case (ii.a.)
Historical and Factual Background and Maietta case (ii.b.). In these Orders, the said Court confirmed that the
Italian courts had jurisdiction over the claims against Germany.
Italy was an ally of the German Reich during WWII but after the fall of Mussolini 1, (A number of similar claims against Germany are currently pending before Italian courts.)
it surrendered to the Allies and declared war on the Germany. The problem was that
Germany occupied much of Italian territory where they perpetrated many atrocities against iv. MAX JOSEF MILDE CASE – Mr. Max Josef Milde (a member of the “Hermann
the people there, including massacres of civilians and the deportation of large numbers of Göring” division of the German forces) was charged with participation in the
civilians for use as forced labor. Germany also took prisoner thousands of Italian armed massacre of 203 civilians (as retaliation for the killing of 4 German soldiers by
forces. Most of these prisoners (“Italian military internees”) were denied the status of resistance fighters) committed in Civitella, Cornia, and San Pancrazio in Italy.
“prisoner of war” and were likewise used for force labor. (These events will, years later,
a. The Military Court of LA SPEZIA’s DECISION:
lead to civil cases against Germany lodged before the Italian Courts.) After WWII, several
1. Sentenced Mr. Milde in absentia to life imprisonment; and
countries addressed the war’s aftermath amongst themselves as discussed as below:
2. Ordered Mr. Milde AND Germany, jointly and severally, to pay reparation to
the successors in title of the victims of the massacre.
Proceedings before Italian Courts b. Germany APPEALED to the MILITARY CA in ROME against part “2.” of the decision.
c. Subsequently, ITALIAN COURT OF CASSATION rejected Germany’s argument of
A. Cases involving ITALIAN NATIONALS
lack of jurisdiction and confirmed its reasoning in the Ferrini judgment that: in cases
of crimes under international law, the jurisdictional immunity of States should
i. FERRINI CASE – Luigi Ferrini was arrested in Aug 1944 and deported to be set aside.
Germany where he was detained and forced to work in a munitions factory until
the end of the war. He instituted proceedings against Germany in the COURT B. Cases involving GREEK NATIONALS (Greece was allowed to intervene in
OF AREZZO in Italy. this case on the side of Italy)
a. Court of Arezzo’s DECISION (2000): Ferrini’s claim was INADMISSIBLE
because Germany, as a sovereign State, was protected by i. THE DISTOMO MASSACRE CASE – During the German occupation of
JURISDICTIONAL IMMUNITY. Greece in 1944, German armed forces committed a massacre in the Greek
b. APPEAL before the CA of FLORENCE: DISMISSED on the same grounds. village of Distomo, involving many civilians.
c. The case was elevated to the ITALIAN COURT OF CASSATION w/c held: ❖ The Greek claimants SOUGHT TO ENFORCE THE JUDGMENTS (in their favor) IN
ITALY after being rejected by GERMANY.
1 The famous Italian dictator
• CA of FLORENCE held (in 2 separate decisions) that the judgments of the Alleged Violation of Germany’s Jurisdictional Immunity in the Proceedings Brought by the
HELLENIC SC and the CFI of LAVIDIA were enforceable in Italy. Italian Claimants.
• ITALIAN COURT OF CASSATION confirmed the CA’s rulings.
(ICJ’s caveat: The conduct of Germany (large-scale killings of civilians, slave labor, and
❖ Pursuant to the decision of CA of FLORENCE (in the first bullet of the preceding denial of status of prisoner of war and the protections that go with it) is no doubt a violation
paragraph), the Greek claimants registered w/ the Italian Land Registry (in the of international law of armed conflict applicable in ’43-’45. But the Court was not called
province of Como) a LEGAL CHARGE over a property of Germany. The property is upon to decide whether these acts were illegal.)
called “Villa Vigoni”. The State Legal Service in Milan maintained that the legal
charge should be cancelled. The legal charge was suspended pending the decision ON STATE IMMUNITY
of THIS case before the ICJ.
I. As between Germany and Italy, any entitlement to immunity can be derived
only from customary international law, rather than treaty.
ii. THE MARGELLOS CASE - The case involved claims for compensation for • Germany is 1 of the 8 States that are parties to the European Convention
acts committed by German forces in the Greek village of Lidoriki in 1944. on State Immunity (1972), BUT Italy is NOT a party so the Convention is
Greece’s SPECIAL SC held: In the present state of development of not binding upon it.
international law, Germany was entitled to State immunity.  • Neither of them is a party to the UN Convention on Jurisdictional
Immunities of States and Their Property (2004). Neither of them signed it.
Subject Matter & Jurisdiction of the Court II. Therefore, the Court must determine, in accordance w/ Art. 38 (1)(b), the
existence of “international custom” conferring immunity on States, and the
scope and extent thereof. (applying the criteria of State Practice & Opinio Juris)
SUBMISSIONS
GERMANY ITALY a. STATE PRACTICE, in this context, is found in:
Italy failed to respect the jurisdictional Germany’s claims are unfounded - Judgments of nat’l courts determing whether a foreign State is immune
immunity w/c it enjoys under int’l law by: and therefore must be rejected, apart from - Legislation of those States w/c have enacted statues dealing w/
1. Allowing civil claims to be brought the submission regarding the measures of immunity
- Claims to immunity advanced by States before foreign courts
against it in the Italian courts. constraint taken against Villa Vigoni (Italy
- Statements made by States (first in the course of study by the Int’ Law
2. Taking measures of constraint against wouldn’t object if the Court decided that it Commission “ILC” then in the adoption of the UN Convention).
Villa Vigoni has to stop undergoing such measures).
3. Declaring the decisions of Greek civil Germany can’t invoke immunity b. OPINIO JURIS, in this context, is reflected in:
courts enforceable in Italy on the basis of before Italian courts where actions were - Assertion by States claiming immunity
acts similar to those w/c gave rise to the brought due to its non-compliance w/ - Acknowledgment by States granting immunity
claims brought before Italian courts German ordinance. - Assertion by States claiming a right to exercise jurisdiction over
another
Italy’s international responsibility is (Counter-claim: Germany violated its
engaged. It should to take various steps obligation of reparation for Italian victims. III. Although there has been much debate regarding the origins of State
by way of reparation. But the Court dismissed this.) immunity and the identification of the principles underlying that immunity
in the past, the ILC concluded in 1980 that the rule of State immunity had
On Jurisdiction: been “adopted as a general rule of customary international law solidly
• Italy has no objection regarding the jurisdiction of this Court. rooted in the current practice of States”.
• Germany’s basis for the Court’s jurisdiction: Art. 1, European Convention o This conclusion is based upon an extensive survey of State practice
for the Peaceful Settlement of Disputes 2 and is confirmed by the record of national legislation, judicial
decisions, assertions of a right to immunity, and the comments of
ISSUE with HOLDING States on what became the UN Convention.
Whether the Italian courts acted in breach of Italy’s obligation to accord o THAT practice shows that, whether in claiming immunity for themselves
jurisdictional immunity to Germany. – YES. or according it to others, States generally proceed on the basis there
The action of the Italian courts in denying Germany the immunity to w/c the Court has held is a right to immunity under international law, together w/ a
it was entitled under customary int’l law constitutes a breach of the obligations owed by the corresponding obligation on the part of other States to respect and give
Italian State to Germany. effect to that immunity.
IV. The rule of State immunity occupies an important place in int’l law and int’l
relations. It derives from the principle of sovereign equality of States w/c is one
of the fundamental principles of the int’l legal order (per Art. 2(1), UN Charter).
o Immunity = departure from the principle of territorial sovereignty
2 Entered into force by Germany and Italy on 18 April 1961 “The High Contracting Parties shall submit (w/c every State has over its own territory) and the jurisdiction w/c
to the judgment of the ICJ all int’l legal disputes w/c may arise bet. them…” flows from it
o Exceptions to immunity = departure from the principle of sovereign 1. Art. 11 4 , European Convention and Art. 12, UN Convention deny a
equality State immunity in respect of acta jure imperii.
V. Germany and Italy agree that State immunity is part of customary int’l law, but
they differ as what law they should apply to determine the scope and extent Art. 11 of the EU Convention states the territorial tort principle in broad terms.
thereof. “A Contracting State cannot claim immunity from the jurisdiction of a court of another
Contracting State in proceedings w/c relate to redress for injury to the person or damage to
GERMANY: Apply the law at the time when the events took place (i.e., 1943- tangible property, if the facts w/c occasioned the injury or damage occurred in the territory
1945) of the State of the forum, and if the author of the injury or damage was present in that
ITALY: Apply the law at the time of the proceedings of the civil cases. territory at the time when those facts occurred.”

ICJ: Italy is correct. Yes, the law in force at the time when the act occurred must Art. 12 of the UN Convention
be applies 3 BUT there are 2 “acts” here—1) German acts of atrocity and 2) Italian “Unless otherwise agreed between the States concerned, a State cannot invoke immunity
act of ignoring Germany’s immunity—and the one contemplated upon by this from jurisdiction before a court of another State w/c is otherwise competent in a proceeding
case is that of Italy. Thus the “time when the act occurred” is during the w/c relates to pecuniary compensation for death or injury to the person, or damage to or
proceedings. Also: loss of tangible property, caused by an act or omission w/c is alleged to be attributable to
The law of immunity is essentially procedural in nature. It regulates the the State, if the act or omission occurred in whole or in part in the territory of that other
exercise of jurisdiction in respect of particular conduct and is thus entirely distinct State and if the author of the act or omission was present in that territory at the time of the
from the substantive law w/c determines whether that conduct is lawful or act or omission.”
unlawful.
2. 9/10 States w/c have adopted legislation specifically dealing w/ State
VI. Acta jure gestionis vs. Acta jure imperii immunity have enacted provisions to the effect that a State is not entitled to
o acta jure gestionis - private and commercial activities immunity in respect of torts occasioning death, personal injury or damage to
o acta jure imperii - imperial, public acts of a gov’t of a State property occurring on the territory of the forum state.
Both Parties agree that States are generally entitled to immunity in respect of acta 3. 7 5 of those 9 amount to significant State practice asserting
jure imperii. >> This leads us to another question: Whether that immunity is applicable to jurisdiction over torts occasioned by foreign armed forces.
acts committed by the armed forces of a State in the course of conducting an armed
conflict. GERMANY:
• NEITHER Art. 11, EU Convention nor Art. 12, UN Convention reflects
GERMANY: It is applicable and there’s no relevant limitation on the immunity to w/c a customary international law.
State is entitled in respect of acta jure imperii. • They are irrelevant to the proceedings, because neither was intended to
apply to the acts of armed forces.
ITALY: Germany is not entitled to immunity in respect of the cases before the Italian courts • Aside from the Italian cases and the Distomo case in Greece, no national
for 2 reasons: (To be discussed further in the next section) court has ever held that a State was not entitled to immunity in respect of
acts of its armed forces, in the context of an armed conflict
1. That immunity as to acta jure imperii doesn’t extent to torts or delicts occasioning a. In fact, courts in several States have expressly declined jurisdiction
death, personal injury or damage to property committed on the territory of the in such cases on the ground that the respondent State was entitled
forum State to immunity
2. Irrespective of where the relevant acts took place, Germany wasn’t entitled to COURT: Italy is wrong.
immunity because those acts involved the most serious violations of rules of int’l ➢ None of the national legislation w/c provides for a “territorial tort exception” to
law of a peremptory character for w/c no alternative means of redress was immunity expressly distinguishes between acta jure gestionis and acta jure imperii
available. - Not even Art. 11, EU Conv nor Art. 12, UN Conv features such
ITALY’S (2) ARGUMENTS (IMPORTANT!!) distinction.
- ILC’s commentary on Art. 12, UN Conv clarifies that this was a
1ST ARGUMENT: The Territorial Tort Principle deliberate choice; that the provision wasn’t intended to be restricted to
acta jure gestionis
Main thesis: Customary international law has developed to the point where a State (i.e., ➢ ON ART. 11, EU CONVENTION:
Germany) is no longer entitled to immunity in respect of acts occasioning death, personal I. (Pls read Footnote 5 first) Art. 31, on the light of w/c Art. 11 must be read,
injury or damage to property on the territory of the forum State (i.e., Italy), even if the act provides that the EU Convention is NOT intended to govern situations w/c may
in question was performed jure imperii. (Italy thus recognize that this argument only
holds for those cases where the acts were done in Italian soil.)

4 Art. 11, however, must be read in the light of Art. 31: “Nothing in this Convention shall affect any
immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be
done by, or in relation to, its armed forces when on the territory of another Contracting State.”
3 Basis: Art. 13, ILC Articles on Responsibility of States for Internationally Wrongful Acts 5 Argentina, Australia, Canada, Israel, Japan, South Africa, and the USA)
arise in the event of armed conflict, nor may it be invoked to resolve problems 2nd ARGUMENT: The Subject-Matter and Circumstances of the Claims in Italian
w/c may arise between allied States. Courts
II. The result of this is that immunity of a State for the acts of its armed forces falls
entire OUTSIDE of the Convention and has to be determined by reference to Main Thesis: Denial of immunity was justified on account of the particular nature of the
CUSTOMARY INT’L LAW. >> Therefore, Art. 11 that speaks of “territorial tort acts forming the subject-matter of the claims before the Italian courts and the
principle” can’t be used anymore to say that Germany’s acts (by its armed circumstances in w/c those claims were made. (This argument applies to all cases before
forces) is not entitled to State immunity. Precisely because acts of armed the Italian courts.)
forces are already outside of the convention by virtue of Art. 31.
➢ ON ART. 12, UN CONVENTION: (3) STRANDS TO THIS ARGUMENT
i. While this provision doesn’t expressly exclude the acts of armed forces from
its scope, the ILC’s Commentary says that it doesn’t apply to “situations 1ST Strand: The acts w/c gave rise to the claims constituted serious violations of the
involving armed conflicts”. principles of international law applicable to the conduct of armed conflict, amounting to war
ii. Therefore, Italy can’t rely on Art. 12 to support its contention that Germany is crimes and crimes against humanity.
denied of its State immunity in tort proceedings relating to acts by its armed
forces. 2nd Strand: The rules of int’l law thus contravened were peremptory norms (jus cogens)
➢ ON STATE PRACTICE in the form of national legislation (#2 and #3 of Italy’s
argument) 3rd Strand: The claimants having been denied all other forms of redress, the exercise of
i. None of the 7 States (whose legislation doesn’t exclude acts of armed jurisdiction by the Italian courts was necessary as a matter of last resort.
forces) have been called upon to apply that legislation in a case involving
the armed forces of a foreign State acting in the context of an armed conflict. -→ ALSO, Italian courts had been entitled to deny State immunity because of the
(So basta never pa sila nagamit before to resolve such a dispute.) combined effect of these three strands.
➢ ON STATE PRACTICE in the form of judgments of national courts
i. Existing judicial decisions (ex: that of the high courts of Ireland and A. Gravity of the violations (1st strand)
Poland), w/c do not appear to have been contradicted in any other nat’l • There is NO State practice w/c might be considered to support the proposition
court judgments, suggest that a State is entitled to immunity in respect that a State is deprived of its entitlement to immunity in a case of serious
of acta jure imperii committed by its armed forces on the territory of violations.
another State. • There is a substantial body of State practice from other countries w/c
ii. BUT THE REAL pertinent judicial decisions are the ones that are almost on demonstrates that customary int’l law doesn’t treat a State’s entitlement to
all fours w/ the case at hand: (similar cases during the WWII) immunity as dependent upon the gravity of the act of w/c it is accused or the
• Cour de cassation in France – Consistently held that Germany was entitled peremptory nature of the rule w/c it is alleged to have violated.
to immunity in a series of cases brought by claimants who had been • Courts in Canada rejected this notion that immunity is not required in
deported from occupied French territory during the WWII. (similar to the cases of serious violations of crimes against humanity.
Italian cases!) • In the EU Conv, the UN Conv, and Inter-American Conv, there is no limitation of
• Highest Courts in Slovenia and Poland – also held that Germany was State immunity by reference to the gravity of the violation or the peremptory
entitled to immunity in respect of unlawful acts perpetrated on their territory character of the rule breached.
by its armed forces during WWII. • The European Court of Human Rights has not accepted the proposition that
➢ CONCLUSION: After an extensive review of the decisions in Ferrini, Distomo, and States are no longer entitled to immunity in cases regarding various violations of
Margellos, as well as the provisions of the EU Convention and the UN Convention and int’l humanitarian law or human rights law.
a range of other materials, ICJ concludes that States remained entitled to immunity CONCLUSION: Under customary int’l law as it presently stands, a State is not
in respect of torts allegedly committed by their armed forces in the course of an deprived of immunity by reason of the fact that it is accused of serious violations of
armed conflict. int’l human rights law or the int’l law of armed conflict.
- German courts have also concluded that the territorial tort principle did
not remove a State’s entitlement to immunity under int’l law in respect B. The relationship between jus cogens and the rule of State immunity (2 nd Strand)
of acts committed by its armed forces, even where those acts took
place on the territory of the forum State. (of course they have lol) • This strand rests on the premise that there is a conflict between jus cogens rules
- The only State where there’s judicial practice that seemingly supports forming part of the law of armed conflict and according immunity to Germany.
Italy’s argument is GREECE. However, its very own Special SC held The Court said there is actually NONE.
that “territorial tort principle was not applicable to the acts of the armed • ITALY contends that the rule w/c accords Germany State immunity is NOT jus
forces of a State in the conduct of armed conflict” entitling Germany cogens, therefore, that rule of immunity must give way.
with immunity in the Margellos case. So actually, Greek’s State Practice - Assuming that the rules of law of armed conflict w/c prohibit murder of
taken as a whole actually contradicts Italy’s argument. civilians (and all the other acts done in the cases involved here) ARE
- Thus, customary int’l law continue to require that a State be accorded jus cogens, there is NO conflict between those rules and the rule of
immunity in proceedings for torts allegedly committed on the territory of State immunity. The 2 sets of rules address DIFFERENT MATTERS.
another State by its armed forces in the course of armed conflict.
- Remember, the rule on State immunity is PROCEDURAL. violations of international humanitarian law committed by the German Reich bet.
Therefore, recognizing the immunity of a foreign State in accordance w/ 1943 and 1945.
customary int’l law DOESN’T amount to recognizing as lawful a (2) Italy has violated its obligation to respect the immunity w/c Germany enjoys under
situation created by the breach of a jus cogens rule. (Just cos international law by taking measures of constraint against Villa Vigoni
Germany is immune, doesn’t mean its acts were right.) (3) Italy has violated its obligation to respect the immunity w/c Germany enjoys under
- It also doesn’t mean that Germany is immune from making reparations. international law by declaring enforceable in Italy decisions of Greek courts based
- If there’s no direct conflict between a non-jus cogens rule on violations of international humanitarian law committed in Greece by the German
(i.e., rule on State immunity) and jus cogens rule (rule on armed Reich.
conflict against serious crimes), then there’s no reason that the (4) Italy must, by enacting appropriate legislation, or by resorting to other methods of
former can’t be applied in this case. its choosing, ensure that the decisions of its courts and those of other judicial
- A jus cogens rule is one from w/c no derogation is authorities infringing the immunity w/c Germany enjoys under international law
permitted but the rules w/c determine the scope and extent of cease to have effect.
jurisdiction and when that jurisdiction may be exercised do not
derogate from those substantive rules w/c possess jus cogens OTHER NOTES
status, nor is there anything inherent in the concept of jus cogens In Germany’s “final submissions and remedies sought”, the Court held that the
w/c would require their modification or would displace their decisions and measures infringing Germany’s jurisdictional immunities w/c are still inforce
application. must cease to have effect and the effects thereof already in force must be reversed.
• National courts in the UK have rejected this argument about the effect of jus As to the action taken w/ respect to Villa Vigoni, the Court held that even if a
cogens displacing the law of State immunity. judgment has been lawfully rendered against a foreign State, in case the latter can’t claim
immunity, it doesn’t follow that that foreign State can be the subject of measures of constraint
CONCLUSION: Even on the assumption that the proceedings in Italian courts on the territory of the forum State or on subject that of a third State, w/ a view to enforcing
involved violations of jus cogens rules, the applicability of the customary int’l law the judgment in question. (Simply put, Italy and Greece. That legal charge on Germany’s
on State immunity was not affected. property was improper.)
As to reparations, the Court mentioned that this can be subject to further
C. The “last resort” argument (3 rd Strand) Agreements between the involved States.
➢ ITALY: Italian courts were justified in denying Germany the immunity because
all other attempts to secure compensation for the various groups of victims involved in
the Italian proceedings failed. DIGESTER: Viveka
➢ GERMANY: In the aftermath of the WWII, it made considerable financial
and other sacrifices by way of reparations, no Allied State actually got paid in full. And
yet it has paid Italy for under the terms of their Agreements.
➢ COURT: Whether a State is entitled to immunity before the courts of
another State is a question entirely separate from whether the int’l
responsibility of that State is engaged and whether it has an obligation to make
reparation.
• There’s no basis in State practice from which customary int’l law is derived
that int’l law makes the entitlement of a State to immunity dependent upon
the existence of effective alternative means of securing redress.

D. The combined effect of the circumstances relied upon by Italy


• Italy contends that the cumulative effect of the gravity of the violations, the status
of the rules violated and the absence of alternative means of redress =
Justification of Italian court’s refusal to accord immunity to Germany.
• But based on the above discussion, none of the 3 strands of Italy’s 2 nd argument
would even of itself justify the action of the Italian courts.
• Immunity cannot, therefore, be made dependent upon the outcome of a
balancing exercise of the specific circumstances of each case to be conducted by
the national court before w/c immunity is claimed.

DISPOSITIVE PORTION
(1) Italy has violated its obligation to respect the immunity w/c Germany enjoys under
international law by allowing civil claims to be brought against it based on
Circumstances Precluding Wrongfulness 2. The potential of the Danube for hydroelectric power has been exploited by some
Gabcikovo-Nagymaros Project (Hungary v. Slovakia) states and it is against this backdrop that the 1977 Treaty between Hungary and then
Czechoslovakia was signed.
In 1977, Hungary and Czechoslovakia entered into a treaty ("1977 Treaty) concerning the 3. The project would be jointly owned in equal measure by both parties and ownership
construction and operation of the Gabcikovo-Nagymaros System of Locks (essentially to would be vested on the State on whose territory the works were constructed.
construct a barrage system (like a dam) ("GN project"). This project was designed so both 4. Hungary would have control over the works at Nagymaros while Czechoslovakia
countries could utilize the Bratislavia-Budapest section of the Danube river essentially for would have control over the Gabcikovo area. In addition, Hungary was to construct a
hydroelectricity. Unfortunately, due to criticisms regarding the joint project, Hungary was dam at Dunakiliti. The Treaty also provided that the technical specifications for the
constrained to suspended and then eventually abandon its part. Czechoslovakia tried to system be included in the "Joint Contractual Plan" (JCP) to be drawn up.
propose provisional solutions, but the two countries could not come to an agreement. 5. The treaty also provided that the cost of the joint investment will be borne by the
Finally, the Hungarian Government sent a Note Verbale terminating the 1977 treaty to take parties in equal measure. Moreover, it stipulated work to be carried out by each one of
effect within 6 days. Constrained, Czechoslovakia decided to implement and subsequently them.
operate its "Variant C" solution to prevent it from sustaining further losses. The 6. The treaty also stated that the JCP would specify a water balance to be measured
Commission on European Communities mediated and the parties principally agreed to (i.e. sharing of water in the Danube by both states).
submit the dispute to the International Court of Justice. 7. In the event that the water level becomes imbalanced, share of electric power of the
parties benefitting from the excess withdrawal of water shall be reduced.
8. The treaty also stated that the parties should ensure that the quality of the water in the
Danube is not impaired as a result of the construction of the GN project.
DOCTRINES
9. The work started on Hungary's initiative, but the two parties subsequently agreed
through two Protocols signed to slow the work down and postpone the operation of
Necessity
the power plants.
1. A state of necessity may not be invoked by a State as as a ground for precluding the
10. Then, by another Protocol, both parties agreed to accelerate the project.
wrongfulness of an act of that State not in conformity with an international obligation of
11. There were profound political and economic changes during this time in Europe and
the State unless:
the project became an increasing apprehension for both Hungary and
a. the act was the only means of safeguarding an essential interest of the State
Czechoslovakia. The uncertainties were both about the economic viability of the
against a grave and imminent peril; and
project and the ecological impact of the same.
b. the act did not seriously impair an essential interest of the State towards
12. Thus, due to intense criticism the project generated, particularly in Hungary, the
which the obligation existed.
Hungarian Government decided to suspend the works at Nagymaros pending
2. In any case, a state of necessity may not be invoked by a State as a ground for
completion of various studies. They also subsequently suspended the works at
precluding wrongfulness:
Dunakiliti. Eventually they decided to abandon works at Nagymaros while maintaining
a. if the international obligation with which the act of the State is not in
status quo at Dunakiliti
conformity arises out of a peremptory norm of general international law; or

13. Negotiations were being held during this period between the parties, while
b. if the international obligation with which the act of the State is not in Czechoslovakia also started investigating alternative solutions (7 in total), one of
conformity is laid down by a treaty which, explicitly or implicitly, excludes the which was "Variant C" ("VC").
possibility of invoking the state of neces- sity with respect to that obligation; 14. VC entailed a unilateral diversion of the Danube by Czechoslovakia and a
or construction of a dam at Cunovo (Czechoslovakian territory) to essentially function as
c. if the State in question has contributed to the occurrence of the state of a replacement for the Dunakiliti portion which Hungary suspended. Of course,
necessity. Czechoslovakia protested to this.
15. In addition to this, the political situation in both states changed and new Governments
Countermeasure were confronted with new problems.
In order to be justifiable, a countermeasure must meet certain conditions: 16. In 1991, the Slovak Government (Czechoslovakia is now a federal government with
1. It must be taken in response to a previous international wrongful act of another Czech and Slovakia as states) decided to begin construction of VC.
State and must be directed against that State; 17. Discussions continued between the states but to no avail.
2. The injured State must have called upon the State committing the wrongful act to 18. In 1992, Hungary transmitted a Note Verbale terminating the 1977 Treaty with effect
discontinue its wrongful conduct or to make reparation for it; after a mere six days from receipt of Czechoslovakia of the note.
3. The effects of a countermeasure must be commensurate with the injury suffered; 19. Through the mediation of the Commission of the European Communities (which was
and the old EU) the parties principally agreed that the dispute be submitted to the ICJ.
4. The purpose must be to induce the wrongdoing State to comply with its 20. In 1993 Slovakia became an independent state. Slovakia and Hungary entered into a
obligations under international law. Special agreement concerning the GN project and agreed to establish a temporary
water regime which they agreed on after a number of negotiations, while the case was
still with the ICJ.
FACTS
1. The Danube has always been important for the commercial and economic
development of its riparian States. ISSUES with HOLDING
d. that act must not have "seriously impair[ed] an essential interest" of the
W/N there was a state of necessity which would have permitted Hungary, without
State towards which the obligation existed; and
incurring international responsibility, to suspend and abandon works that it was e. the State which is the author of that act must not have "contributed to the
committed to perform under the 1977 Treaty and related instruments – NO occurrence of the state of necessity".
5. First condition: occasioned by an “essential interest” - MET
a. Hungary’s concerns for its natural environment in the region affected by the
Hungary: GN Project relate to an “essential interest” within the meaning of the draft
1. There was a state of (ecological) necessity which justified its conduct of suspending article.
and subsequently abandoning the works it committed to perform under the treaty. 6. Second: threatened by “grave and imminent peril” – NOT MET
2. Because of this circumstance, the actions of Hungary does not fall within the ambit of a. Hungary has expressed uncertainties as to the ecological impact of the GN
the law on State responsibility, and it does not incur international responsibility by Project which is why it asked for new scientific studies to be carried out.
acting as it did. b. However serious these uncertainties might have been, they could not, alone,
establish the objective existence of a "peril" in the sense of a component
Court: element of a state of necessity.
1. The Parties are in agreement that the existence of a state of necessity must be c. The word "peril" evokes the idea of "risk": that is what distinguishes "peril"
evaluated in the light of the criteria laid down by the International Law Commission in from material damage. But a state of necessity could not exist without a
Art. 33 of Draft Articles on the International Responsibility of States: "peril" duly established at the relevant point in time: the mere
apprehension of a possible "peril" could not suffice.
“Art. 33. State of Necessity d. Also, the "peril" constituting the state of necessity has at the same time to be
3. A state of necessity may not be invoked by a State as as a ground for "grave" and "imminent". "Imminence" is synonymous with "immediacy" or
precluding the wrongfulness of an act of that State not in conformity with an "proximity" and goes far beyond the concept of "possibility". The “extremely
international obligation of the State unless: grave and imminent" peril must "have been a threat to the interest at the
a. the act was the only means of safeguarding an essential interest of actual time".
the State against a grave and imminent peril; and i. That does not exclude the view that a "peril" appearing in the long
b. the act did not seriously impair an essential interest of the State term might be held to be "imminent" as soon as it is established, at
towards which the obligation existed. the relevant point in time; that the realization of that peril, however
4. In any case, a state of necessity may not be invoked by a State as a ground far off it might be, is not thereby any less certain and inevitable.
for precluding wrongfulness: 7. The Hungarian argument on the state of necessity could not convince the Court
a. if the international obligation with which the act of the State is not unless it was at least proven that a real, "grave" and "imminent" "peril" existed in 1989
in conformity arises out of a peremptory norm of general and that the measures taken by Hungary were the only possible response to it.
international law; or
 a. Court looked at the situation at Nagymaros.
b. if the international obligation with which the act of the State is not i. Hungary maintained that, if the works at Nagymaros had been
in conformity is laid down by a treaty which, explicitly or implicitly, carried out as planned, the environment - and in particular the
excludes the possibility of invoking the state of neces- sity with drinking water resources - in the area would have been exposed to
respect to that obligation; or serious dangers on account of problems linked to (1) the upstream
c. if the State in question has contributed to the occurrence of the reservoir and (2) the risks of erosion of the riverbed downstream.
state of necessity." (Yearbook of the International Laiv Com- ii. The Court notes that the dangers ascribed to the upstream
mission, 1980, Vol. II, Part 2, p. 34.) “ reservoir were mostly of a long-term nature and, above all, that
they remained uncertain.
2. In its commentary, the Commission defined the “state of necessity” as "the situation of iii. Even if it could have been established that the reservoir would
a State whose sole means of safeguarding an essential interest threatened by a grave ultimately have constituted a "grave peril" for the environment in
and imminent peril is to adopt conduct not in conformity with what is required of it by the area, one would be bound to conclude that the peril was not
an international obligation to another State"; and concluded that the notion of state of "imminent" at the time at which Hungary suspended and then
necessity is deeply rooted in general legal thinking. abandoned the works relating to the dam.
3. The state of necessity is a ground recognized by customary international law for iv. With regard to the lowering of the riverbed downstream of the
precluding the wrongfulness of an act not in conformity with an international Nagymaros dam, the bed of the Danube in the vicinity of
obligation, and may only be accepted on an exceptional basis. Thus, this can only be Szentendre had already been deepened prior to 1980 in order to
invoked under certain strictly defined conditions which must be cumulatively satisfied. extract building materials, and that the river had from that time
4. The following basic conditions under Draft Art. 33 are relevant in this case, and must attained, in that sector, the depth required by the 1977 Treaty. The
be met: peril invoked by Hungary had thus already materialized to a large
a. it must have been occasioned by an "essential interest" of the State which is extent for a number of years, so that it could not, in 1989,
the author of the act conficting with one of its international obligations; represent a peril arising entirely out of the project.
b. that interest must have been threatened by a "grave and imminent peril";
c. the act being challenged must have been the "only means" of safeguarding
that interest;
v. Even supposing, the construction and operation of the dam would flooding, the need to ensure the protection of the environment had not
have created serious risks, Hungary had means available6 to it, escaped the parties, as can be seen from Articles l5, l9 and 20 of the Treaty.
other than the suspension and abandonment of the works, of d. The Court also cannot fail to note the positions taken by Hungary after the
responding to that situation. entry into force of the 1977 Treaty.
b. Court then looked at the Gabcikovo sector. i. In 1983, Hungary asked that the works under the Treaty should go
i. Hungary's concerns in this sector related (1) to the quality of the forward more slowly, for reasons that were essentially economic
surface water in the Dunakiliti reservoir, with its effects on the but also, subsidiarily, related to ecological concerns.
quality of the groundwater in the region, and (2) to the level, ii. In 1989, when, according to Hungary itself, the state of scientific
movement and quality of both the surface water and the knowledge had undergone a significant development, it asked for
groundwater in the whole of the Szigetkoz, with their effects on the the works to be speeded up, and then decided, three months later,
Sauna and flora in the alluvial plain of the Danube. to suspend them and subsequently to abandon them.
ii. Again, the Court found that the peril claimed by Hungary was to be e. The Court is not however unaware that profound changes were taking place
considered in the long term, and remained uncertain. Hungary in Hungary in 1989, and that, during that transitory phase, it might have
itself acknowledges that the damage it apprehended had to be the been more than usually difficult to co-ordinate the different points of view
result of some relatively slow natural processes, the effects of prevailing from time to time.
which could not easily be assessed. f. The Court infers from all these elements that, in the present case, even if it
iii. Also, Hungary had other means available to it to respond to the had been established that there was, in 1989, a state of necessity linked to
situation.7 the performance of the 1977 Treaty, Hungary would not have been
c. With respect to both Nagymaros and GabCikovo, it is established that the permitted to rely upon that state of necessity in order to justify its
perils invoked by Hungary were not sufficiently established in 1989, nor were failure to comply with its treaty obligations, as it had helped, by act or
they "imminent"; and that Hungary had available to it at that time means of omission to bring it about.
responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted.
W/N Variant C could be presented as a justified countermeasure to Hungary’s
8. Third: act challenged was the "only means" of safeguarding interest – NOT MET
(see discussion on previous number regarding the situations in Nagymaros and illegal acts – NO
Gabcikovo)
9. Fourth: act must not have "seriously impair[ed] an essential interest" of the Slovakia:
State towards which the obligation existed 1. It did not invoke the plea of countermeasures as a primary argument, since it did not
a. Court has no need to consider whether Hungary, by proceeding as it did in consider Variant C to be unlawful; but it stated that Variant C could be presented as a
1989, "seriously impair[ed] an essential interest" of Czechoslovakia, within justified countermeasure to Hungary’s illegal acts.
the meaning of the aforementioned Article 33 of the ILC Draft - a finding
which does not in any way prejudge the damage Czechoslovakia claims to Court:
have suffered on account of the position taken by Hungary. 1. In order to be justifiable, a countermeasure must meet certain conditions:
10. Fifth: State, (author of the act), must not have "contributed to the occurrence of a. It must be taken in response to a previous international wrongful act of
the state of necessity" another State and must be directed against that State;
a. Hungary decided to conclude the 1977 Treaty, a Treaty which was treated b. The injured State must have called upon the State committing the wrongful
by Hungary as valid and in force until the date declared for its termination in act to discontinue its wrongful conduct or to make reparation for it;
May 1992. As can be seen from the material before the Court, many studies c. The effects of a countermeasure must be commensurate with the injury
of a scientific and technical nature had been conducted at an earlier time, suffered; and
both by Hungary and by Czechoslovakia. Hungary was, then, presumably d. The purpose must be to induce the wrongdoing State to comply with its
aware of the situation as then known, when it assumed its obligations under obligations under international law.
the Treaty. 2. Was it in response to a previous international wrongful act of another State? Was it
b. Hungary contended before the Court that those studies had been directed against that State? YES to both
inadequate and that the state of knowledge at that time was not such as to a. Although not primarily presented as a countermeasure, it is clear that
make possible a complete evaluation of the ecological implications of the Variant C was a response to Hungary's suspension and abandonment of
GN Project. works and that it was directed against that State; and it is equally clear, in
c. It is nonetheless the case that although the principal object of the 1977 the Court's view, that Hungary's actions were internationally wrongful.
Treaty was the construction of a System of Locks for the production of 3. Did the injured State call upon the State committing the wrongful act to discontinue its
electricity, improvement of navigation on the Danube and protection against wrongful conduct or to make reparation for it? YES
a. Czechoslovakia requested Hungary to resume the performance of its treaty
6 By regularly discharging gravel into the river downstream or the dam, or by supplying Budapest obligations on many occasions.
with drinking water by processing the river water in an appropriate manner, etc. 4. Were the effects commensurate with the injury suffered? NO
7 Hungary seemed to be in a position to control at least partially the distribution of the water
a. Czechoslovakia, by unilaterally assuming control of a shared resource, and
between the bypass canal, the old bed of the Danube and the side-arms. thereby depriving Hungary of its right to an equitable and reasonable share
of the natural resources of the Danube - with the continuing effects of the
diversion of these waters on the ecology of the riparian area of the Szigetköz
- failed to respect the proportionality which is required by international law.
b. The fact that Hungary agreed, in the context of the original Project, to the
diversion of the Danube (and, in the Joint Contractual Plan, to a provisional
measure of withdrawal of water from the Danube) cannot be understood as
having authorized Czechoslovakia to proceed with a unilateral diversion of
this magnitude without Hungary's consent.
c. The diversion of the Danube carried out by Czechoslovakia was not a lawful
countermeasure because it was not proportionate.
5. It is therefore not required to pass upon one other condition for the lawfulness of a
countermeasure, namely that its purpose must be to induce the wrongdoing State to
comply with its obligations under international law, and that the measure must
therefore be reversible.

Additional argument/issue which might be asked:

Slovakia also maintained that it was acting under a duty to mitigate damages when it
carried out Variant C.
• It stated that "It is a general principle of international law that a party injured by
the non-performance of another contract party must seek to mitigate the damage
he has sustained."

Court: It would follow from such a principle that an injured State which has failed to take
the necessary measures to limit the damage sustained would not be entitled to claim
compensation for that damage which could have been avoided. While this principle might
thus provide a basis for the calculation of damages, it could not, on the other hand, justify
an otherwise wrongful act.

DISPOSITIVE PORTION
(1) Hungary was not entitled to suspend and subsequently abandon, in 1989, the works
on the Nagymaros Project and on the part of the GabCikovo Project for which the
Treaty of 16 September 1977 and related instruments attributed responsibility to it;
(2) Czechoslovakia was not entitled to put into operation, from October 1992, this
"provisional solution";
(3) Hungary and Slovakia must negotiate in good faith in the light of the prevailing
situation, and must take al1 necessary meas- ures to ensure the achievement of the
objectives of the Treaty of 16 September 1977, in accordance with such modalities as
they may agree upon.

OTHER NOTES
Summary and facts were taken from Kim’s previous digest. I modified the doctrine and the
issues to cater to this session’s lesson. The other issues may be found in the previous
digest.

DIGESTER: Liana

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