c


2.What is public international law:...............................................................................................................2

2definitions: ...............................................................................................................................................2
Public international law vs private international law: ............................................................................2
Functions of (public) international law: ................................................................................................... 2
Characteristics of (public) international law:...........................................................................................2
3.The right of co-existence:...........................................................................................................................3
3.1. sources of international law: .............................................................................................................3
J Treaties: ......................................................................................................................................... 3
Customary international law: ...............................................................................................................4
Difference between treaties and customary international law: ........................................................4
Subsidiary sources: ................................................................................................................................4
Jus cogens: ............................................................................................................................................. 5
Hierarchy of sources: ............................................................................................................................5
3.2. subjects of international law: ............................................................................................................5
States: .....................................................................................................................................................5
International organizations: .................................................................................................................6
Other subjects: ...................................................................................................................................... 7
3.3. jurisdiction: ......................................................................................................................................... 7
3.4. treaties and domestic law: ..............................................................................................................13
3.5. state responsibility: ..........................................................................................................................14
The law of state responsibility: ..........................................................................................................14
The nature of state responsibility: (2 elements we need to be able to talk about state
responsibility: ) .................................................................................................................................... 15
The consequences of state responsibility: ........................................................................................15
3.6. settlement of disputes: ....................................................................................................................16
Introduction: ........................................................................................................................................16
Negotiations and consultations ..........................................................................................................16
Involvement of third party without binding result...........................................................................16
Involvement of third party with binding result:................................................................................16
3.7. law enforcement: .............................................................................................................................20
How should a state, who͛s rights have been violated, obtain redress (restitution)?.....................20
3.8. the law of armed conflict (jus inbello, international humanitarian law (IHL)): ...........................21
4 the right of cooperation ...........................................................................................................................24
4.1. human rights ..................................................................................................................................... 24
4.2. international criminal law ................................................................................................................27
exam: ............................................................................................................................................................29

c

 









?

 
    

?  
JY Old definition: body of rules that regulate the conduct of states.
JY New definition: body of rules that regulate the conduct of states and other entities which at
any time are recognized as being endowed with international personality(=UN, WTO, all int
org).

á     

   
JY Private law= domestic law dealing with cases with a foreign aspect.
JY Private law will tell you which rules coming from what country should be used.
JY Private law tells which country has jurisdiction.
JY Private law: system of law, part of states͛domestic law, utilized to determine how conflicts of
law and jurisdiction are to be resolved.
JY ·x of private international law: caraccident in spain with a swiss cardriver.
JY ·x of private international law: married in VS, but you want to devorce in Belgium
JY Private law: handles about the relationship between natural and legal persons
JY Public law: handles about the relationship between natural and legal persons and
GOV· NM·NT.

i  
     
JY egulates the co-existence of states:
- rules about borders
-rules about seas
JY egulates the cooperation between states and other entities.

!
   

    
JY No global legislation(at this moment), rules are made by states.
JY Absence of strong enforcement mechanisms. (there is no international police, even the
international court of justice is not really international, because of the absence of
compulsory jurisdiction)
JY Very diverse: international law exists in a lot of different areas
 JY It͛s a decentralized system+ horizontal system (state makes rules, states must implement
those rules= verschillende wetten naast elkaar)
JY Problem of self-interest: if 1 country doesn͛t follow the rules. This will be an incentive for all
other countries not to follow the rules neither.

O 

   

O        

JY Art. 38 pg 91 in the charter of the UN:
1.The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:Y
a.international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states;
b.international custom, as evidence of a general practice accepted as law;
c.the general principles of law recognized by civilized nations;
d.subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a caseYu
u
u
, if the
parties agree thereto.

JY  

·

human rights treaty of rome, Amsterdam,͙ (http://www.bayefsky.com/)


 
:

JY Its͛s an international agreement

JY Between states and international organizations
JY In a written form
JY Governed by international law
JY Parties bind themselves legally to act in a particular way or to set up particular relations
between themselves.
JY Multilateral, bilateral

¦




  
 

JY Signing is a first step: once signed, you must reframe as a state from any act that might
undermine the object and the purpose of the treaty.
JY atifying is an international act. Once you have ratified you have conceded(= toestaan) to be
bound legally.
JY http://europatientrights.eu/countries/signing_and_ratifying_a_treaty.html


 

JY It͛s not forbidden in public international law
JY Unless it͛s forbidden by that specific treaty
 JY Unless the reservation is incompatible with the purpose and the object of that specific treaty.

O
  
 



JY Traités contrats: Verdragen die ertoe strekken de ene partij iets te laten doen,
waartegenover de andere partij een tegenprestatie levert. Bijvoorbeeld een verdrag over de
levering van wapens.

JY Traités lois: Verdragen die gesloten worden om algemeen geldende regels vast te leggen.
Worden ook wel codificatieverdragen genoemd en leggen het geldende gewoonterecht vast.
 law making treaty: a treaty making new general rules of international law. ·xamples are all
human rights treaties.

JY Traités constitutions: Men kan besluiten bij verdrag een internationale organisatie op te
richten waarbij dan het verdrag min of meer als constitutie of grondwet van deze organisatie
fungeert.

!    

It consists of rules of law derived from the consistent conduct of States acting out of the belief that
the law required them to act that way." ( osenne, á  
u

u 

u 

, p. 55)

?
  

JY Uniform state practice: states act the same way in the same situations. There must first be
evidence of substantial uniformity of practice by a substantial number of states.
JY Opinio juris sive necessitatis: refers to subjective belief that particular practice is legally
binding,YActs must occur out of sense of obligation. The principle of International Law is that
where states believe and accept that a practice exists and must be followed because of a rule
of law requiring it, the practice becomes a part of the body of norms known as International
Customary Law. ·stablishing opinio juris can be very difficult, and
(http://nl.wikipedia.org/wiki/ echtsovertuiging)( http://definitions.uslegal.com/o/opinio-
juris-sive-necessitatis/)

!  
 




 



JY Codification= Meaning you write it down in a treaty.

          

JY Customary international law: is binding for all states as such.
JY Treaties; only binding for the countries participating

¦    
JY General principles of law:
ÊY Good Faith, includes equity
ÊY ·stoppel
ëY A state that has taken a particular position may be under the obligation to
act consistently within another occasion.
ëY When a state has acted to its detriment in relying on a formal declaration by
another state, the latter may be stopped from denying its responsibility for
any adverse consequences.
ÊY norms
 JY Judicial decisions of international courts: vorige uitspraken gedaan door international courts
als ·uropean court of justice, the international criminal court, the ·uropean court for human
rights,͙ kunnen gebruikt worden voor nieuwe oordelen.
JY Act of international organizations:
- verordeningen
- richtlijnen.
JY Soft law: political decisions taken by international organizations. Soft law is also viewed as a
flexible option - it avoids the immediate and uncompromising commitment made under
treaties and it also is considered to be potentially a faster route to legal commitments than
the slow pace of customary international law. With the passage of time, in today's globalized
society it is easy to use the media and the internet to spread the knowledge of the content of
declarations and commitments made at international conferences. In doing so, these
aspirational non-commitments often capture the imagination of citizens who begin to
believe in these soft law instruments as if they were legal instruments. In turn, it is felt that
this ultimately impacts governments who are forced to take into account the wishes of
citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft
law instruments so frequently and with such import that they begin to evidence legal
norms.(Wikipedia, maar komt ook overeen met wat lien in haar cursus zegt)

½   
JY Number of fundamental norms for the entire world with no derogation.
JY ·xamples are:
- prohibibtion of genocide
- prohibition of slavery
- prohibition of racial discrimination
- prohibition on the use of force and aggression
-torture
-crimes against humanity
JY §ou can only change jus cogens by making a new one.

ë
   

JY No formal hierarchy, except for jus cogens, these norms always prevail other rules.

O ?        !



Hierover heb ik geen cursus.

States are the only international organizations having international legal personality.

¦ 
JY Criteria for statehood:
- defined territory (size doesn͛t matter and boundaries does not have to be defined
definitively.)
- permanent population (population does not have to be homogenous) !


What about nomands?
- government ( central government operating as a political body within the law of the land
and in effective control of territory. But once the state has been established, military
occupation by another state will not affect the statehood. even if it͛s a so called failed state
 (like Somalia) which is not able to establish a government controlling most of the territory, it
will not stop to be a state͙)
-capacity to enter into relations with other states and entities (government must be
sovereign and independent so it͛s not a subject to another state. example: treaty of
friendship between Bhutan and india in which Bhutan agrees that india guides it͛s external
relations does not affect the statehood)
- are the principal actors of international law (states have rights and obligations)
-declaratory and constitutive theory: ( N,S Korea, ·W Germany, NS Vietnam, Kosovo and
Siberia,͙)
ÊY constitutive theory: recognition by the other states is needed.
ÊY Declaratory theory: no recognition by other states is needed because, the existing
situation is in fact the recognition of the state.
ÊY Kosovo is aanvaard als staat door meerdendeel van de ·U landen, maar spanje en
Cyprus doen dat niet, uit vrees dat de onafhankelijkheid van Kosovo delen van hun
land zou aanzetten tot onafhankelijkheid.
ÊY Membership to the UN is open only to states although,Belarus and Ukraine became
members of the UN although they weren͛t states.
-Y The right of self- determination: all peoples have the right of self-determination, and thus
to determine freely their political status.

c     

JY Basic characteristics:
- set up by states and/or international organizations.
- by means of a treaty (formulating common objectives)
-has one or more organs (with a distinct will, it͛s more than reflecting the will of one member
of that organization.)
-enjoys international legal personality= it has obligations and rights under international law.
-established under international law
- the international rules are applicable
JY Classification:
ÊY distinction between universal/ open and closed international organizations.
ëY Open international organization: UN, WHO: why? In principle all states can
apply for membership
ëY Closed international organizations: ·U (only ·uropean countries can enter
and there are other rules too͙)
ÊY Distinction between intergovernmental and supranational:
ëY Intergovernmental international organizations: NATO, council of
·urope,NAFTA no transfers of sovereignty (see supranational)
ëY Supranational international organizations: transfers of sovereignty/
sovereign rights of members to the organizations: so the organizations can
make decisions even if it͛s against the will of one or more members.
JY ·U has supranational characteristics/domains.
JY Security council of the UN has some supranational elements, but
other UN organs don͛t.
ÊY Functional and general/ political organizations
 ëY Functional= narrow focus. ·xample= Interpol
ëY General/political= wide focus. ·xample: UN, ·U, African Union,͙

G
   
(objects of international law, because there are no direct rights and obligations attached
directly.)(object vs. subject of int law.)

JY Liberation movements: have some rights under international lawV



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uu 

u

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V An exceptional example is the Palestine liberation organization, because all other
NLM͛s have already obtained statehood for their territories.
JY Natural persons: persons can only enjoy rights under international law if states have agreed
to this.(example: a person with a claim against another state cannot take the claim to an
international court or tribunal without intervention of the person͛s state. Tenzij dat er een
special treaty is opgericht waaronder de staat toelaat dat er direct een klacht mag ingediend
worden)
JY Legal persons:
-companies
-non-governmental organizations: NGO: it is set up by ind. And it͛s set up under national law
and not international law. ·xample: greenpeace, international committee of red cross,
amnesty international. IMPO TANT: the international committee of red cross has
international rights. ͞NGO͛s are not subject to international law, unless they provide
humanitarian relief, provide information, lobbyists or pressure groups)

O O     !



Hier heb ik ook niets extra over.

 

JY In welke mate laat international law toe om als state domestic jurisdiction over persons and
things in it͛s territiory uit te oefenen.
JY It͛s an aspect of sovereignty of states, as reflected in the principles of the equiality of states
non-interference in another state͛s domestic affairs.
JY Domestic jurisdiction can take 2 forms:
ÊY Prescription: making of law
ÊY ·nforcement: implementation of law
JY Conflicts of jurisdiction in civil matters are generally resolved by applying rules on conflict of
laws.
JY State may exercise jurisdiction if there is a sufficiently close connection between the subject
matter and the state to override the interest of a competing state

j 

 
JY Primary basis for jurisdiction
JY State is free to legislate and enforce that legislation within its territory, the main exception
being when that freedom is restricted by a rule of international law.
JY Territory: this territorial principle can be used on the following domains.
ÊY land area
 ÊY internal waters:
ÊY territorial sea:
-breadth territorial sea: up to max 12 nautical miles.
- belongs to the territory of the coastal state but ships have the right of innocent
passage (except in international straits: right of transit passage)
ÊY airspace above the areas: aircraft flying over are primarily subject to the
jurisdiction of the state of registration.
-Y Officials of a foreign state cannot take evidence or exercise other jurisdiction without the
consent of the international state. Not even in the foreign embassy, since embassies are
not foreign territory.
-Y A legal process cannot be served directly in another state, only if both countries accepted
by means of a treaty. Only in exceptional cases could the ICC of one state sit in another
state.
-Y functional jurisdiction: !


Vanaf pg 281 in boek.
1
ÊY coastal state enjoys no full sovereignty, only sovereign rights for certain
purposes
ÊY contiguous zone(aangrenzende zone):
ëY can extend beyond the territorial sea but not further than 24 nautical
miles from the baselines from which the territorial sea is measured.
ëY Coastal state is entitled to exercise the control of its customs, fiscal
immigration and sanitary laws and regulations when committed within
its territory or territorial sea
ÊY ·xclusive economic zone:
ëY Area adjacent to the territorial sea; extending up to 200 nautical miles
from the baselines from which the territorial sea is measured.
ëY Coastal state has sovereign rights for the purpose of exploring,
exploiting, conserving and managing the natural resources, whether
living or non-living, in the water, on the seabed and the subsoil.
ÊY Continental shelf:
ëY Is the natural prolongation of the land territory below the sea level
ëY Area adjacent to the territorial sea that extends up to the outer edge of
the continental shelf (is the section of the seabed that gradually slopes
from the low watermark to an average depth of 130 meters) or to 200
nautical miles from the baselines from which the territorial sea is
measured, whichever is greater.
ëY Coastal state has sovereign rights for the purpose of exploring and
exploiting its natural resources on the seabed and the subsoil
-Y Areas where no sovereign rights are exercised:
JY The area:
ëY The seabed and the ocean floor that is not part of the continental shelf
of any state: the deep seabed
ëY Is declared common heritage of mankind
ÊY The high seas:

1
http://www.rya.org.uk/infoadvice/boatingabroad/Pages/unclos.aspx
 ëY Are all parts of the sea that are not within the ··
, territorial sea and
internal waters
ÊY All states enjoy the freedoms of the high seas: freedom of navigation, freedom of
overflight, freedom to lay submarine cables and pipelines, freedom of fishing,
freedom of scientific research.
ÊY Outer space.

£
 

 
 
JY Nationality:
ëY National aspect: the law of each state determines who are its nationals:
JY Ius sanguinis: family in Belgium
JY Ius soli: place where you͛re born (ex. Green card in America)
ëY ·very state has its own system: Belgium has a bit of both, primary it uses
ius sanguinis, but when you stay for several years in Belgium, you can
become Belgian.
ëY International aspect: although nationality may be valid in the state of
nationality, sometimes it may not be recognized by the purpose of
international law.Because countries apply different rules you can have
different nationalities or you can have NON· the noteboom case!
ëY Noteboom case: he had german nationality, lived there for many years
and was born there(1930-1940). Then he moved to Guatemala for
business reasons, where he started up a very successful company. He
came back to germany and afterwards to Lichtenstein, because he
wanted to have the Lichtenstein nationality. He obtained it by paying a
huge amount of money. Then he went back to Guatemala. 2 years later
Guatemala entered the WO2 war against germany.
ÊY Notebooms property is confiscated and he͛s put in jail.
 ÊY After wo2 they released him, but property was never
compensated.
ÊY According to noteboom, Guatemala has violated human
rights.
ÊY He wanted to receive some compensation and filed
complaint against Guatemala.
ÊY He asked Lichtenstein to excercice the right of diplomatic
protection.(= state has to protect the interest of civilians
on international level. Lichtenstein should sew
Guatemala. It͛s a right.)
ÊY Lichtenstein agreed and sewed Guatemala.
ÊY Int court of justice said the claim of Lichtenstein was not
admissible, so no descision on the merits of the case.
Why?
ÊY Why: there was no real connection with Lichtenstein, he
just paid a huge amount of money and that͛s the reason
why the complaint was not admissible
ëY Active personality principle:
ÊY Used in criminal law
ÊY State has jurisdiction to his principles abroad
ÊY A state can prosecute a national who has commited a
crime outside the state.
ëY Passive personality principle:
ÊY Used quite often by the USA, when dealing with
terrorism
ÊY Not accepted in international law
ÊY Crime commited by foreigner abroad, but victim is an
American.
ÊY Prisoners of Guantanamo bay.
ëY Protective principle:
ÊY Outside territory
ÊY Commited by foreign
ÊY Victim is foreign
ÊY But crime against the vital interest of the state
ÊY Used for counterfeiting
ëY Universal jurisdiction or quasi-jurisdiction:
ÊY Accepted but exceptional (it͛s exceptional for states to
have jurisdiction under their law over crimes committed
abroad by foreign nationals against foreign nationals.
JY Universal jurisdiction:
ÊY Accepted for piracy, slavery, genocide and everything
against human rights, because these crimes are so
prejudicial(=schadelijk) to the interest of all states, that
customary international law allows any state to exercise
jurisdiction over them, wherever they take place and
 whatever the nationality of the alleged(= vermeende)
offender or victim.
ÊY part of customary international law
JY Uuasi-jurisdiction:
ÊY refer to this principle in framework of very specific
treaties. (treaty law)
ÊY certain treaties dealing with terrorism also in
corporation of universal jurisdiction, but sicne it only
applies to parties
ÊY States are very reluctant because:
 it͛s very costly
 it can endanger the diplomatic relationships between
countries.(ex. Belgium did it once, when not many
countries had accepted this universal jurisdiction. What
happened: people were scared to come to Belgium (they
could be arrested)

ëY ·xtradition:
ÊY = uitlevering
ÊY There is no general obligation to extradite.
ÊY Treaties that specify that crimes are extraditable:
ëY Double criminality principle: extradition is granted
only if the act for which extradition is asked is
regarded as a crime by both involved countries
ëY Principle of speciality: about the fact that if the
accused person is extradited, he can only be tried (=
berecht) for the crimes committed in the country to
which he͛s extradited
ëY No obligation to extradite its own nationals, but then
the state has to do the case itself !


Wtf?!
ëY No extradition for political offences
ëY Ne bis in idem principle: no extradition will take !


Ook nie helemaal duidelijk.

place if requesting state has already tried that

person ( je mag niet 2 maal veroordeeld worden
voor het zelfde feit)
ÊY 2 important instruments in ·U for extradition:
ëY ·uropean convention for extradition (council of
·urope, 1957): purpose= to simplify the
procedure
ëY ·U framework decision on the ·uropean arrest
warrant (·U,2002): purpose= to speed up, to
simplify.
  


   

JY State immunity(sovereign immunity):
ÊY Based on souvereign equality of states. This means that a state cannot exercise
jurisdiction over another state.
ÊY Initially state immunity was absolute
ÊY Now more restrictive approach:
ëY Acta iure imperii
ëY Acta iure gestionis
JY 2 aspects of state immunity:
ÊY Immunity for the state itself: (de rechter van de ene staat kan geen vonnis wijzen in
een zaak waarin de andere staat gedaagde is.)
ëY In the past it was an absolute rule, nowadays a more restrictive approach is
used, because, when you go back to the sovjet union, all companies were
owned by the state so they all joined immunity! They removed state
immunity for commercial transactions:
ëY Acta iure imperii: we talk about transactions which can only be done !


Snap niet
by a state.
ëY Acta uire gestionis: transactions that anybody can do. (real
commercial transaction)
ëY Problem: what happens if state, the ministery of defence, wants to purchase !


Snap niet
uniforms? 2 views on this matter:
ëY The Netherlands: they look purely to the nature of the
transaction.(so the example is a commercial transaction)
ëY France: they see it as a public transaction, so in the example they can
keep state immunity.
ÊY Immunity for heads of government or state:
ëY A head of government cannot be prosecuted in another country.
ëY Initially: absolute, but it͛s under pressure for serious international crimes.
That͛s why they found the international tribunals:
ëY 2 in den haag (joegoeslavia, crime court) !


For milosovic
ëY 1 in tanzania (rwanda)
ëY Can these persons be prosecuted before a domestic court?
ëY They always have the right to be prosecuted in their own country
ëY Can they be prosecuted in another country? Can Kadhafi be
prosecuted in Belgium?  no, we still have to admit that these
persons can only be prosecuted in a foreign country once he stopped
his function or when crimes happened before his function.he can
only be prosecuted for crimes commited in their private capacity !


Ook tijdens dat hij an de macht
is?
ÊY Diplomatic immunity:
ëY Diplomatic agents(= the members of a diplomatic mission)
ëY Head of the diplomatic mission= the ambassador, must be accepted
by the receival state, otherwise no immunity.
ëY Diplomatic staff
 ëY Functions of diplomatic mission: maintenance of contacts at government
level and report to the sending state about what goes on in the receiving
state.
ëY Nature and scope of diplomatic immunity:
ëY Only functional immunity: so there has to be a connection with their
job.
ëY Status of the premises(= gebouwen) of those diplo functions(=
embassy) is inviable, meaning that the receiving state cannot enter
the premises without acceptation from the ambassador. Although
the embassy does not belong to the territory of the sending state.
ëY The receiving state has also the duty to protect the foreign
embassies.
ëY Consular posts:
ëY General + agents
ëY Have to be accepted by the receival state= exequatur
ëY Functional immunity
ëY Difference consular posts en diplomatic mission: consular posts= to
protect and assist the nationals of the sending state and promote
commercial, economic, cultural and scientific relations and coopere-
ation with receiving state.
ëY Stel ge gaat naar land waar er geen belgisch consulaat is, dank an je
als lid van de ·U altijd naar een ander europees consulaat gaan.
ëY Another difference: 1 embassy, but it͛s possible to have different
consular posts in country.

O       !



Heb ik ook niets over!

c   
-Y Once treaty entered into force for a state, it does not necessarily become part of its law.
Treaty law and domestic law operate on different legal levels. A treaty creates rights and
obligations binding on states and other international legal prsons. But, when treaty
confers rights or imposes obligations on natural or legal persons, the rights can be given
effect only if they have been made part of the domestic law of the party.


 
-Y lénmaal een treaty in werking treed moeten de partijen de treaty ter goede trouw
naleven.
o mag een land zijn domestic law niet gebruiken als verantwoording van het
niet naleven van international treaty. Dus als een domestic law niet overeenkomt met
treaty, dan moet land zijn domestic law aanpassen.
-Y Is incorporation of a rule of international law into domestic law necessary? 2 approaches:
JY Monism:
ÊY Unity of entire legal order
ÊY Domestic law and international law are one legal order
ÊY ules of international law are an integral part of domestic law ( a treaty may become
part of domestic law once it has been concluded in accordance with the constitution
and has entered into force for the state)
 ÊY Used in Belgium and France, Switzerland has the most developed form of monism.
JY Dualism:
ÊY ·xistence of two legal orders: international law and domestic law exist separately
ÊY National judge functions within its domestic law system
ÊY ule of international law has no effect in domestic law unless the international rule
has been incorporated into domestic law.
ÊY Most developed in the UK. Also used in Italy and Germany and USA.

Hierarch of norms: what happens in case of a conflict between an international and national rule?

JY Monism:
ÊY International rules prevail over a national rule ( and overrides any inconsistent
domestic legislation)
ÊY A self-executing international rule can be invoked by natural or legal persons before
a national court.
JY Dualism:
ÊY International rule has no effect unless the international rule has been incorporated
into domestic law; it has then received the status of domestic law
ÊY Therefore no conflict between an international rule and national rule, but conflict
between two national rules.
ÊY Lex posterior derogate legi priori: the most recent law/ rule will prevail. So it is
possible that a new national rule can prevail over an international one.
ÊY Dualism is difficult to accept in the ·U, because some ·uropean rules have a direct
effect on national courts. These rules are self-executing, because they are
regulations with a general application. They͛re binding in its entirety and are directly
applicable in all the member states. This means that if there is a conflict between a
·U-rule and a national rule, the ·U-rule will always prevail! Countries who apply the
principles of dualism have to make an exception due to ·uropean legislation.

O   
  !


Heb ik ook niets over!

!


State responsibility is

 
  customary international law while state immunity is
mostly domestic law.
JY Is customary international law
ÊY Articles are residual: only apply when when internationally wrongful acts are not
governed by special rules of international law.(ex. Damage caused by space objects.)
ÊY Customary international law will only be applied to matters not covered by articles,
so leaving open the development of the law of state responsibility
ÊY Articles are without prejudice to the UN charter.
JY Problem is that sometimes the rules are not entirely clear and that͛s why they started to
codify(write down) the rules. At the moment this is the task of a special international
commission. This work takes place in the framework of the international law commission.
(consisting of around 20 experts in international law, they don͛t represent their country.See
final draft articles on the responsibility of states for internationally wrongful acts
(international law commission)

  
 ?    

    
 
 
JY Violation of an international legal obligation by a state
JY Violation is attributable to the state:
ÊY Organs of the state: (only the conduct of a state͛s organs of government or its agents
can be attributable to the state.)
ëY Organs can be legislative, executive or judicial in nature + persons or entities
empowered to exercise elements of governmental authority
ëY State organs include those of the national, regional or local government( ex.
Flemish authorityimputable to Belgium, even if those acts are unauthorized.
·x. Torture of policemen.
ÊY The conduct of state organs, or persons empowered to exercise elements of
governmental authority are considered acts of the state if they act in that capacity
and even if the exceed their authority (=ultra vires2)or contravene instructions
ÊY Purely personal acts cannot be attributed to the state
ÊY The conduct of private persons is attributable to the stazet only if three conditions
are met:
ëY They are in fact exercising elements of governmental authority
ëY They do so in absence or default of official authorities
ëY The circumstances call for the exercise of those elements of governmental
authority.( van gedekolonialiseerde gebieden zijn zowel de former
government als the new government responsible )
ÊY If state A is ͞placed at disposal͟ of state B to exercise elements of governmental
authority of state B, its conduct is considered an act of state B.


     

  
JY Cessation and non-repetition of the unlawful act(primaire eis van de leidende staat)
JY eparation: (vaak maar een secundaire eis)
ÊY State is under the obligation to make full reparation for the injury caused by the
internationally wrongful act.
ÊY Forms of reparation:
ëY estitution in integrum: re-establish the situation that existed before the
wrongful act
ëY Compensation: is the most common form of reparation(mostly money)
ëY Satisfaction: when an injury cannot be made good by restitution or
compensation(people got killed), responsible state must give satisfaction;
may be an acknowledgement of the breach, an expression of regret or a
formal apology
ëY De drie forms of reparation zijn niet mutually exclusive, ze kunnen dus
tezamen gebruikt worden.

2
Ultra vires volgens Maxim= acts which are unauthorized but which have been exceeded in the official capacity
of the state. ·xample: torture by Mexican policemen of a French businessman.


O    

 
c   
JY States are sovereign and therefore free to chose the method of dispute settlement
JY But according to art. 2(3) of the UN charter: states shall settle their international disputes by
peaceful means.--> states are not allowed to use force: 2 exceptions:
ÊY Self-defense
ÊY Allowance for an exceptional case.
JY 3 ways to settle a dispute.

£     
JY Is often the first step of solving a dispute. This first step exists out of direct talks
between the disputing parties. These negotiations might result into a treaty, but its
not always possible.

c  


   
JY Good offices: the third party will just provide impartial assistance. He will offer a kind of
channel of communication between the 2 parties. This method is used when the 2 parties are
not willing to enter into direct talks with each other. Third party is a kind of go-between.
·xample: conflict between USA and Iran in the 1980͛s. (passive role of third party)
JY Mediation: difference with good office is that a mediator will try to reconcile the claims of
both states. The mediator plays an active role because he will try to formulate solutions.
·xample: peace agreement between Israel and ·gypt mediated by US in camp david.(active
role of third party)
Y Good offices and mediations are more political processes and therefore they may not be
suitable for the resolution of a legal dispute.
JY Conciliation: here we talk about fact-finding. (= trying to find out what really happened in the
conflict.)
ÊY A conciliation commission finds out what happened and makes proposals about the
settlement of the dispute. ·xample of fact-finding: conflict between Hamas and
Israeli army.
ÊY The conciliation commission may draw the attention of the parties to the dispute to
any measures that might facilitate an amicable settlement.
ÊY The commission shall hear the parties, examine the claims and objections, and make
proposals to the parties with a view to reaching an amicable settelement of the
dispute.
ÊY A conciliation commission is usually composed of three to five members, one
national member of each party and 3 neutral persons chosen jointly by the parties, a
neutral member serves as chairman.
ÊY Conciliation is not binding and so less effective then arbitration or judicial settlement

c  


   
This third method requires a mutual acceptance of the competence of the entity that will settle the
dispute in advance. This kind of acceptance is a condition for membership in organizations such as
the WTO, ·U and the Co·(they have to accept the juri.
ex. ·U: as you become member of the ·U, you accept the jurisdiction of the ·uropean court of justice
or the council of ·urope: ·uropean court for Human ights. !


Or of and?

!


Klopt volgens mij niet͙
JY Arbitration:
ÊY Submission of a dispute to arbitrators (chosen by the parties, one arbitrator for each
party, the arbitrators chose together another arbitrator.)
ÊY Parties agree to accept and respect the award
ÊY Save time compared to judicial settlement
ÊY Much more expensive compared to judicial settlement
ÊY Arbitration mostly ends by compromise.
ÊY ·xamples:
ëY Permanent court of arbitration: is not really a court, we͛re just talking about
a permanent facility. Same building as ICJ in den haag. The dispute between
Belgium and the Netherlands about the ijzeren rijn rail way is been settled by
the permanent court of arbitration.
ëY Mixed arbitral tribunals: not a dispute between 2 states but a dispute
between a state and a national or legal person of another state. international
centre for the settlement of investment disputes, Iran-united states claims
tribunal,͙
JY Judicial settlement:
ÊY Permanent courts: we talk about judges ( they are not chosen by the parties)
ÊY Judges are not chosen by the parties
ÊY ·xamples: ICJ, ICT§(= international criminal tribunal for the former §ugoslavia
republic), ITLOS(= international tribunal on the law of the sea),·CJ,͙
JY International court of justice:
ÊY Part of UN: those who work for the court, including even the judges, are employed
by the UN. (ipso facto= automatically)
ÊY No extra costs, they pay annually a contribution to UN
ÊY Main traditional body !


Wa willen ze hiermee zeggn?

ÊY Statute: no separate treaty, but is part of charter of UN, so all members of UN are
automatically part of the ICJ.
ÊY Composition:
ëY 15 judges elected with simple majority
ëY They are elected by the general assembly and the security council
ëY The 15 judges must represent all the legal institutions of the world: 3 judges
of Africa (1 for civil law, 1 for common law, 1 for Islamic law), 3 judges for
asia, 2 for east ·urope, 5 for west ·urope and rest and 2 for latin America
ëY Judges ad hoc: when ICJ does not include a judge that hasn͛t the nationality !


Wa willen ze hiermee zeggen?
of a specific party. (Belgium has no judge in ICJ), they have the right to
choose a judge of their nationality.
ëY All judges have international law background
ÊY Competences of ICJ:
ëY Settlement of disputes between states
ëY Only states can file a complaint before the ICJ ( no ind, no
companies,͙)
ëY No system of compulsory jurisdiction within ICJ, the parties should
accept the jurisdiction for that specific case. (in the ·uropean court
of justice the jurisdiction is compulsory)
ëY 4 ways to accept the jurisdiction of the ICJ:
ëY eciprocal declaration: declaration made under a specific
article 36 of statute of ICJ. made by 1 state saying that the
state accepts the compulsory jurisdiction of the court in
relation to any other state accepting the same obligation.
1.Y At this moment only 66 countries made a
declaration that they accepted the jurisdiction of the
court. Only 1/5the of the permanent members of
the security council have accepted the jurisdiction.
(UK accepted) other members:
2.Y ussia: didn͛t accept
3.Y China: refused to accept the declaration made
previously by former nationalist china
4.Y France: originaly the did accept, but the withdrew it.
5.Y Us: originaly accepted, but excluded disputes that
were essentially in the domestic jurisdiction of the
US as to determine by US, but withdrawn
ëY Forum prorogatum: not often used. The state has not !


Snap ik nie veel van!
accepted the jurisdiction but can be implied from some
actions in relation to the procedees (when state is sewed for
ICJ he choses to defend his case.)
ëY Compromise: nothing more than agreement between 2
countries, in which they agree to settle the dispute by the ICJ
ëY Compromissory clause: a specific clause in treaty under
which the parties agree to submit all disputes regarding the
interpretation and application before ICJ.
ëY Most of the cases are compromissory clauses, but also a lot
of cases with declaration.
ëY Admissibility:
ëY No legal interest: ex. When claim is about the loss or harm to
one of the applicants nationals and the respondent asserts
that the person is not a national of the applicant state. The
respondant has no responsabilities towards that person.
ëY ·xhaustion of local remedies: state may not exercise
diplomatic protection or resort to any international
procedure to seek redress for one of its nationals, unless it
has exhausted all the legal remedies available to him in the
state of who͛s action he complains.(ex. Sovjet fighters shot
down an civilian airplane. Uk could immediately demand
compensation because it had no point that relatives would
go to sovjet courts͙.)
 ëY Non liquet: because international law is not complete,an
international tribunal should decline to decide a case if the
rules are not available.
ëY The applicable law: the ICJ has to decide cases in accordance with
international law. But if parties agree, the ICJ can decide ex aequo et
bono(= in het eigen vermogen en rechtvaardigheid)
ëY Provisional measures: measures to prevent the respondent from
doing something that might render any eventual judgement more or
less futile. The ICJ is willing to order provisional measures if there is a
real possibility that without them the rights of the applicant could be
affected.
ëY Procedure:
ëY When state files complaint against another state, that state
will:
1.Y Challenge jurisdiction
2.Y Claim of ICJ is not admissible and there are several
grounds for that:
ëY The other state has to exhaust local
remedies
ëY The applicant has no legal interest.
ëY egistrar of the ICJ is the source of all knowledge on
procedure and practice.
ëY Procedure:
1.Y Concise written application with the facts. Or jointly
made application if case comes by the means of a
compromise.
2.Y Parties appoint agents(= formal figure), the day to
day running is done by depute-agent.
3.Y Applicant submits memorial
4.Y Preliminary objections after receipt(=ontvangst) of
memorial. (zie hierboven.)
5.Y ICJ will hear oral arguments on the preliminary
objections and take decision.
6.Y espondent replies with counter memorial
7.Y Pleadings held on the merits.
8.Y Judgement is given at a further public hearing. ·ach
judge can make a separate declaration or give a
separate concurring or dissenting opinion.
ëY Judgement:
ëY Judgement of ICJ is only binding inter partes (between the
parties), but the reasoning can be used for international law.
ëY Separatedissenting opinion: decisions are taken by simple
majority. So a separate opinion means that the judge agree
with the judgment but follows another reasoning. Dissenting
 opinion is that they don͛t accept the judgment, neither the
reasoning.
ëY Case pending: instituted by Belgium against Senegal. Dispute about
the former president of Chad who͛s living in Senegal. 10 years ago
some Belgians accused the former president of torture and crimes
against humanity (in 2002), but the president lived already in
Senegal. At first he was indicted. But after 4 months the indictment
is been dismissed because torture and human rights were not
included in Senegal law. In 2007 the Senegal government included
torture and crimes against humanity into the penal code, but they
didn͛t arrest the former president and that͛s why Belgium is accusing
Senegal because they violated the int.law. in fact, they violated 2
important articles:
ëY If person committed torture and is living in a state who
accepted the UN convention . that state is obliged to
prosecute or extradite that person.
ëY All countries are obliged to prosecute or extradite persons
who committed crime against humanity.
ëY In this case they use a compromissory clause in the treaty against
torture. Secondly, both countries have made a declaration accepting
the jurisdiction of ICJ.
ëY Other case: Macedonia against Greece. Because of violation of
bilateral treaty. Goes about the name to be used for Macedonia.
They have applied for membership in NATO. This application was
blocked by Greece. Greece violated the bilateral contract by doing
that, because the contract said that Greece couldn͛t block the
membership of an international organization. But the contract said
also that Greece could block that if they applied under the name of
Macedonia. But not under the name of former §ugoslavian republic
of Macedonia. But Macedonia applied under the right name, so
that͛s why Macedonia condemned Greece for the ICJ
ëY Use of compromisory clause!
ëY Competences of the ICJ: Giving advice and opinion:
ëY Who asks for advisory opinion? Not states! Only specific organs
within UN can ask for advisory opinion ( general assembly, security
council and other UN organs and UN specialized agencies, if
authorized by the general assembly.)
ëY Not binding but very influential
ëY Advisory proceedings referred to the icj: advisory proceedings |
international court of justice.

O      !



Nog niets extra over

ë
 
 
 
     ! 
JY Measures not involving the use of armed force:
 ÊY etortion: is the adoption by one state of an unfriendly and harmful act, which is
nevertheless lawful as a method against another state who has committed an
unlawful act
ÊY Countermeasures(preprisals):
ëY eprisals are acts which are in themselves illegal but because they have been
adopted by one ste in retaliations for the commission of an earlier illegal act
by another state, they are lawful.
ëY equirements:
ëY Proportionality
ëY Not violating humanitarian law
ëY Must stop once they have the desired effect. (once the unlawful act
has ceased)
ëY Obligations not affected by countermeasures:
ëY efrain from the use of force
ëY Protect fundamental human rights
ëY espect the inviolability of diplomatic and consular agents.
ëY espect the rules of ius cogens
JY Measures involving the use of armed force:
ÊY Fundamental principle: states refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any stae
or in any other matter inconsistent with the purposes of the UN (art. 2 par. 4 UN
charter)
ÊY First exception: security council authorizes the use of force (security council
authorizes the use of force ( for various reasons)
ÊY Second exception: self-defence:
ëY Nothing in the present charter shall impair the inherent right of individual or
collective self-defence 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.
ëY equirements:
ëY Proportionality principle
ëY eporting to the security council
ëY Temporary character
ëY Armed attack has taken place but what about preventive self-
defence and pre-emptive self-defence
ëY Collective self-defence: for instance NATO
ëY Third exeption? Humanitarian intervention and or a responsibility to
protect?
ëY emains controversial

O  
        
  

cë  !


Nog niets extra over.

JY International rules governing the conduct of hostilities

JY Sources:
ÊY Most rules are found in multilateral treaties:
 ëY Treaties that state the rules on how hostilities can be conducted in a lawfull
manner. (hague law)
ëY Subspecies of the hague law are those treaties restricting the use of
certain weapons, rather than banning their production!!(vb. Het
verbod op het gebruik van cluster munitie!)
ëY Treaties that regulate the treatment of non-combatants (geneva law)
ëY Supplemented with additional protocols 1 and 2.
ëY Protocol 1 pays a lot of attention to the principle of
proportionality in armed conflicts.
ÊY ·ven when a state is not party to an IHL treaty, he will be bound to those rules that
now also reflect customary international law:
ëY The degree to which IHL treaties reflect customary law is controversial
ÊY International and internal armed conflict:
ëY Originaly the geneva conventions didn͛t integrate internal conflicts like civil
war. ·ven when an foreign country sends army troops on the demand of
another state it͛s considered to be an internal conflict. The additional
protocol II developed the law on conflicts between a state its forces and
dissident forces; but protocol 2 has no enforcement !


Betekent da het niet geratified
moet wordne ofzo?
ëY The distiniction between international and internal conflicts are getting
smaller. ICT§ used the protocol 2 art. 3 , and ICC has jurisdiction over crimes
committed during an internal armed conflict.
ëY Certain weapon conventions on for example landmines also apply on internal
conflicts.
ëY ICC statute lists extensively warcrimes commited during internal conflicts. So
the military commander should treat every internal conflict as if it was an
international conflict.
ëY The central principle of IHL are that belligerents(= oorlogvoerders) do not
have unlimited choice of means to attack the enemy.
ëY The use of certain types of weapons is prohibited:
ëY Conventional weapons: it is prohibited to employ weapons
of a nature to cause superfluous injury. Most detailed
modern treaty is CCWC.
ëY Complete ban of cluster munition and complete ban
of landmines. But the convention on cluster
munition only goes in when it͛s ratified by at least 30
countries, nowadays only 6 countries have ratified.
ëY Nuclear, chemical and biological weapons
ëY No specific treaty for the use of nuclear weapons,
but IHL applies also for nuclear weapons
ëY Is it lawfull to use nuclear weapons in extreme cases
of self-defence???
ëY Chemical and biological weapons are prohibited=
customary law.
ëY eprisals: if during wartime one country breaches the IHL, another
country may be allowed to respond by an action that is normaly
illegal.
ëY Treatment of prisoners of war: (in third geneva convention)
ëY Who is entitled to pow status?
ëY Determined under article 4
ëY Members of an armed force of a party of a conflict.
ëY Organized resistance movements if
ëY They are commanded by a person
responsible for his subordinates.
ëY Have a fixed distinctive sign recongnisable at
a distance
ëY Carry arms openly
ëY Conduct operations in accordance with IHL
ëY Civilian personel accompanging a force are also
included.
ëY If doubt: he enjoys protection of the convention
until a competent tribunal has determined his
status.
ëY Irregular or resistance forces like NLM do not need
to have a distinguishing mark.
ëY Mercenaries(= huurlingen) do not have the right of
POW, because they are willing to participate at war
for private interests. And they are paid in excess to
what is promised to combatants of similar ranks.
ëY Pow can not be tortured, but on capture he can be hooded
and restrained.
ëY Treatment of civilians:
ëY Belligerents must distinguish between non combatants and
combatants:
ëY Non-combatants are prisoners of war, sick,
wounded,or civilians.
ëY Must be treated with humanity. (Guantanamo does
not follow up this rule)
ëY World war 2 bombed whole city͛s͙
ëY Belligerents must distinguish between civilian objectives and
military objectives
ëY Only military͙
ëY Death of civilian property is not illegal if it was
accidental or unavoidable.
ëY Military objectives are those that, when destroyed,
offer a definite military advantage. Bombing of
munition factory is lawfull even though civilians work
in it..(= collateral damage)
ëY Occupied territory:
 ëY Primary duty of occupant is to maintain public order and
safety and to ensure the basic needs of the population.
ëY Property may not be suspended
ëY Taxes may be collected, but for new administration of the
territory.
ëY Courts need to work
ëY ·nforcement
ëY All war crimes are crimes for which there is a universal
jurisdiction
ëY Significant role of security council
ëY International committee of the red cross:
ëY Plays a crucial role in the practical implementation of IHL
ëY Safeguard the health and welfare of POW͛s (and civilians)
and correspond with their families
ëY ole of protecting power if all parties agree.(= protecting the
interests of all parties)
ëY Impartial go between
ëY UN forces:
ëY Only use force in self-defence cases
ëY UN missions are bound to IHL
ëY Problem of coalitions



 
 

  
 
 
JY Introduction:
ÊY ights of individuals, natural persons, not legal persons
ÊY Initially, this was a purely mational matter. This situation changed because of WW2.
In this period there were a lot of violations against human rights. Countries who
violate these rights are a threat.
ÊY The protection of H became one of the major purposes of the UN.
JY Universal human rights instruments:
ÊY United nations:
ëY Promote respect for human rights: one of the major purposes of the UN (see
art. 1 un charter)
ëY 1946: human rights commission was set up under the auspices of the
·COSOC
ëY 2008: Human rights commission has been replaced by human rights
council
ëY 1948: general assembly adopts universal declaration of human rights:
ëY The universal declaration of human rights
ëY Lists major human rights
ëY Common standard of achievement
 ëY Provided the foundation for many treaties, universal and regional
ones
ÊY Treaties:
ëY International covenant on civil and political rights (͚66)
ëY First optional protocol to ICCP (͛66)
ëY Second optional protocol to ICCP (͛89)
ëY International convenant on economic, social and cultural rights
ëY Optional protocol to icescr (͛08)
ëY Other UN treaties:
ëY Convention on the elimination of all forms of racial discrimination
ëY Convention against torture
ëY Convention on the rights of the child
ëY Convention o the elimination of all forms of discrimination against
women.
ëY No obligations for UN members to ratify
ÊY egional human intstruments:
ëY Council of ·urope
ëY ·uropean convention for the protection of Human rights (1950)
ëY Has become a de facto condition for membership of Co·
ëY Protects mainly civil and political rights
ëY ·uropean social charter (1961)+ revised social charter
ëY No obligations for members of Co· to ratify ·SC
ëY 43 states have ratified ·SC
ëY Protects mainly social rights
ëY Organization of American States:
ëY American convention on Human rights (͛69):
ëY No obligation for member states to ratify: 24 states have
ratified the ACH
ÊY Outline of the principal civil and political rights:
ëY ight to life
ëY Prohibition on torture
ëY Prohibition on slavery and forced labour
ëY ight to liberty and security
ëY ight to fair trail
ëY Freedom of thought, conscience and religion
ëY Freedom of expression
ëY Freedom of assembly and association
ëY No punishment without law
ëY Prohibition of discrimination
ÊY Outline of the principle eco, social and cultural rights:
ëY The right to work
ëY The right to social security
ëY The right to education
ëY The right to take part in cultural life
ÊY ·nforcement:
ëY International mechanisms of enforcement:
ëY eporting mechanism
ëY Complaint mechanisms:
ëY Individual complaint procedure
ëY Inter-state complaint procedure
ëY Collective complaint procedure
ëY Independent inquiry
ëY ·uropean convention for the protection of human rights: ·uropean court of
human rights:
ëY Composition: 47 judges: 1 for each member.
ëY Organization:
ëY 5 sections: each section counts 5 judges. ·ach section you
have ind judges, panels of 3 judges and groups of 7 judges.
ëY A grand chamber counting 17 judges.
ëY System of compulsory jurisdiction: once a country has ratified the
convention it also has ratified the jurisdiction of the court. (in
contradiction with the UN, who has no compulsory jurisdiction.)
ëY Competences of this court:
ëY Interstate complaint procedure (= 1 state files complaint
against another state)
ëY Individual complaint procedure (= individual against state)
ëY Countries have to accept both complaint mechanisms.
ëY Procedure for individual complaints:
ëY ecently changed because of the increasing use of the
procedure  they had to make it more efficient.
ëY Home come that workload increased the last decade? The
drop of the wall allowed more countries to apply for
membership of the ·U and being member of the ·U, you
have the right to use this procedure.
ëY Need to file complaint within 6 months after you used all
local possibilities.
ëY apporteur will examine your complaint en will decide if
complaint will be referred to 1 judge, 3 judges or 7 judges
(chamber)
ëY 1 judge can only say: ͞your complaint is inadmissible͟
ëY 3judges can say the same as 1 judge but unanimity is
necessary. When no unanimity, the application will be
referred to the chamber. With regard to repetitive cases=
same kind of violations in same country, they are allowed to
take a decision on the merits of the case as well.
ëY Chamber:
ëY 1) can decide on admissibility (majority, not
unanimity)
ëY 2) can decide on the merits.
ëY Procedure to file inter-state complaint:
 ëY It͛s easier: the chamber does:
ëY Admissibility
ëY Merits
ëY Judgment is binding, but ·uropean court cannot ask to
change specific country laws.
ëY Committee of ministers of Co· can ask ·uropean court to
interpret final judgment.
ëY ·U can become a party of the ·CH .
ëY Committee of ministers of Co· can initiate proceedings of
non compliance in order to make the state concerned
execute the judgment of the ·CH .
ëY ·uropean social charter and revised social charter: ·uropean committee of
social rights.
ëY Also adopted in framework of Co·, protecting social rights.
ëY Difference in enforcement no obligation to ratify
ëY Composition: no court, but a committee made up of 15 independent
experts, who do not represent the interests of the members of the
Co·.
ëY Consequences of legal value because of use of committee instead of
court: a committee adopts conclusions en decisions, but these are
just recommendations which cannot force a country to follow or
implement the recommendations.
ëY 2 mechanisms:
ëY eporting: examines the reports of states on how they
implement the provisions of the ·SC in law and practices.
ëY Collective complaint procedure:
ëY A specific NGO may file complaint against state.
ëY What kind of NGO͛s can file complaint?
ëY Trade unions.
ëY Organizations of employers
ëY Other NGO͛s defending social rights.
ëY But! Collective complaint mechanism is optional
(only 14 members have ratified͙)
ëY International covenant on civil and political rights: human rights committee:
ëY 65 counties have ratified.
ëY UN, not ·U!!
ëY Composition: committee of 18 experts.
ëY ·nforcement mechanisms:
ëY eporting
ëY Ind. Complaint
ëY Inter- state complaint.
ëY Views (= recommendations)are adopted.

 ?      

JY Introduction:
 ÊY It deals with crimes having an international dimension
ÊY No generally accepted definition
ÊY Term is used to describe those crimes that are of concern for every state.
JY Because they have such an impact on the international environment, they developed 2
fundamental principles:
ÊY 1) universal jurisdiction: any state may prosecute international crimes, regardless of
where the crime has been committed and regardless of nationality.
ÊY 2) individual responsibility: international law places criminal responsibility on
individuals who committed a crime. As a consequence: international law does not
place responsibility on a state.
JY International crimes:
ÊY Piracy: piracy is an illegal act or detention committed on the high seas for private
ends by a private ship against another ship.
ÊY Slavery: slavery is the exercise of any or all of 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.
ÊY Genocide: genocide is any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such:
ëY Killing members of the group
ëY Causing serious bodily or mental harm to members of group
ëY Deliberately inflicting on the group conditions of life calculated to bring
about the physical destruction in whole or in part.
ëY Imposing measures intended to prevent births within the group.
ëY Forcibly transferring children of the group to another group.
ÊY Crimes against humanity: the difference with genocide is that crimes against
humanity have no intent to destroy a complete group.
ÊY International tribunals: a number of international instruments en entities are
created: why? Because if states implement those basic principles, there should be no
need for these instruments. Anyway, some countries can be very reluctant to
prosecute those individuals because they have good connections with them.
ëY 1) establishment of nurenberg international military tribunal: set up by major
alliances of WO2 as a consequence of a treaty.
ëY 2) §ugoslavia tribunal: established by means of a resolution by security
council of the UN. Under chapter 7 of the UN charter why under ch. 7 of the
UN charter? And why not by means of a treaty? Because it͛s binding for the
entire membership. §ou don͛t have to wait when all members have signed
and ratified the treaty. At that time many states where unwilling to establish
this tribunal because war was still going on.
ëY 3) wanda tribunal: again done by security council under chapter VII for the
same reasons as the §ugoslavia tribunal, because wanda was unwilling to
prosecute these persons.
ëY Others are: sierra leone, Cambodia, Lebanon. These are mixed tribunals
because these special courts where made up of international judges and
national judges. They apply international and national laws.
ëY Sierra Leone:
 ëY not established under 7, but under a treaty between UN and
Sierra Leone.
ëY Jurisdiction against individuals
ëY Can move to other countries because of Charles Taylor. The
court was moved to den haag because of security reasons.
ëY Cambodia:
ëY Treaty between UN and Cambodia
ëY Lebanon
ëY Originally they had the idea to establish the tribunal under a
treaty between UN and Lebanon. That treaty was signed, but
not ratified by Lebanon (because there was no majority)
than the security council established it under Chapter 7.
ëY Jurisdiction of this court: can prosecute all persons
responsible for the murder of the prime minister and other
prominent persons.
ëY International criminal court (ICC): no longer an ad hoc tribunal, but a
permanent tribunal.
ëY Created by the treaty of rome.
ëY Based in den haag.
ëY Jurisdiction with regard to the following crimes:
ëY Genocide, crimes against humanity, war crimes
ëY Crimes of aggression
ëY Can only exercise jurisdiction of the state in which the crime
was committed if that state has ratified the statute. Or if the
state from where the person who committed the crime
comes is party to ICC.
ëY If UN security council under Ch. 7 refers alleged crimes to
the ICC.
ëY Usa, ussia, india, china, Syria, Libya are unwilling to ratify
the statute.
ëY 2 situations have been referred by the UN security council to
ICC:
ëY Darfour
ëY libya !


Tegenstrijdig met wat er hier
juist boven staat͙.daje het moet ratifyen͙


JY Victor Kuchea: he finds that there has been a violation on his human rights. To where can he
go