Miscellanious themes of Public International Law, Q&A

Q. How can a state's immunity in respect of their commercial acts, be lifted?

• The applicable rules are found in the UN Convention on Jurisdictional Immunities of States and their Property, often abbreviated as "UNCJIS";
• Note that the UNCJIS reflects, to an important extent, customary international law, thus, the provisions are applicable, irrespective of their entry into force;
• State immunity can be lifted in respect of commercial acts, art. 10(1) UNCJIS, therefore, a distinction needs to be made between acta iure imperii and acta iure gestionis.

Acta iure imperii vs. acta iure gestionis

• Art. 2(2) of UNCJIS refers to the purpose and nature of the transaction. As the "purpose"  test cannot contribute to a proper distinction between "private"  acts and "governmental" acts, the "nature of the transaction test" needs to be applied;
• The exception of Art. 10(1), last sentence, may be invoked by the other party to the transaction, as to lift the immunity of the State.

Q. Can the immunity of a state or its HRSO be lifted, when ius cogens norms are at stake?

• The rules on state immunity are of customary law, as the ICJ has decided in the Jurisdictional Immunties case of 3 Feb. 2012 (Germany v. Italy, Greece intervening),
• No conflict exists between the rules on state immunity and ius cogens norms, as the first category is of procedural character, whereas the second addresses substantive rights, paras 93 and 97, thus, granting state immunity from jurisdiction before a foreign court, does not imply agreeing upon the acts of another state in a sense that these acts are deemed lawful;
• A ius cogens rule is a rule from which no derogation is permitted (para 95); not according immunity and prosecuting a state before a foreign court, may succumb to a violation of ius cogens rules (p. 97);
• The conclusion must be, that no state can be deprived of its immunity, even if ius cogens norms are at stake.

Q. How does a state incur responsibility, even if force majeure is invoked?

• Applicable are the non-binding ILC Articles on State Responsibility (ILC-ASR), which reflect customary international law and are eventually endorsed by the UNGA Resolution A/RES/56/83;
• Every internationally wrongful act of a State entails responsibility, Art. 1 ILC-ASR.

Elements of an Internationally Wrongful Act (Art. 2  ILC-ASR)

• Action or omission;
• Attributable to the State ( > Chapter II of ILC-ASR);
• Constituting a breach of international obligations of the State (Chapter III ILC-ASR).

Provided that an action or omission is attributable to the State and that there has been a breach of obligations, a State may, however, invoke a ground for precluding the wrongfulness of the action or omission. With regards to the ground of  "force majeure", the conditions (Art. 23 ILC-ASR) to be fulfilled are:

• There has been an occurrence of an irresistible force;
• Or an unforeseen event;
• Beyond the control of the State;
• Making it materially impossible in the circumstances to perform the obligation.

A State will incur responsibility, even though a force majeure is invoked, if para 2(a) or (b) of Art. 23 ASR applies. The conclusion is that force majeure cannot succesfully be invoked if the state of force majeure is due to the conduct of the state invoking it.

Q. Which requirements have to be met, before the ICC can exercise jurisdiction?

• Material jurisdiction: Article 5 of the Rome Statute lists the crimes within the jurisdiction of the ICC. Note that for a crimes to qualify as either genocide, crimes against humanity and war crimes, they need to be composed of a sequence of criminal acts over time and, moreover, within a political context. Crimes are measured against these aspects in order to distinct single crimes from "core crimes";
• Temporal jurisdiction: Art. 11 of the Rome Statute provides that the ICC can only exercise jurisdiction after the entry into force of the Statute (Art. 11(1) Rome) or after the entry into force of the Statute for a certain state (Art. 11(2) Rome);
• Territorial and personal jurisdiction: According to Art. 12 Rome Statute, the ICC can assume jurisdiction when the conduct has occurred on the territory of a state party, or when the conduct was perpetrated by a person accused of the crime, national to the state party (Art. 12(2)(a) and (b) Rome Statute). Note that the UN Security Council may refer the case to the ICC (Art. 13(b) Rome).

Q.  How can the jurisdiction of the ICC be triggered?

• A state party may refer a situation to the ICC (Prosecutor) (Art. 13 Rome Statute);
• The UN Security Council may refer a situation the the ICC Prosecutor (Art. 13 Rome);
• The ICC Prosecutor starts investigations proprio motu (Art. 15 Rome Statute).

Note that referral by a state and investigation proprio motu may only be invoked in case the investigation concerns the territory of the state or a national of the state party, Art. 12(2) Rome Statute.

Q. What are the ways in which consent for jurisdiction of the ICJ in contentious procedures is given?

• Compromis or special agreement. The jurisdiction of the Court comprises all cases which the parties refer to it. Both parties can agree upon the settling of a dispute before the ICJ (Article 36(1) Statute of the ICJ);
• Compromissory clause. Parties to a treaty can include a clause in respect of disputes concering the application and interpretation of treaty provisions (Art. 36(1) ICJ Statute);
• Optional clause. The States parties to the Statute of the Court may "at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court" (Art 36(2) Statute). Each State which has recognized the compulsory jurisdiction of the Court has in principle the right to bring any one or more other State which has accepted the same obligation before the Court;
• Forum prorogatum. A State may give an implicit or explicit but "unequivocal indication" of acceptance, in a "voluntary and indisputable manner", as was decided in the DRC v. Rwanda case.

Q. According to Kingsbury, how are the phenomena of fragmentation of international law and proliferation of courts and tribunals, interrelated?

The fragmentation phenomenon refers to the uncoordinated functional development of regimes in international law. As dr. Hey puts it, an uneven normative and institutional development and evolution in inter-state relations is demonstrated. The functional aspect of fragmentation is the development of regimes, such as environmental law, human rights law, international criminal law. The geographical aspect refers to divisions, like the North-South, Euro and West-East divisions. Risks or disadvantages of the fragmentation of international law are: the inconsistent dealing with relationships between functional areas of law (human rights law vs. state immunity, Arrest Warrant case) and conflicts of law (ICJ and ICTY in similar cases concerning different functional areas). As can be concluded, fragmentation is the result of the development of functional and geographical regimes, operating independently.

As bodies of law (not: judicial bodies, but regimes) emerge as a result of functional law development, substantive rules of law are provided; different courts and tribunals aim to decide upon distinct law regimes.  The phenomenon of proliferation of judicial bodies describes the ever so uncoordinated growth of courts and tribunals in response to the development of different regimes. When more judicial bodies are involved in the interpretation of norms of public international law (the ICJ and ICTY have developed different tests on the same matter in the Nicaragua and Tadic cases), divergent interpretations can, in their turn, lead to further fragmentation. Overlapping jurisdiction may result in "forum shopping", which means that one dispute can be brought at different judicial bodies. The development of functional regimes, stemming from proliferation, again gives rise to fragmentation of international law.

Q. Which principles underlie the rules of international humanitarian law?
Any intervention in an International Armed Conflict (IAC) should be measured against the principles of humanitarian law, as set out in the Geneva Convention and its Additional Protocols. AP I applies to IACs. The four principles concerned are:

• Principle of distinction. A distinction must be made between combatants and civilians (Art. 48 AP I, 1(3) AP I and Common Article 2 to the Geneva Conventions);
• Principle not to cause unnecessary suffering. Certain means of warfare are outlawed (Art. 35 AP I);
• Principle of military necessity and proportionality. It is prohibited to use weapons causing combatants greater harm than avoidable to achieve legitimate military objectives (Nuclear Weapons Advisory Opinion, para 78);
• Principle of precaution. Civilian casualties need to be prevented and minimalized (Art. 57 AP I).

Q. Why does the Kadi (Smart Sanctions) case exemplify a dualist tendency within the European Community?
Dualism considers international law and domestic law as being two separate legal systems. A transformation from international law to domestic law is required. The Grand Chamber of the European Court of Justice, in its judgment of 3 September 2008, stated in paragraph 326 that

"The Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review of the lawfulness of all Community acts in the light of the fundamental rights, including full review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the UN Charter".

Although international law is a source of the law of the European Community, the Court "[..] cannot turn its back on the fundamental values that lie at the basis of the Community legal order and which it has the duty to protect". Therefore, the contested regulation, aiming to implement the UN Resolution, must be annulled (para 372).

Thus, since transformation of international law into domestic law is essential in a dualist tendency, the UN Resolution on smart sanctions could only be annulled indirectly, by setting aside the regulation that should implement the Resolution provisions.