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International Law - When Things Go Wrong

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Mario Prost

on 11 November 2010

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Transcript of International Law - When Things Go Wrong

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WHEN THINGS GO WRONG
Compliance
Reparation
Responsibility
Excuses
Almost all nations obey almost all principles of international law and almost of all their obligations almost all of the time (Louis Henkin, How Nations Behave, 1979)
But why?
OBEDIENCE
Interests
Values
Reputation
Reprisals
For every wrong there must be a remedy
2001 ILC Articles on State Responsibility (Harris at 423)

Article 1: "Every internationally wrongful act
of a State entails the international responsi-
bility of that State"
What constitutes an international wrong?
Content of state responsibility
An action or an omission
A breach of an international obligation
Attributable to the State
Diplomatic and Consular Staff Case (US v Iran, ICJ, 1980)
An American hostage during the 1979 'Iranian hostages' crisis
“The Iranian government failed altogether to take any appropriate steps to protect the premises, staff and archives of the United States' mission against attack by the militants […] It took no apparent steps either to prevent the militants from invading the Embassy or to persuade or to compel them to withdraw […] This inaction of the Iranian Government by itself constituted clear and serious violation of Iran's obligations to the United States under the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations” (see Harris at 313)
Breach of treaty or customary law

No element of fault or intention
Acts of State organs
Acts of individuals or groups of individuals?
ILC Articles 2001 (Harris at 425-6)

Article 4 (de jure organs)

"1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions [...]
2. An organ includes any person or entity which has that status in accordance with the internal law of the state"

Article 5 (de facto organs)

"the conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law"
Principle: no responsibility of the state for the actions of mere individuals

Exception: individuals acting on the instruction of - or under the direction or control of - the state (Art. 8 ILC)

The 'degree of control' issue and the ICJ / ICTY controversy (Harris at 429-30)
ICJ in Nicaragua (1986)

"it would have to be proved that the United States had effective control of the military and paramilitary operations in the course of which the alleged violations were committed"
ICTY in Tadic (1999)

"the degree of control required by international law is “overall control going beyond the mere financing and equipping of such forces, and involving participation in the planning and supervision of military operations”
Cessation and non-repetition
Reparation
Article 30 ILC (Harris at 442)

"The State responsible for the internationally wrongful act is undrer an obligation:

a) to cease that act, if it is continuing
b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require
The obligation to make reparation
The forms of reparation
Chorzow Factory Case (Germany v Poland, PCIJ, 1927-8; Harris at 443)

"it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself"

Article 31 ILC (Harris at 443):

"the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act"
Restitution

Compensation

Satisfaction
Chorzow Factory (cont'd)

"The essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed"
Payment of material and/or moral damages
Apology
Acknowledgement
Consent
Self-defence
Force majeure
Distress
Necessity
Counter-measures
Article 23 ILC (Harris at 437)

Force majeure defined as "the occurence of an irresistble force or of an unforessen event, beyond the control of the state"

Force majeure does not operate if the occurence of the event is due in whole or in part to the conduct of the state

Force majeure will only act as an excuse if it makes the performance of an obligation 'materially impossible' (see Rainbow Warrior)
The Torrey Canyon incident
The stricken oil tanker, the Torrey Canyon, is refusing to sink despite more than a day of heavy bombing.

The supertanker, snagged on rocks between Land's End and the Scilly Isles for 11 days, began breaking up three days ago, leaking more of its cargo into the sea.

Bombing is a last-ditch attempt to send the supertanker to the bottom of the sea, and burn off the tens of thousands of tons of oil which have already formed a slick 35 miles long and up to 20 miles wide around the area.
BBC, 29 March 1967: Bombs Rain Down on Torrey Canyon
Full transcript