Public International Law II

Public International Law II

Assessment is going to be a briefing of a short case on WTO law where you need to understand the issue and reach the right answer.

What skills a good attorney should have:
· Reading with comprehension
· Listening
· Analyzing/thinking
· Speaking – a good lawyer should be able to control the audience
Reading and understanding
You must be able to brief cases effectively and you may leave out important points of a case if you use online briefs.
Arbitrator/judge should show that he/she understood the parties and their positions. Not only justice to be done, but also be seen. You are expected to understand all issues in the case and provide your logical answer. You don’t have to just provide the right answer.
In WTO you never know before parties start defending their side of the case.
Reading
What does it mean? Jurisdiction, for instance. Different lawyer have different understanding.
Every lawyer despite him/her being very cultivated or educated, he/she is still interesting in money.
John Dryden:
If you hit the politician, you can get their laws.
Listening
It is forcing yourself even if the topic is boring, not relevant etc. It is about also looking and observing of the person. How many listen to themselves? It is important to listen to yourself when you talk.
Listen to your legal instincts – there is a voice that helps you with the choice of arguments.
Airplane crash in the border of Canada and US. Where do survivors come from???
Famous baseball player – Yogi Berra citation
Thinking/analyzing
Good lawyers have coherent and systematic method of step-by-step approaching the right answer called analytical steps.
You must be able to perceive issues. In trade dispute you must realize the real situation: who is trying to protect their market who wants to break into the market etc.
You must think of timing of cases Airbus v Boeing case. Why states are using laws as their laws?
Europe had a law where some goods were genetically modified corns, soya. Austria and some other countries do not allow these products. Why? Because Europe had starvation problems after World War II, therefore they introduced subsidies for their agriculture. GIO threatened this sphere of production; therefore, these countries were strongly opposing GIOs.
Voltaire’s citation: law can be interpreted any way you want. So, judge can be misinterpret and be corrupted.
In trade agreements it is not easy to come to common agreement because trade agreements are often negotiated by diplomats.
What does ‘necessary’ in US petrol import restriction case?
Therefore, things are not always totally clear.
Writing
You must be able to understand the emphasis and the true picture of the reader when you write a piece of work. You must know your audience. As a lawyer you always write for an audience, therefore you should never forget who you are writing for.
There are tools for convincing your readers:
Arguments should be clear and the reader (judge) should know where it is leader him/her.
You must use appropriate form for appropriate occasion.
You must use the fact carefully not to make any mistakes.
One word makes a lot differences.
Mark Twain’s citation: if you use adjectives, ask yourself why you are using them in your paper?
US case: chewing tobacco. Judge by understating the problem, make the prose very effective. Not many judges make these kind of funny statements.
Speaking
Content – a good speaker knows what he/she is talking about; other factors like eye contact, body language etc.
Legal analysis - common problems
You must show how you reach the answer with the proper process.
Skipping key points – you should organize your way to reach the right answer.
Facts can be wrong, application of law can be wrong. Data ought to be updated and come from reliable source.
Translation: WTO very ambiguous translation in English while crystal clear in French and Spanish.
Oliver Twist
A woman tried to steal something from the store and she was caught. According to English law, there was a legal presumption that the husband was found responsible for his wife’s deeds.
What does kill lawyer mean?
Fitcher revolution was led by Jack Cade and he achieved this by killed some of the lawyers who were the instruments of a state.
WTO do not follow Common law system but WTO courts still follow previous decisions for legal certainty and coherence purposes.
Lack of understanding – “urbane” word.
1936 US case “Low tie” tides that are lower than lower low, and it sometimes becomes extremely tied.
Another US case
IT is a rule of evidence that positive testimony … negative testimony etc. (Not clear at all)

Muddled thinking – too complicated sentences.
Logical errors
Political and Economic issues

Who briefs are important?
Parties of disputes respond to the other side. There are also third states who are interested in the resolution of a state. The latter ones are actually players of disputes but WTO decisions are not binding on them.
Amicus curie – friends of a court
Briefs provided by international non-governmental and business (trade) organizations, environmental organizations, professors etc.
Substantial trade interest is reason for joining of third countries into the dispute. Example: Banana case: some other countries were allowed to participate in the case.
Problem: there are no WTO rules regulating amicus curie.
4 stages:
1. Consultation – third parties can express their interest in participation
2. Panel – 3 official – trade or retired officials or any persons connected with international trade
3. Appellate
4. Appeal
Who is on tribunal? Who are the judges?
Usually, these are 3 judges in courts. It is much difficult to find out in case of Panels. Panelists are not allowed to come from the same country as disputants, therefore, there are no many judges
Third parties do play active role in dispute settlements but expressing their views.
Cases are usually closed cases and only two cases were open door – GEO.
Arguments made by parties are not binding on themselves. There have been inconsistencies in US.

What is the dispute about? Underling facts and arguments of both parties. All panel and appellate body reports are publicly available.
What is applicable law?
There are 3 general areas of WTO law: goods, services and IP. Some cases can involve all. Also, which laws and provisions specifically apply. Other agreements may be relevant and apply too. Vienna Convention 1969 for instance in relation to interpretation.
WTO cases have two elements:
Factual elements – factual conclusions of a panel
Appellate body deals only with issues of law and legal interpretation. Therefore, your brief will look different in different levels.
In panel there are two parts: substantive and procedural.
In case of gasoline – Article XX.
Technical regulations, deadlines, amicus briefs things that do not affect treaties and other provides where the rights of parties derive.

What substantive legal findings did the Tribunal make? The holding
Holding the most important issue found by court. Key ruling of an appellate body on the most important point. Usually, holdings are in the latter parts of the court decisions.
Political and economic issues
Economic issues to keep its rules on important gasoline
Policy
Even it may have looked as protectionist, the initial policy was for environmental reasons, i.e. clean air.
Are there important systemic issues involved?
These are issues which are important for multilateral community as a whole. Air pollution, Article XX for instance. Sometimes procedural issues like amicus briefs. That’s why EU and US usually find the way to participate in disputes.
Do you agree with the outcomes?
You don’t have to write your attitude of the case but you can write something to allow you to use it afterwards for your own reference.

Questions: whether US actions were primarily aimed at discrimination? XX (b) – requires also necessary test.

Problem areas in WTO
It is sometimes very difficult to compromise among WTO member states and the number of members is growing with the last country Vietnam whose application was approved.
Sometimes courts have to fill in the blanks and gaps that were not agreed by WTO members.
Quad countries – US, Canada, Japan and EU. Before they used to act in the best interests of the organization but quite soon, for instance, US started to use anti-dumping measures against China.
States particular try to protect their states by measures like safeguard, anti-dumping, subsidies etc.
Safeguard – used at time to import surge and usually used for a particular time

Legal approach – panels
Appellate bodies decisions only deal with questions of law and
Panel is a finder of facts unless the Panel did not make an objective assessment of facts.
Appellate body can only do 3 things:
1. Uphold
2. Reverse
3. Modify
How WTO treats national laws?
Usually, Appellate body treats national laws as questions of fact.
4 stages of dispute settlement:
1. Members submit to DSB for consultation, if not successful by approval of … dispute goes to the Panel
2. Panel – WTO Secretariat keeps a list of persons who can serve as panelists. Then, secretariat proposes where judges should come from and parties choose. There is a hearing attended by delegations, etc. Other countries may use services of WTO or private firms. It is more a diplomatic process. Usually 2 hearings and 2 …
It is more like in civil law system where judges ask many questions from parties. Use of experts is sometimes used for instance, GEO, pesticides etc. Expert witnesses can be invited by parties or the panel itself or others. Panel will recite arguments of parties and third parties and then write its report. Then, it confidentially submits its reports to relevant parties. When you appeal Panel decisions, you can only appeal questions of law or legal interpretation.

Assessment
1. Format is set by them, 1.5 spacing Arial font-12
a) Title of the case
b) Parties
c) Judges
d) Facts and law
Legal findings of Tribunal and common sense are the most important.

Legal approach
Officially there is no stare decisis and usually there is no compensation for breaching WTO law and usually retaliation is allowed by injured country.
Panel and AB cannot alter the balance of rights and obligations in WTO agreement. AB by allowing amicus brief, it is hard to tell whether judges alter the rights.
Losing party can block GATT decisions. Panel and AB decisions are automatically applicable.
Confidentiality obligation
Even briefs are confidential and they are not disclosed before the case is resolved.

UK and US dictionaries are used in order to come to an ordinary meaning of words stated in Article XX.

Wednesday, November 08, 2006
International organizations

NGO are created by private individuals like Green Peace, Amnesty International etc
ICRC is very particular organization.
IGO has organs, its establishment acts etc
International organizations – ILO, WHO etc.
What international organizations doing?
Cooperation, create rights and obligations etc.
End of XIX century… It was created in 1874, under the name "General Postal Union", as a result of the Treaty of Berne signed on 9 October 1874. In 1878, the name was changed to "Universal Postal Union".

Particular structure of PIL
Coordination – all states are equal and sovereign legal speaking. If want state submits to something, it is binding it. Yet, consider ius cogens that is not necessary binding only to states that submit but to all states whether you agree or not.

No mandatory jurisdiction – if A owes B, then you can refer to judge to enforce your right to give your money back. Since there is no mandatory jurisdiction in international law, more coordination among states is required.

What do IOs do – 2
Political coordination
Administration
Setting standards – for instance in the field of health, also in WTO law.
Lawmaking – international organizations prepare some international laws but states only make laws. Sometimes some organizations like Security Council
Dispute Settlement or adjudication – from negotiation all the way up to adjudication where decisions are made by courts

Families or Group of IOs
UN etc
EC, OAU, OAS, Mercosur etc.
UN and specialized agencies
UN and specialized agencies
EU and the EC
European economic community and European Atomic community are the basic founders of EU and EC. Steel and coal committee elapsed in 2001.

Bretton Woods was established in 1944 and it had two specialized
IDA – specialized in giving credits to poor countries mixture of bank and charity organization
IFC – gives investors some money into investment into developing countries
ICSID – arbitrary agency. If your investment is nationalized by one state, then ICSID resolves these kinds of issues.
MIGA – guarantees that you get your investment and some percentage from your investment.
Expropriation is only lawful if only:
· There is public concern and
· There should be compensation for expropriation

You cannot become a member of WB without becoming member of IMF. Also, you must be a member of WB if you want to get money from IFC.

Who is acting for IOs? – 1
Popular examples – Finland in European Council, Lamy, Barozo etc
Institutional structures
Representation vs. internationalization
IMF 170 members and 24 are represented in Executive Directors
In ILO General Conference there is a tripartite system where state are also represented by trade unions and entrepreneurs.

Who is acting for IOs – 2
Equality vs. weighted voting (in particular this happens in Bretton-Wood as states do not have equal votes in accordance with states subscription, so 10 states have 90% of votes) and Vetoes
International organizations make their decisions in accordance with credit worthiness (liquidity). So, weighted voting saves these organizations.

Definition of IO
Based on an international treaty
Based on international membership
EU cannot become a member of European Council
Designed for longer term for co-operation – international catastrophe example
With organs – GATT did not have any organs, which created a lot of problems where only Capital letters of contracting parties were used in GATT conferences.
Legal personality from part of member states. It can conclude treaties, buy and sell stuff ect.
Members
Open or close
Whether Turkey, Morocco are European and can join EU or not?
There is no territory requirement.
Conditionally open – half open
WTO
States members and other subjects of PIL
EC in the FAO
Holy See in the IAEA – only observer in the UN
Why Vatican is not a state? Article 42 of UN; Monaco, San Marino could not provide their own troops.
Link on info about which states are not UN members:
http://geography.about.com/od/politicalgeography/a/nun.htm

IOs and PIL
Created by law – Treaty of establishment
Article 108 of UN provides exception how UN Charter can be changed.
103 prevalence of UN Charter.
What Article XXI say?
If SCUN has mandated sanction, following sanctions of SC is not violation of GATT law.
International enterprises
Eurofirma, Interfrigo – created by member states but regulated by national laws of those states
Bank for International Settlements – located in Basel which is international organization per se but working under national laws.
Air Afrique – Air France and Africa – legal person of African states and France. African states sold their share to France.
Intelsat – communication satellites – based on international agreement –
Acting within the law
Uniting for peace
Only SC can make rules binding on parties while UN can only make recommendations. 1950 Korean war, 1951 UNSC decision is blocked. UN states we are doing as uniting for peace resolution. Now, it is customary law that UNGA can create binding decisions.
Emergency Special Sessions
The General Assembly may take action on maintaining international peace and security if the UN Security Council is unable, usually due to disagreement among the permanent members, to exercise its primary responsibility. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefore. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations.
The "Uniting for Peace" resolutions, adopted in 1950, empower the Assembly to convene in emergency special session to recommend collective measures – including the use of armed force – in the case of a breach of the peace or act of aggression. Two-thirds of the members must approve any such recommendation. Emergency special sessions under this procedure have been held on ten occasions. The two most recent, in 1982 and 1997 through 2003 respectively, have both been convened in response to actions by Israel. The ninth considered the situation in the occupied Arab territories following Israel's unilateral extension of its laws, jurisdiction, and administration to the Golan Heights. The tenth was triggered by the occupation of East Jerusalem and dealt with the issue of Palestine.
At the first Special Session of the UN General Assembly held in 1947, Oswaldo Aranha, then head of the Brazilian delegation to the UN, began a tradition that has remained until today whereby the first speaker at this major international forum is always a Brazilian.
Privileges and immunities

Creating law
Only EU can make laws
District regulations
Contracting out procedure – there is a decision about standards of WHO and this decision is only binding on member states unless after two months a member declares an intention not to be bound.
Territorial jurisdiction – Kosovo; Administrator is responsible for SC and supervises local authorities. This happens in failing states to take authority of old state. In Iraq the situation is different because it is a matter of force in Iraq. So, in Kosovo Administrator has law-making power too.

Forum for negotiations

WTO
Director General and Secretariat
GC decides on its own behalf not as 150 members. GC also applies as DSB or Trade Policy R Body as organs. DSB is not a political organ but only approves the decisions reached by the Panel and the Appellate Body.
Implementation – WTO prepares decisions and sessions.
Active administration –
· AB secretariat / Legal service
· Granting funds for capacity building
· Preparing the budget
Lawmaking
No secondary law making
Dispute Settlement – member states committed themselves to be bound to DSB.
Panel and Appellate Bodies only recommend but there is a negative veto procedure as a safeguard of binding power of DSB decisions.
Member driven?
No legislative initiative
Even Appellate Body was criticized for accepting amicus briefs.
In WTO law WTO does not take actions against its MS.

Dispute Settlement in PIL
A US plane was shot down by Cubans that was flying over the coast of Cuban sea. US found that the plane was shot when the plane was flying over high waters. Cubans responded that since it was spy plane, Cubans had a right to shoot it anyway. You are in the US side and your suggestions?
What would be options in this case?
· Negotiation
· Dispute settlement by arbitration
· Retaliate – very archaic way of dispute settlement
· powerplay

Default judgment – ex parte decision
Nicaragua case – outcome US lost

· About facts – state behavior, territorial questions etc.
· Existence of treaty obligations
· Treaty interpretation
· Existence of customary law

Power play
Autonomous interpretation
Acceptance of submission to courts
Hugo Grotious: Even the most powerful state should think of compliance with international law since sometimes even powerful states may need some applies. Therefore, US may try not doing it openly and attempting to justify.
You need a peaceful solution to a dispute and if it is not possible, then you must ask the assistance of a third party.

1. Diplomacy
Dispute prevention
Dispute settlement
Ad hoc tribunal – arbitration
It is more flexible and maybe it is better for parties
Courts
Composition and procedure independent
Terms of reference –
A Terms Of Reference is a document which describes the purpose and structure of a project. Otherwise known as a TOR or a Project Charter, the "Terms of Reference" is created during the Initiation Phase of the Project Management Life Cycle.
Creating a detailed Terms of Reference is critical to the success of the project, as it defines the project:
· Vision, objectives, scope and deliverables (i.e. what has to be achieved)
· Stakeholders, roles and responsibilities (i.e. who will take part in it)
· Resource, financial and quality plans (i.e. how it will be achieved)
· Work breakdown structure and schedule (i.e. when it will be achieved)
The Terms of Reference sets out a roadmap for the project. It gives the project team a clear path for the progression of the project, by stating what needs to be achieved, by whom and when. The project team must then create a suite of deliverables which conform to the requirements, scope and constraints set out in this document.
The Terms of Reference is created immediately after the approval of a project Business Case. It is documented by the Project Manager and presented to the Project Sponsor for approval. Once approved, the project teams have a clear definition of the scope of the project. They will then be ready to progress with the creation of the remaining project deliverables.
Questions of law are up to courts to decide.

Procedures
Disputes between states
Standing of individuals
ECJ
HR courts
Criminal procedures against individuals

Diplomatic settlement of disputes article 33
Negotiation – bilateral
Inquiry – you ask third party about the facts
Mediation –
Conciliation – third party is more active and proposes options for both parties
Good office – usually a foreign affairs minister who travels from capital to capital trying to narrow the disputed issue

SC – has a right of inquiry if it wants to do so. There is no control by whomever over SC.

Article 38
It does not include the law of international organizations, which is secondary law and actually applies.
Assessment
Some smaller cases will be deal on Thursday afternoon. 1600 words or 4 pages in total.

Efficiency of going to courts
Maybe it is very expensive and hire highly qualified lawyers.
Another question to ask is whether the situation will be better?
In 1990s Draft Article 94.2 a SC was allowed t step in when a party is not complying with the decisions of ICJ if SC deems it as necessary.
In Nicaragua case US refused. Another famous case LaGrand case. Another Mexican case appeared wit similar facts.
Article 95 specialized system – refers to special rules Article 103
If don’t find any provisions in DS, then you cannot refer to PIL since Appellate Body states: DS rules cannot be seen in clinical isolation in the Gasoline case. Sometimes AB decides that some provisions
USE ONLINE DATABASE OF WTI ask Christian

Article 22, 23 and DSU norms
There is a difference in DSU and other provisions that are not similar.
Nullification or impairment of a benefit such provisions do not exist in ordinary PIL but only in DSU. These provisions come from old GATT. There is a presumption – sufficiency to assume. If party A breaches treaty obligations B state can presume that there was a nullification by another state.
If a party is subsidizing some its goods the other party may suffer some loss because of that. Therefore, even perfect subsidy can serve as a basis for claiming the breach of a right under Article XXII and XXIII.
23.1 DSU – balance sheets should remain unaffected.
Article 4, 5 and 25 talk about alternative methods of dispute settlement

Advantages
Fragmentation – use of defense by other PIL can justify not to apply DSU because lack of jurisdiction???
DSU has a danger to cover only part of PIL.
If two courts decide different Softwood Lumber case. There were NAFTA norms and WTO norms. There were two courts and the results were different.
http://www.american.edu/ted/USCANADA.HTM

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State responsibility

There are primary and secondary obligations.
Primary obligations – immunity for diplomats
Secondary obligations – omission of fulfillment of obligations
Terminology: reprisal – answer to an unlawful act which would be usually be also unlawful countermeasures
Retorsion – unfriendly acts.
Ships not lowering their flags in response to the first ship as a breach of courteousy
Damages include immaterial damages.
Causality – there should be a link of act and its reason. If an act of a state caused a damage, then there is a causality.
Damage could not have happened if no action has happened.
Violation – sometimes states are responsible even they don’t fall within the its
Moon and celestial bodies. Activities in space. If satellite falls down, it may cause some damage. There is an absolute object liability. State is responsible for its effect.
Non-violation –
In WTO there is responsibility for passed damages. In WTO you only have to repair damages in the future after the DSB decision is made. So, there is retroactive liability in WTO law.
Who bears the damage?
In PIL and WTO law the one who violated bears the risk of damage. Material and immaterial damage. Responsibility goes far beyond state responsibility in reality.
Damages can be made to the territory, public servants etc.
Law of aliens – minimum standards.
Aliens – citizens of a state in another B state. B has to secure life of not only of its citizens but also of foreigners, i.e. equally. Expropriation of alien’s property is violation. Human rights are individual rights while alien’s rights belong to states. So, if Swiss are mistreated abroad, then Switzerland can take action against. In parallel, an individual can defend his/her rights independently.
General principles of law
1- Reparation
2- Compensation
3- Satisfaction
Sources of PIL
· Customary law
· General – particular (Latin American)
· Neminem laedere – don’t inflict any harm/damage to anybody – otherwise an obligation to repair a damage arises
Chorzow:
Codification
UN
Mandate to the ILC by the UNGA
The mandate was restricted only to secondary rules, what happens when an obligation arises. They do not specify when these cases take place as well as unlawful acts committed by other persons of international law.
Soon maybe ILC Draft will become a treaty like a Vienna Convention. However, ILC added more provisions than in customary law.
ICJ in Gabcikovo:
So, draft articles are used as textual forms of customary law.
Anton’s comment: These articles are not Draft anymore but actually already a law.
Checklist
· Violation
· Violation of PIL norm
· Was it by a subject of PIL – covers only states
· By an action or omission
· Causality
· No intent or negligence necessary
· Damage- detriment of a PIL subject
· Duty – full restitution or full compensation – Airbus case and Fuji Kodak case
Examples of violation
Breach of treaty
Bilateral treaty or multilateral treaty – use of force in the cases of self-defense is illegal under UN charter. Also it is a breach of customary international law too. Now, non-use of force became ius cogens.
Rights of natural persons
Minimum standard
Expropriation no remedy
La Grand case
Slander of a foreign head of state

Without justification
· Self defence
· Consent – article 20. Forceful entrance into other states territory is usually illegal but can be justified under this
· Force majeure
· Distress
· Necessity - I could not do but…
· Eg: airplane loses its control and falls on the foreign territory. You may still have to pay damages but it is not a violation.
· Countermeasures – 22, 49-54 that would be unlawful but…
· It is an unlawful response to an unlawful act of another
· Not: Internal law justification – there is no such justification
· Not: ius cogens
· Use of force – any forceful physical act done in the foreign territory.

Of a PIL norm
Treaty obligation
Customary law obligations
Erga omnes
What everybody can do? Every state can
Barcelona Traction case

By a subject – legal entity
Attributable to states
Persons
Teheran hostages case – not everything that happens in foreign territory is attributable
Other states may help you in doing your action.
By action or omission
No fault necessary
Intent
Negligent
So, it is object principle

Causality
Damage to the detriment of a PIL subject
Sometimes so-called Mother states may claim damages: Cyprus on behalf of Northern Cyprus.
Injured states
Direct rights
Group rights
Multilateral treaties

Duties derived from responsibility
Reparation
Full compensation – not possible if Picasso painting
Full compensation + interest
Even if justified, if material loss (27b) – plane crash – reconstruct the ruined houses
If
· Restitution is impossible
· Const of restitution is totally out of proportion
· Proportional
· Not humiliating

Additional rules for serious breaches
· Gross or systematic violations of ius cogens
· Cooperation of all states
· No recognition
Iraq invasion of Kuwait. All states have to cooperate and all should protest against this.
· No aid

Stimpson doctrine – when one state tried annex a territory by force, then all states should not recognize this act and this becomes unlawful. Eg: Northern Cyprus.

Who are parties: injured state and wrongdoer
Other states (Article 42)
1. Individually violated
2. Specially affected – what does this mean?
Multilateral agreement – MEA Kyoto protocol let’s say. If one of the states violates this treaty, some states are affected while some are not. Here, there are some special rights which do not exist in other states. Iceland breaches some rules, Australia takes countermeasures – this case is not acceptable.
3. Specially benefiting states
Demilitarized area – states agreed to get rid of all nuclear devices but one of the states starts to breach these obligations, then the whole balance breaks down.
Regional alliance – one states violates an alliance, i.e. regime. Then, the similar outcome takes place.
State A does not allow sailing ships under state B flag. It does not allow passing through its channel. This is a violation of allowing the ship in. It is immaterial damage and deprival of privilege.
Restitution – allowing the ship in. There should be a good reason why apply one or another form of curing a damage.
Satisfaction in particular refers to immaterial damage.
Ius cogens use of force is prohibited.
Another option is trade embargo – reprisal or countermeasure as it is called now.
Be careful not to confuse with retorsion. If there is no treaty between states in relation to trade, then it would be only a retorsion- unfriendly act.
The next step would be enforcement. How should this be done? You may ask SC to make a decision. In this case SC may be very happy to accept the case.
There is a tendency that countries from related families may veto a decision of SC, therefore, our dictator may not be dealt with. For instance, USSR etc
Simple bilateral treaty case
One of the possible consequences is under Article 49.
Injured state and only injured state can take countermeasures.
A state owned ship spills over the poisoned waste that affects not only A but also C, D countries. Fishing rounds were affected and there was a multilateral agreement among 15 states.
Whether it is attributable to a state?
Article 4 no
Article 5 empowered by the law of that State
Article 6 – when A state sent some troops to another state – not applicable
Article 8 – let’s say it is a private company but it belongs to a state – so state is exercising its supervisory powers
Justification – no
Damage – yes even to two other
Who can react by countermeasures?
Only injured member states. So, only specially affected states 42.b.1.

Continuation of the case: increase of arms – violation of treaty
No justification
What can they do? Nobody has been attacked?
All specially benefiting states because all the states common benefits were violated.

Claiming on behalf of other states
57 total states
3 affected
54 do not have any rights to act – they can only require the compliance from violating states

Countermeasures
You cannot force a state to go to court, you cannot send police.
Basically sanctions – economics etc.
Procedures (52)
You cannot start a countermeasure before all adjudication means are exhausted that are foreseen in the Draft article.
France v US – agreement on arbitral tribunal – aircraft landing rights in US.
No special rules?
What are special rules? – WTO, as WTO law is full of rules. Article 22 called implementation but actually countermeasures
Admonition – notice to comply with order
Prior notification – notify about the countermeasures the wrongdoer.

Substantive limits
Rights intention – only to induce the state to comply not to punish.
Temporary and reversible – if countermeasures leads to starvation of people, that is not allowed. Also because of against ius cogens
Proportionality – issues raised whether Israel’s actions in Lebanon was proportional. Proportionality is well known in German-French laws, but new in GB etc.
Article 53 – countermeasures should stop when violation stops
Absolute limits – measures that cannot be taken – ius cogens
Article 52 and 55 natural rules lex specialis prevail over general rules