CASE LAW
Week 1: Law of Treaties, Sources and Introduction
Kadi and Al Barakaat v. Council and Commission
o Introduction to international law
Facts: The applicants argued that the EU-regulation violated Mr Kadi’s right to be
heard, his right to property and lacked effective judicial review.
Question: Were fundamental rights violated?
CJEU: Yes, some important fundamental rights were violated and the EU-measures
were invalid. This decision was quite controversial, because the Court decided on
the basis of EU-law, while the source of the measure was the Security Council. As a
result, the Ombudsman was created.
Reparation for Injuries
o Legal personality United Nations
Question: Do the United Nations have legal personality?
ICJ: The UN do not only have the explicit powers as expressed in the UN Charter,
but also those powers or competences as implied in the object and purpose, as well
as the practice of the organization. These powers are referred to as ‘implied
powers’. Legal personality is necessary for the performance of the tasks entrusted
to them and in the realization of the objectives of the UN.
Gabcikovo-Nagymaros
o Pacta sunt servanda-principle
o Example material breach termination treaty
o Example many legal disputes arise out of interpretation,
application and termination
o Necessity and force majeur with State Responsibility (week 2)
Pacta sunt servanda: The fact that both Hungary and Czechoslovakia failed to
comply with their treaty obligations does not mean that the treaty has ended nor
justifies its termination. Pacta sunt servanda in this case requires that the
parties find an agreed solution within the co-operative context of the treaty.
Material breach: ‘In the Court’s view, the prevalent political conditions were thus
not closely linked to the object and purpose of the Treaty that they constituted an
essential basis of the consent of the parties, and, in changing, radically altered the
extent of the obligations still to be performed. The Court does not consider that new
developments in the state of environmental knowledge and of environmental law
can be said to have been completely unforeseen.’, para. 104. The Court ruled that
only a material breach of the treaty itself by a state party to that treaty, entitles
the other party to rely on it as a ground for terminating the treaty. Violation of
other treaty rules do not constitute a ground for termination, but may justify
other measures, like countermeasures.
Necessity and force majeur: Necessity is a valid ground recognized by
customary international law and can only be accepted on exceptional basis and
when particular conditions are met:
, It must have been occasioned by an essential interest of the state which is
the author of the act conflicting with one of its international obligations
That interest must have been threatened by a grave and imminent peril
(ernstig en dreigend gevaar)
o Could in this case not be proved. There was only a possibility of
peril and that’s not enough to invoke necessity.
The act being challenged must have been the only means of safeguarding
that interest
That act must not have seriously impaired an essential interest of the
state towards which the obligation existed
The state which is the author of that act must not have contributed to the
occurrence of the state of necessity.
Rainbow Warrior
o Force majeur and distress (week 2)
o Example lawful ground for material breach
Facts: Arbitration case between New Zealand and France. France agents let a ship
sink, they are prisoned for ten years in New Zealand. France wants release of the
agents. Because of a medical emergency, the agents were transported to France
without New Zealand’s consent. New Zealand argues that this is an internationally
wrongful act.
Question: Did the act of France fall under force majeure or distress?
Arbitration tribunal: Force majeur is only applied where circumstances
rendered compliance by a state with an international obligation impossible. Not
when it makes it more difficult or burdensome (belastend). A Stat4e cannot
invoke this if it has contributed to the situation. The act does not fall under force
majeur. Distress is a choice between departure from an international obligation
and a serious threat to the life or physical integrity of a state organ. Three
conditions were required for distress to be applicable:
- There must have been an exceptional medical or other circumstance of an
elementary nature of extreme urgency
- The original situation must have been re-established after the emergency
has ended
- There must have been a good faith attempt to acquire consent from in this
case New Zealand
Tyrer v. UK
o Additional type of interpretation: leaving instrument
interpretation
ECtHR: On the subject of interpretation, the court says that the ECHR is a living
instrument which must be interpreted in the light of present-day conditions. The
Court cannot help being influenced by the developments and commonly accepted
standards in the penal policy of member states of the Council of Europe in this field,
meaning the state practice. This can be seen as an example of the ECtHR’s use of
state practice as a means of interpretation of the Convention.
LaGrand-case
o Supremacy of international law over domestic law
Week 1: Law of Treaties, Sources and Introduction
Kadi and Al Barakaat v. Council and Commission
o Introduction to international law
Facts: The applicants argued that the EU-regulation violated Mr Kadi’s right to be
heard, his right to property and lacked effective judicial review.
Question: Were fundamental rights violated?
CJEU: Yes, some important fundamental rights were violated and the EU-measures
were invalid. This decision was quite controversial, because the Court decided on
the basis of EU-law, while the source of the measure was the Security Council. As a
result, the Ombudsman was created.
Reparation for Injuries
o Legal personality United Nations
Question: Do the United Nations have legal personality?
ICJ: The UN do not only have the explicit powers as expressed in the UN Charter,
but also those powers or competences as implied in the object and purpose, as well
as the practice of the organization. These powers are referred to as ‘implied
powers’. Legal personality is necessary for the performance of the tasks entrusted
to them and in the realization of the objectives of the UN.
Gabcikovo-Nagymaros
o Pacta sunt servanda-principle
o Example material breach termination treaty
o Example many legal disputes arise out of interpretation,
application and termination
o Necessity and force majeur with State Responsibility (week 2)
Pacta sunt servanda: The fact that both Hungary and Czechoslovakia failed to
comply with their treaty obligations does not mean that the treaty has ended nor
justifies its termination. Pacta sunt servanda in this case requires that the
parties find an agreed solution within the co-operative context of the treaty.
Material breach: ‘In the Court’s view, the prevalent political conditions were thus
not closely linked to the object and purpose of the Treaty that they constituted an
essential basis of the consent of the parties, and, in changing, radically altered the
extent of the obligations still to be performed. The Court does not consider that new
developments in the state of environmental knowledge and of environmental law
can be said to have been completely unforeseen.’, para. 104. The Court ruled that
only a material breach of the treaty itself by a state party to that treaty, entitles
the other party to rely on it as a ground for terminating the treaty. Violation of
other treaty rules do not constitute a ground for termination, but may justify
other measures, like countermeasures.
Necessity and force majeur: Necessity is a valid ground recognized by
customary international law and can only be accepted on exceptional basis and
when particular conditions are met:
, It must have been occasioned by an essential interest of the state which is
the author of the act conflicting with one of its international obligations
That interest must have been threatened by a grave and imminent peril
(ernstig en dreigend gevaar)
o Could in this case not be proved. There was only a possibility of
peril and that’s not enough to invoke necessity.
The act being challenged must have been the only means of safeguarding
that interest
That act must not have seriously impaired an essential interest of the
state towards which the obligation existed
The state which is the author of that act must not have contributed to the
occurrence of the state of necessity.
Rainbow Warrior
o Force majeur and distress (week 2)
o Example lawful ground for material breach
Facts: Arbitration case between New Zealand and France. France agents let a ship
sink, they are prisoned for ten years in New Zealand. France wants release of the
agents. Because of a medical emergency, the agents were transported to France
without New Zealand’s consent. New Zealand argues that this is an internationally
wrongful act.
Question: Did the act of France fall under force majeure or distress?
Arbitration tribunal: Force majeur is only applied where circumstances
rendered compliance by a state with an international obligation impossible. Not
when it makes it more difficult or burdensome (belastend). A Stat4e cannot
invoke this if it has contributed to the situation. The act does not fall under force
majeur. Distress is a choice between departure from an international obligation
and a serious threat to the life or physical integrity of a state organ. Three
conditions were required for distress to be applicable:
- There must have been an exceptional medical or other circumstance of an
elementary nature of extreme urgency
- The original situation must have been re-established after the emergency
has ended
- There must have been a good faith attempt to acquire consent from in this
case New Zealand
Tyrer v. UK
o Additional type of interpretation: leaving instrument
interpretation
ECtHR: On the subject of interpretation, the court says that the ECHR is a living
instrument which must be interpreted in the light of present-day conditions. The
Court cannot help being influenced by the developments and commonly accepted
standards in the penal policy of member states of the Council of Europe in this field,
meaning the state practice. This can be seen as an example of the ECtHR’s use of
state practice as a means of interpretation of the Convention.
LaGrand-case
o Supremacy of international law over domestic law
