International Law Louv5x Law – Course outline 1 International Law Louv5x Prof. Pierre d’Argent Course outline Note: This outline is intended to …

International Law – Course outline 1

International Law

Louv5x

Prof. Pierre d’Argent

Course outline

Note : This outline is intended to help students when revising their MOOC notes. Titles of

videos and sections are in bold italics.

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Week 1: Introducing International Law

International Law and Humanity – International Law around us – International Law

and its various names: public / private international law; Law of Nations; jus gentium /

droit des gens / Völkerrecht

A Foundational Moment – Peace of Westphalia (1648) – equal sovereignty of States –

horizontal legal order – Art. 2(1) UN Charter & Art. 2(7) UN Charter

From Westphalia to Versailles – US independence (1776) – Vienna Congress (1815) –

Berlin Congress (1885) – First World War (1914) – Versailles Treaty (1919) – League of

Nations – International Law as a promise of peace / as an instrument of domination.

Form Versailles onwards – Treaty of Paris (1928) – Second World War – UN Charter

(1945) – Cold War – decolonization (1960’s) & self-determination of peoples: changing

the face and concerns of the international community, but keeping the horizontal structure

based on equal sovereignty of States – end of Cold War & Iraq-Kuwait war (1990-91):

revival of the UN and decade of multilateralism – 9/11 (2001) and Iraq war (2003): return

to unilateralism – coexistence and cooperation as purposes of International Law.

International Law as a common language – argumentative practice of States –

International law as a professional language of justification.

Week 2: Setting the International Law Stage

Setting the Stage – States as founders and masters of International Law – States as only

subjects of IL – evolution of international legal personality: International organizations,

human rights, international criminal law.

Personality under International Law – distinction between actors of international

relations and subjects of international law – having rights and/or obligations under IL as

threshold of legal personality (broad definition of (passive) legal personality) – having the

capacity to make IL (narrow definition of (active) legal personality) – degrees of legal

personality – political dimension of the issue and social needs.


I. STATES

The elements of Statehood – centrality of States as subjects of international law – 1933

Montevideo Convention – customary law – territory; earth portion; territorial sovereignty

= exclusion (Island of Palmas case (NL v. USA), 1928) – population; nationality –

effective and independent government (incl. capacity to enter into international relations);

freedom of States on nature and form of government (domestic affairs) and treaty

limitations – constitutive elements or criteria for identification? – Existence of State as

factual process – social dimension.

State Recognition – problem – new States – single use – discretion – political conditions –

forms of recognition – explicit – implied – diplomatic relations – unilateral character –

concerted recognition – admission into the UN as collective recognition? (Palestine non-

member State status, 2012) – Legal effect or political act? – Declaratory character –

constitutive of a relationship – consolidating factual effectivity – decentralized system.

Obligation not to recognize (Part 1) – Stimson doctrine (Manchukuo, 1932) – ICJ, Legal

Consequences for States of the Continued Presence of South Africa in Namibia (South West

Africa) notwithstanding Security Council Resolution 276 (1970), advisory opinion, 21

June 1971, §119 (‘obligation to recognize illegality and invalidity’) – ICJ, Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

advisory opinion, 9 July 2004, §159 (‘obligation not to recognize the illegal situation’)

Obligation not to recognize (Part 2) – under customary IL in case of serious breaches of

peremptory norms: ARSIWA, Art. 41, §2, A/RES/56/83, 12 Dec. 2001 – imposed by

Security Council (Southern Rhodesia [Res. 216 & 217 (1965); TRNC, 1974 [Res. 541

(1983)]; Iraq-Kuwait [Res. 662 (1990)]; Republika Srpska [Res. 787 (1992)]

Is unilateral secession prohibited? – Examples – Art. 2(4) UN Charter and protection of

territorial sovereignty: duty between States – secession as a result of grave breaches and

obligation not to recognize – The Kosovo advisory opinion (ICJ, Accordance with

international law of the unilateral declaration of independence in respect of Kosovo,

advisory opinion, 22 July 2010, §§79)

When is unilateral secession a right? Prolegomena – freedom v. entitlement to become

independent – historical perspective – recognition and co-belligerency of Polish and

Czechoslovak ‘nations’ during WWI – Covenant of the League of Nations – Art. 22

Mandates – Mandates A, B, C – ‘sacred trust of civilization’

When is unilateral secession a right? Self-determination of peoples – UN Trusteeship

system (Art. 73 UN Charter) – Art. 1, §2, Art. 55 UN Charter: “self-determination of

peoples” – meaning in 1945 – evolution through decolonization – peoples under colonial

rule and alien subjugation – UNGA Res. 1514 (XV) 14 Dec. 1960 (Resolution 1514 (XV))

– external dimension of self-determination: right of peoples to become an independent

State – UNGA Res. 2625 (XXV) 24 Oct. 1970 – self-determination as ultimate goal of

“sacred trust of civilization” (Art. 22 League Covenant): ICJ, Legal Consequences for

States of the Continued Presence of South Africa in Namibia (South West Africa)

notwithstanding Security Council Resolution 276 (1970), advisory opinion, 21 June 1971,

§§52-53 – changing the face and concerns of international community – erga omnes


obligation: ICJ, East Timor (Portugal v. Australia), 30 June 1995, §29; ICJ, Legal


advisory opinion, 9 July 2004, §88, §156.

The various meanings of the right of peoples to self-determination – Art. 1(1) ICESCR

(1966) & ICCPR (1966) – internal self-determination – indigenous peoples – UN

Declaration on indigenous peoples (A/RES/61/295 (2007)) – minorities and domestic

subjugation – internal v. external self-determination – ‘right’ to become a State outside

decolonization? remedial secession?: Supreme Court of Canada, Reference re Secession of

Quebec, [1998] 2 S.C.R. 217; silence of ICJ, Accordance with international law of the

unilateral declaration of independence in respect of Kosovo, advisory opinion, 22 July

2010, §§80-84 – German reunification: Treaty on the Final Settlement with respect to

Germany (Moscow, 1990).

State continuity and State succession – examples – concepts – interruption (secession) or

not (continuity) of legal personality.

New States and borders – automatic succession of States to border treaties – examples –

uti possidetis juris – history – notion – as a rule, even absent an agreement, and outside

colonial context: ICJ, Frontier Dispute (Burkina Faso/Republic of Mali), 22 Dec. 1986,

§20; Arbitration Commission of the Conference on Yugoslavia (‘Badinter’ Commission)

Opinion n°3, 11 Jan. 1992 – which internal line?

II. INTERNATIONAL ORGANIZATIONS

The concept of International Organization – historical perspective – role in global

governance – association – members – act (often treaty) establishing IO – IO v. NGO –

functionalism – examples – permanent organs – institutionalism / IO as bureaucracies &

role of law – ILC’s Draft Articles on the Responsibility of International Organizations (art.

2)

Legal personality – issue of legal personality distinct from member – absence of distinct

legal personality: IO as common organ – separate legal personality: explicit or implied –

silence of basic treaty: ICJ, Reparation for Injuries Suffered in the Service of the United

Nations, advisory opinion, 11 April 1949 – objective approach of legal personality – legal

capacity under domestic law (e.g. Art. 335 TFUE).

Two governing principles (Part 1 & Part 2) – speciality (conferral) & implied powers:

ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, §

25).

The United Nations – specificity of purposes (art. 1 UN Charter) and scope – legal

supremacy (art. 103 UN Charter) – 6 main organs: GA, SC, ECOSOC, TC, ICJ, SG – UN

specialized agencies: “the UN system” – The foundation of the UN – The International

Court of Justice.


Week 3: Making International Law I

I. CUSTOM

The formal sources of International Law – material v. formal sources – processes for the

creation of international obligations – sources and subjects – creation of norms and

specificity of IL (Kelsen) – political dimension – functions of law: limiting and enabling

power – The adequacy of the word “sources” – UN Charter, preamble – The problem of

law-making in the international community – difference with domestic law – horizontal,

decentralized and non-hierarchical character of IL – The Wimbledon case (PCIJ,

Wimbledon (17 August 1923, Series A, n°1, p. 25): law and sovereignty; consensual

foundation of international law – The Lotus case (PCIJ, Lotus (7 Sept. 1927, Series A,

n°10, p. 19): International law as a permissive system – Lotus overturned? : The Arrest

Warrant case (ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo

v. Belgium), 14 Feb. 2002, §61); The Kosovo Advisory Opinion (ICJ, Accordance with


advisory opinion, 22 July 2010, §56).

Introduction to Article 38 of the ICJ Statute – the drafting history of Art. 38 of the PCIJ

Statute in 1920 – Article 38 of the ICJ Statute – absence of hierarchy – logical order of

application – incomplete – Article 38 again: ‘the teachings of the most highly qualified

publicists of the various nations’ – Art. 38, §2: ex aequo et bono.

The notion of customary International law – Art. 38, par. 1, (b) – custom as ‘general

international law’ – how to find custom? – theory of two elements – North Sea Continental

Shelf cases (ICJ, North Sea Continental Shelf cases, FRG/Denmark; FRG/Netherlands, 20

Feb. 1969, §§74-77) – Germany v. Italy (ICJ, Jurisdictional Immunities of the State

(Germany v. Italy: Greece intervening), 3 Feb. 2012, §55) – Summing up the “two

elements theory” – objective element: general practice – practice: actions, omissions,

elements of practice – generality of practice – over time – over space – regularity,

consistency – practice of States – States whose interests are specially affected – subjective

element: opinio juris sive necessitatis – accepted as law: ICJ, North Sea Continental Shelf

cases, §77 – meaning.

The interplay between contrary practice and opinion juris – from apology to utopia

(Koskenniemi) – Inconsistent practice and the survival of customary rules: ICJ, Military

and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), 27 June 1986, §186 – Persistent objector, new States, regional custom and the

foundation of custom – persistent objector: two situations – ICJ, Anglo-Norwegian

fisheries (1951): consent-based conception of custom – new States and existing custom:

limit to consent-based conception – regional or local customs: ICJ Asylum case (Columbia

v. Peru, 1950) – standard of proof required – paradox.

Where and how to find custom? – Reports of practice – codification and progressive

development: Institut de droit international (1873) – International Law Commission.


Week 4: Making International Law II

II. TREATIES

The notion of treaty – notion – variety of treaties – the treaty about treaties: VCLT 23 May

1969 – customary status – VCLTIO 21 March 1986 – definition of treaty and scope of

application of VCLT: Art. 2, §1, (a) – designation – one or several instruments – treaty v.

gentlemen’s agreement – treaty as a legal act governed by international law – pacta sunt

servanda – Art. 26 VCLT.

Treaty negotiations – informal character of IL – State’s representatives – full powers: art.

2(1) c) VCLT – Art. 7 VCLT – presumptions Art. 7, §2 VCLT – substantive provision

relating to the extent of the person’s powers when exercising representative function: ICJ,

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea intervening), 10 Oct. 2002, §265 – Signature, ratification and entry

into force – signature – legal effect – Art. 10 VCLT (authentication) – Art. 12 VCLT

(consent to be bound) – ratification – Art. 2, §1, (b), Art. 11, 14 VCLT – Art. 24, §4 VCLT

(final clauses) – Art. 18 VCLT (not to defeat object and purpose) – interim obligation –

depositary: art. 77 VCLT – The ICC Statute (exercise) – Registration and publication –

purpose – Wilson’s fourteen points and secret treaties – Art. 18 Covenant of the League of

Nations (binding force) – Art. 102 UN Charter (invoked before UN organ) – UN Treaty

Series

Reservations: notion – purpose – Art. 2, §1, (d) VCLT – unilateral statement – to exclude

or to modify – specificity – timing – Reservations: permissibility – conditions: Art. 19

VCLT – ICJ, Reservations to the Convention on the Prevention and Punishment of the

Crime of Genocide, advisory opinion, 28 May 1951 – reservations incompatible with object

and purpose – invalidity of reservation or of consent?: ECtHR, Belilos v. Switzerland, 29

April 1988 – Reservations: legal effects – intrinsic, reciprocal, relative (Art. 21 VCLT) –

example – Reservations: acceptance and objection – acceptance (Art. 20) – silence (Art.

20, §5 VCLT) – objection to the entry into force of the treaty (Art. 20, §4, (b)) – objection

(Art. 21, §3): which legal effect? – Withdrawal of reservations (Art. 22) – Reservations

and objections in practice: Pakistan and the CAT

The validity of treaties: introduction – notion – limited grounds – Art. 42, §1, VCLT –

reasons – capacity – States (Art. 6 VCLT) – international organisations (Art. 6 VCLTIO)

& implied powers (ECJ, ERTA case (1971).

Defect of consent (competence) – notion – Art. 27 VCLT – Art. 46 VCLT – conditions –

ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea intervening), 10 Oct. 2002, §265: manifest violation & rule properly

publicized.

Defect of consent (genuine and informed consent) – error (Art. 48 VCLT) – fraud (Art.

49 VCLT) – corruption (Art. 50 VCLT) – coercion of representative (Art. 51 VCLT) –

coercion on the State (Art. 52 VCLT) – notion of ‘force’ – armed force – economic force

– Final Act Vienna Conference – legality of the threat or use of armed force – peace treaties.


Jus cogens – object of treaty – notion – Art. 53 VCLT & 64 VCLT – jus cogens v. jus

dispositivum – peremptory norms and ordre public – international jurisprudence – nature

of jus cogens: part of customary IL with specific opinion juris (ICJ, Questions relating to

the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, §99) –

inequality of rights and obligations: no ground for invalidity.

Final note on the invalidity of treaties – loss of right to invoke ground for invalidating

(Art. 45) – separability of provisions (Art. 44) – retroactivity (but Art. 69 & 71) – procedure

(Art. 65 & 66).

III. GENERAL PRINCIPLES

General principles according to Article 38 of the ICJ Statute – Art. 38, par. 1, (c) – origin

– non liquet – subsidiary character – common principles of domestic law and consent –

‘civilized nations’ – ‘General principle of international law’ – synonym for custom –

General principles in ICJ cases (see cases quoted).

IV. UNILATERAL ACTS OF STATES

Unilateral acts of States – classical approach – ICJ, Nuclear Tests (Australia v. France),

20 Dec. 1974, §§46-51 – intent to be bound – principle of good faith; trust and confidence

– Timor-Leste and Australia at the ICJ (ICJ, Questions relating to the seizure and

detention of certain documents and data (Timor-Leste v. Australia), Provisional measures,

3 March 2014, §44).

V. UNILATERAL ACTS OF INTERNATIONAL ORGANIZATIONS

Unilateral acts of international organizations – acts adopted according to the basic

instrument establishing the organization – consent to basic instrument and legal effects on

Member States according to basic instrument – conformity with basic instrument and

validity – normative chain and legal nature – Kosovo ICJ’s advisory opinion (ICJ,

Accordance with international law of the unilateral declaration of independence in respect

of Kosovo, advisory opinion, 22 July 2010, §88 [with respect to the Constitutional

Framework as UNIMIK Regulation]).

UN General Assembly resolution and customary law – functions and powers of the GA

(Art. 10 UN Charter) – administrative resolutions having binding effect within the UN –

specific and general resolutions – resolutions as support of customary rules – declaratory

character – constitutive character – conditions (object, words, political support) – examples

(Res. 2625 (XXV) / Res. 1514 (XV) – Last year’s General Assembly resolutions

VI. SOFT LAW

Soft law – notion – problems – standards – presumption of binding force (?) – binding

force through treaty provision – Reading: ICJ, Pulp Mills on the River Uruguay

(Argentina v. Uruguay), 20 April 2010, §§220-225.


Week 5: Applying International Law

Applying International law – notion and problems – sources as grounds for (similar)

obligations – conflict of obligations – binding force and personal scope of custom as

general international law – dispositive and residual character – conventional derogation

from customary rules – jus cogens and peremptory customary rules – binding force and

personal scope of general principles – of unilateral acts (of States or IO).

The binding character of treaties – generalities – pacta sunt servanda (Art. 26 VCLT) –

provisional application (Art. 25 VCLT) – Art. 27 & 46 VCLT – temporal scope (Art. 28

VCLT) – territorial scope (Art. 29 VCLT) – personal scope: relative effect of treaties (Art.

34 VCLT) – imposing an obligation on third State (Art. 35) – conferring a right on third

State (Art. 36) – example (Suez canal Convention Constantinople (1888)) – treaty

reflecting customary rules (Art. 38) – separate existence of treaty and custom.

Most-Favoured-Nation (MFN) – WTO (GATT, GATS & TRIPS) – notion.

Termination, withdrawal and suspension of treaties – limited grounds (Art. 42, §2,

VCLT) – notion (Art. 72) – Art. 54-64 VCLT

Inadiplenti non est adimplendum – Art. 60 – Conditions – material breach

EU conditionality (Cotonou Parternship Agreement)

Rebus sic stantibus – Art. 62 – Conditions – ICJ, Gabčíkovo-Nagymaros Project

(Hungary/Slovakia), 25 Sept. 1997, §104.

Interpreting international law – notion – political dimension – interpretation as social

practice – constructive ambiguities – aims of interpretation – textual – historical –

teleological – Art. 31 & 32 VCLT – customary nature (e.g. ICJ, Kasikili/Sedudu Island

(Botswana/Namibia)(1999))

Articles 31-33 of the Vienna Convention – reasons for Art. 31, §1 – effet utile (ICJ,

Territorial dispute (Libya / Tchad), 3 February 1994, §51) – subsequent practice (e.g. Art.

27 UN Charter and ICJ, Legal Consequences for States of the Continued Presence of South

Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276

(1970), advisory opinion, 21 June 1971 §22 – Art. 31, §3, (c) VCLT – systemic integration

– Art. 32 travaux préparatoires as supplementary means – no principle of restrictive

interpretation.

Treaty interpretation, including of generic terms – ICJ, Dispute regarding Navigational

and Related Rights (Costa Rica v. Nicaragua), 13 July 2009, §§45-71.

Interpretation and systemic integration – Art. 31, §3, c) – ICJ, Oil Platforms (Islamic

Republic of Iran v. United States of America), 6 Nov. 2003, §§39-42; PCA, Iron Rhine

Arbitration (Belgium v. Netherlands), 24 May 2005, §58 and “updating” treaties.


Conflicting obligations (I) – avoiding conflict by systemic interpretation – fake situations

of conflict: void treaty (Art. 53 jus cogens); terminated treaty by conclusion of new

incompatible treaty (Art. 59) – resolving conflict by legal supremacy: Art. 103 UN Charter

– resolving conflict by expressing preference (Art. 30, §2 VCLT; e.g. Art. 351 TFUE) –

resolving conflict by commitment not to conclude conflicting treaty (e.g. Art. 8 NATO).

Conflicting obligations (II) – Art. 30, §3 VCLT: lex posterior derogate priori – quid if not

same parties? – Art. 30, §4 (b) VCLT – Art. 30, §5 VCLT – political choice.

Performing international obligations – obligation of result (by action or abstention) –

obligation of conduct – due diligence – obligation to prevent – obligation to respect, protect

and fulfil human rights.

What is required to perform international obligations? – ICJ, Application of the

Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Serbia and Montenegro), 26 Feb. 2007, §§425-450.

Relationship between international law and domestic law (I) – from the point of view of

IL: domestic law as fact (Art. 27 VCLT; PCIJ, Certain German interests in Polish Upper

Silesia (1926)) – breach of IL by domestic law and international responsibility – taking

domestic law into consideration.

Relationship between international law and domestic law (II) – from the point of view of

domestic law: IL as law – monism – dualism – choice

Direct effect of treaties – reception of treaties in domestic law: domestic law issue – direct

effect of treaty provisions (self-executing, i.e. no need of domestic implementing act):

international law issue – PCIJ, Jurisdiction of the Courts of Danzig (1928).


Week 6: Claiming Responsibility

I. NOTION

The notion of international responsibility – responsibility – notion – secondary rules when

breach of primary rules – International Law Commission – ARSIWA; A/RES/56/83 (2001)

– substantive (reparation) and instrumental consequences (counter-measures) –

responsibility for internationally wrongful act (Art. 1 ARSIWA) – notion of internationally

wrongful act – objective and subjective elements (Art. 2) – characterization under domestic

law (Art. 3) – ARIO A/RES/66/100 (2011).

II. INTERNATIONALLY WRONGFUL ACT

The objective element of the internationally wrongful act: the breach on an international

obligation – Art. 12 – Art. 13 (contemporaneity principle; Island of Palmas (NL v. USA)

(1928) – Art. 14 (instantaneous v. continuing character of breach) – Art. 14, §3 (obligation

to prevent) – Art. 15 (composite act).

Circumstances precluding wrongfulness: breach without responsibility – notion – limits:

peremptory norms (Art. 26); compensation (Art. 27) – consent (Art. 20) – self-defence

(Art. 21) – countermeasures (Art. 22) – force majeure (Art. 23) – distress (Art. 24) –

necessity (Art. 25) – ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept.

1997, §51 – Torrey Canyon incident (1967).

Responsibility without breach, accountability and collective responsibility – liability

(non-fault regimes) – accountability – legal personality and responsibility – responsibility

of States and collective responsibility.

III. ATTRIBUTION

The subjective element of the internationally wrongful act: attribution – notion – failure

to act – attribution of actual conducts – all State organs acting in such capacity (v. private

acts) (Art. 4) – governmental authority (Art. 5) – lending organs to foreign State (Art. 6) –

ultra vires (Art. 7) – private acts of organs and officials – member of armed forces (Art. 3

Hague Rules (1907) & Art. 91 Geneva Protocol I (1977)).

Attribution of private acts (1) – private act reveals wrongful omission – absence or default

of official authorities (Art. 9) – insurrectional movement (Art. 10) – conduct acknowledged

or adopted (Art. 11): ICJ, United States Diplomatic and Consular Staff in Tehran (United

States of America v. Iran), 24 May 1980.

Attribution of private acts (2) – instructions (Art. 8) – conduct directed or controlled (Art.

8) – ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America), 27 June 1986, §115 (effective control) v. ICTY, Tadič, IT-94-

1-A, 15 July 1999, §145 (overall control) – “fragmentation” debate – Effective control

upheld: ICJ, Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 Feb. 2007, §§396-

407.


Responsibility of a State in connection with the act of another State – aid or assistance

(Art. 16) – direction and control (Art. 17) – Coercion (Art. 18)

Attribution to International Organizations – issue of the responsibility of members for

the conduct of the organization – distinct legal personality – ARIO; A/RES/66/100 (2011)

– legal status – State organs or agents placed at the disposal of the organization – peace-

keeping – State organs ‘fully seconded’ v. placed at disposal of the organization –Art. 7

ARIO (put at disposal + IO exercises effective control v. ECtHR, Behrami v. France;

Saramati v. France, 2 May 2007 (ultimate control)).

IV. NEW OBLIGATIONS

The new obligations arising from international responsibility: cessation – duty of

performance (Art. 29) – cessation (Art. 30(a)) if continuing wrongful act: ICJ, Legal


advisory opinion, 9 July 2004, §151 – assurances and guarantees of non-repetition (Art.

30(b)).

The new obligations arising from international responsibility: reparation – Art. 31, §1 –

injury (Art. 31, §2) as a legal construct – intrinsically (interests of States protected under

international law) – moral and material damage (Art. 31) – damnum emergens, lucrum

cessans – extrinsically – causality (Art. 31) – proximate cause – reparation – notion – PCIJ,

Factory at Chorzów (Germany v. Poland), 13 Sept. 1928, Series A, n°17, p. 47

The forms of reparation – Art. 34 – restitution (Art. 35) – compensation (Art. 36) –

contribution to injury (Art. 39) assessing damage and equitable considerations for non-

material damages (ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo), 19 June 2012); – punitive damages – currency – interests (Art. 38)

– satisfaction (Art. 37) – repealing domestic acts – ICJ, Arrest Warrant of 11 April 2000

(Democratic Republic of the Congo v. Belgium), 14 Feb. 2002, §76; comp. with cessation

when ongoing breach: ICJ, Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, advisory opinion, 9 July 2004, §163.

The right of individuals to reparation – Art. 33 (2) – ICJ, Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory, advisory opinion, 9 July

2004, §152-153 – Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law and Serious

Violations of International Humanitarian Law (A/RES/60/147 (2006)).

Serious breaches of obligations under jus cogens norms – “crimes of States” (ILC draft

1979) – problems – serious breaches of obligations under peremptory norms of general

international law – Art. 40-41 ARSIWA.


V. INVOKING RESPONSIBILITY

Responsibility invoked by the injured State – notion of ‘injured State’: Art. 42 – bilateral

obligations – collective obligations (erga omnes obligations – ICJ, Barcelona Traction,

Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), 5 Feb.

1970, §§33-34) – specially affected – interdependent obligations.

How to invoke responsibility? – notice (Art. 43) – admissibility of claims (Art. 44:

nationality + exhaustion of local remedies) – diplomatic protection: PCIJ, Mavrommatis

Palestine concession (Greece c. United Kingdom), 30 August 1924, series A, n°2, p. 12 –

right of the State – ILC draft on diplomatic protection (A/RES/62/67, 6 Dec. 2007) –

residual use of diplomatic protection – human rights courts – investment arbitration – Loss

of right to invoke responsibility (Art. 45) – Plurality of injured States (Art. 46) – Plurality

of responsible States (Art. 47: the same wrongful act).

Responsibility invoked by a State other than the injured State – Art. 48 ARSIWA –

obligations erga omnes partes – obligations erga omnes – ICJ, Barcelona Traction, Light

and Power Company, Limited (Belgium v. Spain) (New Application: 1962), 5 Feb. 1970,

§§33-34 – Obligations erga omnes (partes) – jus cogens norms and erga omnes obligations

– IDI, Krakow resolution (2005) – consequences – ICJ, Questions relating to the

Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, §§68-69 – erga

omnes and jurisdiction: ICJ, East Timor (Portugal v. Australia), 30 June 1995, §29.

VI. COUNTERMEASURES

The notion of countermeasures – retorsions v. countermeasures – decentralized

enforcement measures – intrinsically illegal – circumstance precluding wrongfulness – Art.

22 ARSIWA – target: author of the internationally wrongful act: ICJ, Gabčíkovo-

Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, §83 – purpose (Art. 49, §1) –

temporary character (Art. 53) – non-performance of obligations (Art. 49, §§2-3).

Limits to the exercise of countermeasures – Art. 50: obligations not affected – integral

obligations – prohibition of forcible countermeasures (Res. 2625 (XXV), ICJ, Military and

Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

27 June 1986, §127) – diplomatic obligations and self-contained’ regimes – ICJ, United

States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 24 May

1980, §86 – prohibition of exceptio and countermeasures between EU member States: ECJ,

cases 90 & 91/63, Commission v. Belgium and Luxemburg, 13 Nov. 1964 – exercising

countermeasures – necessity: request and notification (Art. 52) – proportionality (Art. 51,

comp. ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 25 Sept. 1997, §85.

Countermeasures by other States than the injured State? – practice – problem – ILC draft

1996: universal countermeasures in case of ‘crime’ – Art. 54 – debate.


Week 7: Seeking Justice

I. GENERALITIES

Seeking justice – at the national level, at the international level.

Settling disputes – concept of dispute: PCIJ, Mavrommatis Palestine Concessions (Greece

v. United Kingdom), 30 August 1924 (jurisdiction), p. 11

The obligation to settle disputes peacefully – prohibition on the use force (cfr. infra) and

obligation to settle disputes peacefully – Art. 2, §§ 3 & 4 UN Charter – Art. 33 UN Charter

– Res. 2625 (XXV) – customary nature : ICJ, Nicaragua v. USA – choice of means – nature

of the dispute – nature of the means – political v. judicial means of settlement – consent –

third party intervention – application v. creation of rules.

Political means of settlement – Art. 33 UN Charter – Res. 22625 (XXV) – Hague

conventions (1899 & 1907) – negotiations – enquiry – good offices – mediation –

conciliation – enquiry – regional agencies or arrangements.

Judicial means of settlement and the interplay between judicial and political means –

judicial means as alternative: PCIJ, Free Zones of Upper Savoy and the District of Gex

(France/ Switzerland), Order of 19 August 1929, p. 13 – interplay – absence of ‘system’ of

international courts.

II. ARBITRATION

Arbitration: generalities and consent – historical perspective: Jay treaty (1794), Alabama

arbitration (Washington treaty, 1871) – Hague Conventions (1899 & 1907) – definition –

Permanent Court of Arbitration – consent: special agreement, compromissory clause –

conditions of consent and jurisdiction – Examples of compromissory clauses.

Arbitration: institutional and procedure aspects – arbitral tribunal – choice of arbitrators,

of procedure – bifurcation – compétence de la compétence – award – legal effect –

annulment – advantages of arbitration – Some arbitral settings: PCA, Iran-US Claims

Tribunal, International Centre for Settlement of Investment Disputes (ICSID - Washington

convention, 1965).

III. INTERNATIONAL COURT OF JUSTICE

The International Court of Justice as an institution – principal judicial organ of the UN

(Art. 92 Charter) – universal and general character of ICJ – from the PCIJ to the ICJ

(continuity: Charter and Statute) – composition (Art. 2-4 Statute, Art. 13) – election (Art.

4-12 Statute) – term – administration (registrar) and seat – chambers (Art. 26 Statute) –

judge ad hoc (Art. 31) – Rules, Practice directions, Resolution on international judicial

practice – official languages.


The ICJ advisory jurisdiction – Art. 96 Charter & Art. 65 Statute – legal question –

jurisdiction – request by General Assembly or Security Council – request by authorized

other UN organs and specialized agencies – scope of activities – ICJ, Legality of the Use

by a State of Nuclear Weapons in Armed Conflict (WHO request), advisory opinion 8 July

1996 – Art. 12 UN Charter: request for opinion is not recommendation: ICJ, Accordance

with international law of the unilateral declaration of independence in respect of Kosovo,

advisory opinion, 22 July 2010, §24 – discretion: ‘compelling reasons’ to decline exercise

of jurisdiction – ICJ, Accordance with international law of the unilateral declaration of

independence in respect of Kosovo, advisory opinion, 22 July 2010, §§29-30 – legal

authority – follow-up at GA (UNRoD)

ICJ jurisdiction: access to the Court – locus standi, jurisdiction ratione personae – Art.

93 UN Charter, Art. 34-35 Statute – ICJ, Application of the Convention on the Prevention

and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and

Montenegro), 26 Feb. 2007, §§80-141

ICJ Jurisdiction: special agreement and forum prorogatum – jurisdiction ratione

materiae – based on consent – fundamental requirement, even in case of breach jus cogens:

ICJ, Armed Activities on the Territory of the Congo (New Application : 2002) (Democratic

Republic of the Congo v. Rwanda), 3 Feb. 2006, §64 – special agreement: Art. 36, §1

Statute – notion – after dispute has arisen – problems: existence, interpretation, limits

(deciding on actual dispute: ICJ, Frontier Dispute (Burkina Faso/Niger), 16 Avril 2013) –

forum prorogatum: Art. 38, §5 Rules – notion – after dispute has arisen.

ICJ Jurisdiction: compromissory clause – Art. 36, §1 in fine – ‘provided for in the

Charter’: ICJ, Aerial Incident of 10 August 1999 (Pakistan v. India), 21 June 2000, ICJ

Reports, §48 – notion – prior to dispute – subject-matter of the dispute and consent –

reservations to compromissory clauses – multilateral treaty for disputes settlement:

American Treaty on Pacific Settlement (Pact of Bogotá, 1948), European Convention for

the Peaceful Settlement of Disputes (1957) – prior negotiations and conditions of consent:

ICJ, Application of the International Convention on the Elimination of all Forms of Racial

Discrimination (Georgia v. Russian Federation), Preliminary Objections, 1 April 2011,

§§130-134.

ICJ Jurisdiction: optional clause I – Art. 36, §§2, 4, 5 Statute – notion – unilateral

declaration – jurisdictional link – conditions – reciprocity – reservations and exclusions –

‘the same obligation’: lowest common denominator.

ICJ Jurisdiction: optional clause II – Art. 36, §3 Statute – automatic reservation – ICJ,

Certain Norwegian Loans (France v. Norway), 6 July 1957 (opinion H. Lauterpacht) –

interpretation of optional clauses: unilateral acts and VCLT analogously (ICJ, Fisheries

Jurisdiction (Spain v. Canada), 4 Dec. 1998).

Acceptance of ICJ Jurisdiction in practice.

ICJ Proceedings – notification of special agreement or application – notifications –

publicity – procedural orders – written pleadings – oral pleadings – non-appearance of

respondent: Art. 53 Statute.


Provisional measures – Art. 41 Statute & Art. 73-78 Rules – purpose (preservation of

rights pending judgment on merits) – conditions (prima facie jurisdiction; link between

measures requested and rights to be protected; plausible character of rights; risk of

irreparable prejudice; urgency) – proprio mutu power –binding effect – ICJ, LaGrand

(Germany v. United States of America), 27 June 2001, §102.

Provisional measures in context – ICJ, Certain Activities Carried Out by Nicaragua in the

Border Area (Costa Rica v. Nicaragua), Order 8 March 2011, §§49-77.

Preliminary objections – Art. 79 Rules – fundamental procedural right – bifurcation –

compétence de la compétence (Art. 36, §6 Statute) – rejecting, upholding or joining

objection to the merits.

The Monetary Gold principle – indispensable third party & decline to exercise jurisdiction

– ICJ, Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of

Great Britain and Northern Ireland and United States of America), 15 June 1954, p. 32;

ICJ, East Timor (Portugal v. Australia), 30 June 1995, §29.

Other incidental proceedings – counter-claims – notion, conditions (Art. 80 Rules) –

intervention – Art. 63 Statute (intervention by New-Zealand in Whaling in the Antarctic

case) – Art. 62 Statute & Art. 81 Rules – as a non-party – as a party – conditions –

discontinuance (Art. 88-89 Rules).

Behind the scenes – how ICJ decisions are drafted; internal judicial practice – reflection.

The binding character of ICJ judgments – Art. 94 Charter & Art. 59 Statute –

implementation of judgments: examples – interpretation (Art. 60 Statute) – revision (Art.

61 Statute).

IV. INTERNATIONAL CRIMINAL COURT

Establishing the ICC – a long process – Versailles Treaty (1919) – ICTY (1993) – ICTR

(1994) -- Genocide convention (1948) – ILC draft code of crimes (1996) draft ICC statute

(1996) – Rome Statute (1998, 2002) – the ICC as an institution – seat – organs: presidency,

judicial divisions (pre-trial, trial and appeal divisions), office of prosecutor, registry –

office of public counsel for victims, office of public counsel for defence, trust fund,

detention centre.

ICC jurisdiction – ratione materiae: Art. 5 (genocide, crimes against humanity, war

crimes, crime of aggression (2017); elements of crimes (Art. 9) – ratione temporis: Art. 11

– ratione loci and ratione personae: Art. 12 (exception Art. 15bis, §5) – Art. 26 – Art. 27

– referring a situation by State party (Art. 14) or prosecutions proprio motu (Art. 15) –

UNSC referral of a situation (Art. 13(b)): Darfur (Res. 1593 (2005), Libya (Res. 1970

(2011) – complementarity (Art. 17 : ‘unable or unwilling’) – UNSC deferral of

investigation or prosecution (Art. 16): Res. 1422 (2002), Res. 1487 (2003).

ICC proceedings – To go further: ICC in context.


V. DOMESTIC COURTS

Turning to domestic courts – immunity – reasons.

State immunity from jurisdiction – custom – sovereignty – par in parem non habet

juridictionem – ICJ, Jurisdictional immunities of the State (Germany v. Italy: Greece

intervening), 3 Feb. 2012, §56 – domestic statutes on immunity – UN Convention on

Jurisdictional Immunities of States and their Property (2005) – European Convention on

State Immunity (1972) – from absolute jurisdictional immunity to restrictive immunity –

acta jure imperrii v. acta jure gestionis – criteria – UN Convention, Art. 2, §2 –

employment (Art. 11 UN Convention) – territorial tort exception (Art. 12 UN Convention);

but armed forces in armed conflict: ICJ, Jurisdictional immunities of the State (Germany

v. Italy: Greece intervening), 3 Feb. 2012, §§65-79 – waiving immunity: in limine litis;

counter-claim, Art. 6 UN Convention – effect of immunity – immunity and right to a judge

(Art. 6 ECHR; ECtHR,McElhinney v. Ireland, 21 Nov. 2001, paras. 33-40; ECtHR,

Fogarty v. UK, 21 Nov. 2001, paras. 32-39; immunity and breach of jus cogens norm:

ECtHR, Al Adsani v. UK, 21 Nov. 2001, 106; ICJ, Jurisdictional immunities of the State

(Germany v. Italy: Greece intervening), 3 Feb. 2012, §93.

Immunity from jurisdiction of International Organizations – IO not sovereign –

immunity established by treaty – distinction between nature of acts? – immunity and right

to judge (Art. 6 ECHR: ECtHR, Waite and Kennedy v. Germany and Beer and Regan v.

Germany, 18 Feb. 1999) – internal procedure – ECtHR, Stichting Mothers of Srebrenica,

11 June 2013.

Ratione personae immunity of foreign State officials – House of Lords, Pinochet case

(1999) – notion – private and public acts – temporary – total immunity ratione personae

acting heads of State, heads of Government, Foreign affairs ministers: ICJ, Arrest Warrant

of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 Feb. 2002 – diplomats

and special missions – more high-ranking officials? – setting aside immunity ratione

personae by ICC Statute (Art. 27; Art. 98).

Ratione materiae immunity of foreign State officials – notion – ‘official acts immunity’

– representatives of States acting is that capacity – right of State – ICJ, Certain Questions

of Mutual Assistance in Criminal Matters (Djibouti v. France) – grave crimes exception?


Week 8: Upholding Peace

I. PROHIBITION OF THE USE OF FORCE

International law and violence – war and peace – social order, law and violence –

international law as a promise of peace – equal sovereignty and unequal military

capabilities – outlawing war and making war legal.

From the just war theory to the Hague Convention (1907) – just and unjust wars –

constitutional aspects – jus ad bellum / jus in bello (IHL) – from freedom to prohibition –

1899 & 1907 Hague Peace conferences – war declaration – Drago-Porter Convention

(1907) – ‘state of war’ vs. ‘peace’.

Versailles (1919) and the Paris treaty (1928) – Art. 231 Versailles treaty – League of

Nations Covenant (Art. 11-16) – Treaty of Paris (Briand-Kellogg Pact, 1928): ‘outlawry of

war’ – quid pro quo

Article 2(4) of the UN Charter – Art. 2, §4 – Res. 2625 (XXV) -- ICJ, Accordance with


advisory opinion, 22 July 2010, §§191-193 – from contract to institution – normative status

– content – ‘threat or use of force’ (vs. ‘war’) – ‘international relations’ – ICJ, Accordance

with international law of the unilateral declaration of independence in respect of Kosovo,

advisory opinion, 22 July 2010, §80 – ‘against the territorial integrity or political

independence’ – ‘or in any other manner inconsistent with the Purposes of the UN’ –

equality of belligerent for jus in bello purposes – wrongfulness under jus ad bellum despite

conformity with jus in bello.

Article 2(4) of the UN Charter and consent to foreign intervention – use of force against

v. with consent – effectiveness of government – consent in civil wars – IDI, The Principle

of Non-Intervention in Civil Wars, Wiesbaden (1975) – ICJ, Military and Paramilitary

Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986,

§246 – military assistance short of non-international armed conflict – IDI, Military

assistance on request, (2011)

II. SELF-DEFENCE

Self-defence I – Art. 51 UN Charter – ‘exception’/’qualification’ to the prohibitive rule:

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United

States of America), 27 June 1986, §193, §210; ICJ, Oil Platforms (Islamic Republic of Iran

v. United States of America), 6 Nov. 2003, §43 – Art. 21 ASIWA – ‘inherent right’ –

customary status – ‘armed attack occurs’ (“agression armée”) – gravity threshold and

skirmishes – ‘most grave’: ICJ, Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States of America), 27 June 1986, §191 – aggressive

intent: ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), 6 Nov.

2003, §43 – aggression under GA Res. 3314 (XXIX) 14 Dec. 1974, Art. 3 presumptions –

(dis)qualification by Security Council.


Self-defence II – imminent attack– SG report ‘In larger freedom’ A/59/2005, §124 – IDI,

Self-defence, Santiago resolution (2007) – Caroline incident (1837) and Webster formula

– anticipatory self-defence vs. preemptive self-defence – rescue of nationals abroad?

Exercising self-defence – necessity and proportionality – ICJ, Legality of the Threat or

Use of Nuclear Weapons, advisory opinion, 8 July 1996, §41 – objective assessment – ICJ,

Oil Platforms (Islamic Republic of Iran v. United States of America), 6 Nov. 2003, §43,

§73 – necessity and legality of target under jus in bello (ibid., §51)– nuclear weapons –

ICJ, Legality of the Threat or Use of Nuclear Weapons, advisory opinion, 8 July 1996, §97

– immediate reaction – global proportionality – informing the Security Council – ICJ,

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States

of America), 27 June 1986, §200 – action by SC and end of self-defence.

Collective self-defence – Art. 51 UN Charter – notion – additional conditions – assessment

and request by the victim State – ICJ, Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States of America), 27 June 1986, §195, §199 – treaty

commitments – Art. 5 Washington Treaty (NATO, 1949); Art. 42, §7, TEU.

Self-defence and terrorism I – absence of global definition of terrorism – sectorial criminal

conventions – terrorism on State territory and consent to foreign military assistance –

terrorist attack from abroad – gravity threshold – attribution of attack to State and self-

defence against that State (Art. 8 ARSIWA; Art. 3, g) GA Res. 3314 (XXIX) ‘substantial

involvement’.

Self-defence and terrorism II – 9/11 and UNSC Res. 1368 & 1373 (2001) – ICJ, Legal


advisory opinion, 9 July 2004, §139 –IDI, Self-defence, Santiago resolution (2007) – where

to use force?

III. THE UN SECURITY COUNCIL

The UN Security Council I – functions (Art. 24 Charter) – composition (Art. 23) –

permanent members and elected members – vote, veto, abstention (Art. 27) – powers –

Chapters VI, VII, VIII – resolutions: decisions and recommendations.

The UN Security Council II – Chapter VII – Art. 48 – Art. 39 – ‘threat to the peace, breach

of the peace, act of aggression’ – evolution – SC declaration 31 Jan. 1992 – aggression –

GA Res. 3314 (XXIX) – Art. 2, §7 ‘internal affairs’ – legal or political assessment?

Sanctions and non-forcible measures under Chapter VII – Art. 41 – sanctions

committees – subsidiary organs (Art. 29) – ‘smart sanctions’ – targeted sanctions –

blacklisting – ICTY & ICTR as subsidiary organs – use of Chapter VII powers under the

ICC Statute (referral and deferral – cfr. Week 7) – Did you know? (examples)


Legal effects of Security Council resolutions I – Chapter VII, Art. 48 – Art. 25 – ICJ,

Legal Consequences for States of the Continued Presence of South Africa in Namibia

(South West Africa) notwithstanding Security Council Resolution 276 (1970), advisory

opinion, 21 June 1971, §§112-114 – legal effect for non-member States (Art. 2, §6) – legal

effect for individuals: direct effect? – Art. 103: primacy.

Legal effects of Security Council resolutions II – Art. 103 – ICJ, Questions of

Interpretation and Application of the 1971 Montreal Convention arising from the Aerial

Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Order of 14

April 1992, §42 – element of verticality in an horizontal legal order.

Interpretation of Security Council resolutions – ICJ, Accordance with international law

of the unilateral declaration of independence in respect of Kosovo, advisory opinion, 22

July 2010, §§94-100; 114-119

Limits to Security Council’s powers and judicial review – (i) reviewing SC

determinations? – ICTY, Tadič, IT-94-1-A, 2 Oct. 1995, para. 29 – (ii) reviewing SC

measures – grounds – Charter principles (Art. 2) – jus cogens – (iii) mechanism/authority

for reviewing?: ICJ, Legal Consequences for States of the Continued Presence of South

Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276

(1970), advisory opinion, 21 June 1971, §114 – ICJ, Questions of Interpretation and

Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie

(Libyan Arab Jamahiriya v. United States of America), Order of 14 April 1992, §43 –

ICTY, Tadič, IT-94-1-A, 2 Oct. 1995, §22 – CFI, T-306/01, Yusuf, 21 Sept. 2005, §§272

et s. ; ECJ, C-406/05 P et C-415/05 P, Kadi, 3 Sept. 2008, §§278-330.

IV. USE OF FORCE BY THE UN

The use of force by the UN: the Charter and the Korean War – original plan (Art. 43, 45-

47, Military Staff Committee) – Cold War – Korean War: Res. 83 & 84 (1950) –

‘recommendation’.

Peacekeeping – peacekeeping operations (PKO ‘blue helmets’) – practice – principles:

consent, impartiality, non-use of force (except self-defence and defence of mandate) – legal

basis – subsidiary organs (Art. 29) – budget – mandate – evolution: from neutrality to

protection to engagement – Res. 2098 (2013) MONUSCO & ‘intervention brigade’ –

authorization to use ‘all necessary means’ – blurring the distinction between peacekeeping

and peacemaking – Tribute: ‘A good man in Rwanda’.

Veto at the Security Council and the role of the UN General Assembly – Art. 24 and Art.

12 UN Charter – Uniting for peace Resolution (A/RES/377 (V), 3 Nov. 1950 – GA powers

– recommendations – peacekeeping – ICJ, Certain Expenses of the United Nations,

advisory opinion 20 July 1962.

Complex State-building and the Peacebuilding Commission – S/RES/1645 (2005) and

A/RES/60/180.

The use of force authorized by the UN – authorization to use ‘all necessary means’ –

multinational forces – Res. 678 (1990) chapter VII – legal basis (Art. 42) – practice


Mandates to use force – The Iraq war of 2003; the Libya war of 2011 – problems – Iraq:

Res. 678 (1990), 687 (1991), 1441 (2002): ‘restore (rétablir) / secure (préserver)’ – Libya:

Res. 1973 (2011) – IDI, Authorization of the use of force by the United Nations, Rhodes

(2011).

Failure of collective security – (i) prohibition of armed reprisals: Res. 2625 (XXV) – ICJ,

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States

of America), 27 June 1986, §127 – Art. 50, §1 a) ARSIWA – ICJ, Armed Activities on the

Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Dec. 2005, §148

– (ii) humanitarian intervention – In larger freedom A/RES/2005 – Kosovo (1999) –

responsibility to protect (R2P) – World Summit outcome (2005) A/RES/60/1 – legality and

morality (legitimacy).

Farewell.

_________________

International Law Louv5x Law – Course outline 1 International Law Louv5x Prof. Pierre d’Argent Course outline Note: This outline is intended to …

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