Extremely Detailed Public International Law Notes - 88D PDF

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Nature of International LawThe only essential conditions for the existence of law are the existence of a political community, and the recognition of the members of settled rules binding upon them in that capacity; international law seems on the whole to satisfy these conditions: Sir Frederick Polloc...

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Nature of International Law

1. Introduction

The only essential conditions for the existence of law are the existence of a political community, and the recognition of the members of settled rules binding upon them in that capacity; international law seems on the whole to satisfy these conditions: Sir Frederick Pollock The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all national concerned to honour their obligations under international law: Morgenthau To show that international law exists, with some degree of reality, the modern lawyer needs to show that the law is simultaneously normative and concrete -- that it binds a State regardless of that State's behaviour, will or interest but its content can nevertheless be verified by reference to actual State behaviour, will or interest: Koskennemi Distinguishes from national system where there are compulsory powers. In international is a loose system with custom as a basis. Development of International Law

1. Leading up to WWI • Treaty of Westphalia in 1648 2. WWI to WWII (1919 -- 1945) • League of Nations (1920) • Permanent Court of International Justice (PCIJ) – shaped the way the current world court looks like 3. Post WWII • Founding of UN and UN Charter (1942) 4. Cold War (1947 -- 1991) • Major global divide is between capitalism/democracy and communism • Comes to an end with the end of communism and fall of Berlin Wall 5. Optimistic 1990s • Blockages of cold war over and possible to get security council to take action • Ad hoc tribunals in Rwanda, Rome Statute of International Criminal Court 6. September 11, 2001 • Sharp polarization between North and South • Focus is on security/financial crisis 7. Problems • Corruption – affects system from how governments are determined, inflicting international institutions (ie oil for food program) • Trans-national crime Is International Law, law?

Critics • Skeptics have argued that there can be no international law since there is (1) International law depends on the consent of subjects for its existence. (2) There is no supreme legislature for the creation or amendment of international law. (3) There is no effective machinery for enforcement – there is no international police force, and there is no supreme court of international law which has compulsory jurisdiction. (4) The rules of international law are difficult to ascertain. (5) States do not comply with international law. • Not “real law” because it is commonly disregarded, states obeying it only when they wish to, or when it is in their interest to do so John Austin – denial of international law • Legal Positivism

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1. Introduction • Does not classify international law as law because law is equivalent to commands of the sovereign and it does not make sense that states could command them because states are sovereign H.L.A. Hart – The Concept of Law • Three categories of rules: (1) Primary rules, concerning human action and interaction; (2) Second rules (rules of adjudication, enforcement and change) which underpin and operate in relation to the primary rules, and (3) The master ‘rule of recognition’, which enables the observer to identify the components of the system and to treat them as legal. • It was the internal attitude, mainly those who are responsible for the application of the second rules, which marked the system as legal and not merely a set of social rules. • What mattered was not their acceptance of the primary rules but their acceptance of the system y which those rules were generated and applied ➡ It was the combination of primary and secondary rule which was the essence of law. • International law as a marginal form • Possessing some but not all the characteristics of a developed legal system and then only imperfectly. • It had only rudimentary institutions of adjudication, enforcement and change. • No courts of compulsory jurisdiction, no legislature, a frail internal attitude on the part of officials ✓ No other social rules are so close to municipal law as international law. Brownlie • Criticise Hart’s opinion • Whilst it may be said that international law lacks secondary rules, this matters less if one accepts the view that secondary rules do not play such a decisive role in maintaining the more basic forms of legality in municipal system. Binding: Why Do States Comply with International Law? Inherent order

Natural Law view • Law is derived by reason from the nature of man. International law is derived from the application of natural reason to the nature of the state-person. • Historically from religion and important in human rights area. • There are some rights, not because the government has agreed to them, but by virtue of being human. Positivism View – it is what states say it is States are only bound to international law to which they have consented • Critics of this theory ‣ Does not explain why the law is binding. States consent to be bound but does not explain why they consent to be bound. The answer that I have agreed is not sufficient. There has to be something above consent that make the answer. ‣ May argue that customary law still has implied consent. - Even for a new State, in practice, the customary international law is binding once a state becomes independently. ‣ Other scenarios, such as consent by threat of force. ‣ Consent also does not provide an explanation in the scenario where there is an auto-limitation to sovereignty: There are limits but they are self-imposed. Difference between Public International Law & Private International Law

Public International Law governs the relationship among States and also their relations with international organisations and individual persons. Private International Law (Conflict of Laws) is domestic law which deals with cases wherein foreign law intrudes into the domestic sphere. It concerns: • First, in which legal jurisdiction may a case be heard; and • Second, the law concerning which jurisdiction applies to the issues in a case. 2

2. Sources of International Law

Article 38(1) Statute of the International Court of Justice 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilised nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Article 38 of International Court of Justice Primary Sources • International Conventions (treaties) • Customary International Law • General Principles of International Law Secondary Sources (“evidence”) • Judicial Decisions – compromise between common law system and civil law systems (which are much more code based) • Teachings of most highly qualified publicists Formal Sources International Conventions (Treaties)

A treaty is defined an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.1 Customary International Law

Two elements: • General practice • Accept as law Custom consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris: North Sea Continental Shelf Cases Custom is a “constant and uniform usage, accepted as law”: Asylum Case

According to Judge Hudson: “elements which must be present before a PRINCIPLE OF INTERNATIONAL CUSTOM can be found to be established”: a. concordant practice by a number of States with reference to a type of situation falling within the domain of international relations b. continuation or repetition of the practice over a considerable period of time c. conception that the practice is required by or consistent with prevailing international law d. general acquiescence in the practice by other states.

State Practice Objective:The way in which states are conducting themselves officially on the international stage Elements • Duration of Practice ‣ There is no required length of time before a particular state practice may be considered custom. Provided that the principles of consistency and generality are proven, there is no necessity of passage of a long period of time. However, the passage of time can also be evidence of generality and uniformity. - Is there such a thing as instant custom? ✓ YES. According to the ICJ in the North Sea Continental Shelf Cases, an instant custom, involving a fairly quick maturing of practice, may emerge. • Although the passage of only a short period of time is not necessary, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely 1

For more information, see topic 6. 3

2. Sources of International Law conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked. • Consistency ‣ State practice must be continuous and repetitive. - Consistency was discussed in the Asylum Case. In this case, however, the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. - Repetition of practice or actions of states is necessary. A customary norm of international law arises in consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct. • Generality - Practice need not be exactly the same throughout States; it only needs to be substantial. - Even without the passage of any considerable period of time, a very widespread and representative participation in the Convention might suffice of itself, provided it included that of States whose interests were specially affected: North Sea Continental Shelf Cases - Universality is not required. As a matter of fact, according to the Asylum Case, there are instances when a regional custom, or a practice present and binding only to a particular region, may arise. List of forms that state practice may take --> non-exhaustive • treaties, • decision of international and national courts, • national legislation, • diplomatic correspondence, • opinions of national legal advisers, • practice of international organisations, • policy statements, • press releases, • official manuals on legal questions Opinio Juris Opinio Juris is the belief that a certain form of behaviour constitutes a legal obligation. • According to Brierly, it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. It means that a State abides by a practice because of a sense of legal obligation, as opposed to motives of courtesy, fairness, or morality. However, it should be noted that opinio juris cannot be in the strict sense considered a ‘ legal obligation’, it arises from mere belief. Consent issue Generally, States are bound only by that to which they consent. • It can be reflected in the principle of persistent objector ➡ when the state, from the very beginning, has expressly objected to the applicability of the said customary behaviour to its own State: Anglo-Norwegian Fisheries case • Exception is that some rules of customary international law are rules of ius cogens, or peremptory norms. • Examples include: genocide, racial discrimination, torture, etc. • Legal Consequences ➡ States cannot escape being bound by a customary rule that has the character of ius cogens. ➡ The principle of persistent objector also cannot be relied on. ➡ Voids treaties. Situation of New State--> different from persistent objector • What about when, in a region of States, there has already been a long-standing custom and there emerges a new State. Is the New State bound to comply with the existing customs? 4

2. Sources of International Law ➡ NO, it will not be bound by such custom. NOT because it was a persistent objector, because obviously it was a nonexistent State at the time the custom began. It is not bound by virtue of the fact that it did not consent to the custom and therefore such custom is not binding on the New State in any respect. For the purpose of the formation of rules of customary international law, consent is commonly indicated by State practice in the form of acquiescence. • However, acquiescence cannot be established unless a State has actual or constructive knowledge of the claim being made: Anglo-Norwegian Fisheries case Treaty v Customary International Law: Nicaragua (Merits) case Article 53, 1969 Vienna Convention on Treaties Treaties conflicting with a peremptory norm of general international law (“jus cogens”) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a “peremptory norm of general international law” is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

1. After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest on a criminal charge arising out of the rebellion of one of its leaders, a Peruvian national. 2. He was granted asylum by Colombia in its Peruvian Embassy in Lima. 3. Columbia sought, and Peru refused, a safe conduct to allow the leader out of the country. 4. Columbia brought this case against Peru. Issues: whether Columbia, as the state granting asylum, is competent to qualify the offence for the purposes of the said asylum?

Function of a treaty • Treaties can generally, but not always, serve as evidence of opinio juris. NOT a supervening relationship • There are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter “supervenes” the former, so that the customary international law has no further existence of its own. • Difference between treaty and customary international law Discharge of obligation: Nicaragua Case (Merits) • Termination or suspension of a treaty on the ground of violation by the other party of a “provision essential to the accomplishment of the object or purpose of the treaty” means exemption of the obligation of the other party. • But in the domain of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. Methods of interpretation and application • The organs competent to verity the implementation of the treaty and the customary international law are different. Accordingly, the interpretation and the application may vary. Does a treaty override custom? • It depends: ‣ If a treaty was entered into after a custom has been established, it can be said that the treaty will govern as regards the parties who entered into it. This is so because, the State parties’ ratification of that treaty is an expression of their consent to be bound by such, and the principle of pacta sunt servanda should be observed. ‣ If a treaty was entered into before a custom develops, the rules are not clear. It would seem that custom, being the latter intention, should prevail.This, however, would run counter to the very nature of a treaty. In the Continental Shelf case, the court attempted to reconcile treaties with custom. In practice, therefore, the solution to this situation would be to reconcile custom with treaty provisions. Asylum Case (Columbia v Peru) ICJ 1950 • No uniform practice and opinio juris in this case.Therefore, no customary norm. ➡ Principles of international law do not recognise any rule of unilateral and definitive qualification by the State granting diplomatic asylum. ➡ The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. The applicant must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question. • The Columbia Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the State in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law”. 5

2. Sources of International Law • According to the facts, no such custom was found. 1. This case concerned the delimitation of the continental shelf in the North Sea, which involved Denmark, the Netherlands, and Germany. 2. Denmark and the Netherlands both wanted to apply the equidistance principle according to art.6(2) of the 1958 Geneva Convention, while Germany opposed as this would disproportionately reduce its area, due to the concave German coastline. 3. Germany denied its obligation under the Convention because it had not been ratified and instead proposed “the doctrine of the just and equitable share”. The court rejected all the parties’ proposals.

North Sea Continental Shelf Cases Federal Republic of Germany v Denmark and The Netherlands (1969) ➡ A treaty provision may relate to custom in one of three ways • It may be declaratory of custom at the time that the provision is adopted; ‣ The provisions of the treaty are the codification of customary international law. ✓ Will be bounding non-treaty party as well. • It may crystallise custom, as States agree on the provision to be adopted during the treaty drafting process; or ‣ The treaty contributes to the development of the customary law. ✓ The treaty is the final and decisive step in making the customary law. • The provision may come to be accepted and followed by States as custom in their practice after the treaty’s adoption. ‣ The treaty develops the custom a little bit, but still no custom. In the present case, the ICJ mainly considered the third position in regards of a treaty: Provision should be norm-creating. • It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. • Article 6 raised doubt as to norm-creating • In the first place, Art. 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. • Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. • Finally, the faculty of making reservations to Art. 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially po...