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INTERNTIONAL LAWDixon Chapter 1 - International LawThe Role of International Law International law comprises a system of rules and principles that govern the international relations between foreign states and other institutional subjects of international law such as: o The UN o The Arab League o Th...

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INTERNTIONAL LAW Dixon Chapter 1 - International Law

The Role of International Law 

International law comprises a system of rules and principles that govern the international relations between foreign states and other institutional subjects of international law such as: o The UN o The Arab League o The African Union

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The rules of international law are primarily created by states, either for their own purposes or as a means of facilitating and controlling the activities of other actors on the international plane. A few of the uses are: o Regulating the rule of sea, outer space, and Antartica. o Regulating international telecommunications, postal service, and logistics. o International law is the primary tool to conduct international trade. o It is concerned with nationality extradition, use of armed force, human rights. o Also concerned with the environment, and the dignity of the individual.

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International law facilitates the function of the international community.

Existence of International Law as a system of Law What is the evidence that international law exists? 

Organizations, such as foreign offices and international organizations, and their members must accept that they are “legally bound” to behave in a certain way and will pursue claims against each other alleging a “breach” of international law.

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It is of outmost significance that states do not claim that they are above the law or that international law does not bind them.

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The overwhelmingly majority of international legal rules are consistently obeyed. However, some outliers of this are the US INVASION OF GRENADA (1983), and the genocide of the KURTS UNDER IRAQ.

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It is a function of all legal systems to resolve disputed questions of fact and law.

The Enforcement of International Law Some say international law is not true because it cannot truly be enforced. However, there are many ways in which the international community can try to enforce it, such as through: 

The Security Council o Under the statute of the UN, the security council may take ‘enforcement’ action against a state when it poses a threat to the peace, or has committed an act of aggression. Art. 39 – Chapter VII o Could vary from military actions, trade embargo, economic sanctions. o Has already encompassed many different struggles such as:  Iraqi aggression against Kuwait  Breakup of Yugoslavia  Civil wars of Somalia & Sudan

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Loss of legal rights and privilege o Another method of enforcing legal obligations is by doing this. Some examples of this are:  When the UK broke diplomatic relations with Argentina during the Falkland Crisis (1979).  When the US froze Iranian assets after the seizure of its embassy in Tehran in 2012.  Imposed limited penalties on Austria in 1999 for electing ‘extremists’.

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Judicial Enforcement o Ad hoc tribunals, the ICJ, ICC. o The ICJ has proven itself willing and able to rule on a legal question despite even strong political implications and despite parallel action having been taken by the council.

Why does international law work? 

The Common Good o Very important practical reason for the effectiveness of international law is based on common self-interest and necessity. It is needed in order to ensure a stable and orderly international society.

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The Psychological Rubicon o Psychological barrier against breaking the law simply because it is law.

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The Practitioners of International Law o They may have a habit of obedience derived from their own training as national layers that serves to encourage respect for international law.

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The Flexible nature of international law o Many of the rules have evolved from the practice of states and often these do not stipulate rigid obligations or confer overriding legal rights

 Political Cost – Loss of influence and loss of trust: may lead to bigger problems. Weaknesses of International Law 

Lack of Institutions o There is no formal legislative body o It doesn’t operate in such a systematic manner such as national legal systems

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Lack of Certainty o Sometimes it seems like disputes between states occur because the rule of international law governing their conduct is not clear.

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Vital Interests o Due to the fact that international law lacks a formal enforcement machinery, the temptation and opportunity to violate the law is greater than in other systems. o When a state believes that its vital interests are threatened, it is not certain that international law will be able to prevent illegal conduct. o Israeli violation of Argentinian sovereignty for Adolf Eichmann.

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Vital Rules o Each legal system contains rules that prohibit certain conduct. This puts the national system vs. the international system. o Examples of vital rules are rules on use of force.

The Juridical Basis of International Law 

The Command Theory o International law is not ‘positive’ law because it does not result from the commands of a sovereign. Customary law for example, develops through state practice and treaty laws through consent. This theory is largely discredited.

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The Consensual theory o Basic concept of this theory is that the binding quality of international law flows from the consent of states. ‘Positivistic’ system of law. o It stipulates that no international law can be created without the consent of the state which is to be bound. o It does not, however, explain the existence of all legal obligations. How are new states bound to the pre-existing laws?

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Natural Law o Almost the complete contrast to the consensual approach – it presupposes an ideal system of law founded on the nature of a man as a reasonable being. o Thus, laws derive from the dictates of nature as a matter of human reason. o Basis on moral principles.

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Ubi Societas, ibi jus

o It may be that the juridical origin of international law lies in practical necessity. o It states that law is a necessity for the society to function orderly and stably.

STATEHOOD & RECOGNITION Dixon Chapter 5 - Statehood and Recognition

Concept of Personality in International Law 

A subject of international law is a body or entity that is capable of possessing and exercising right and duties under international law.

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Personality may depend on some extra-legal concept, such as ‘effective existence’ or ‘political recognition’ rather than pre-determined criteria.

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Main capabilities of an international legal person are: o The ability to make claims before an international tribunal in order to vindicate rights given by international law. o To have the power to make valid international agreements binding by international law. o To be subject to some or all the obligations imposed by international law. o To enjoy some or all of the immunities from the jurisdiction of the national courts of other states, this being an attribute of an international legal person that is not available to the subject of each state’s national legal system

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There are two types of personalities in international law: o Original Personality: Belongs to states ipso facto once they satisfied the criteria of statehood. o Derived Personality: Flows from the recognition by states that other entities may have some competence in the field of international law.

The Subjects of International Law 

States o States are the most important and most powerful subjects of international law. o UN membership is not a synonymous of statehood. o 1933 Montevideo Convention  Permanent Population  Defined territory – definite physical existence that separates neighbors.  Government – effective, otherwise it is a “failed state”.  Capacity to enter into legal relations

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Other Territorial Entities o Treaty Creations  Territorial entities that have international personality, such as Danzig, Berlin, Vienna. o Territories Per Se International Organization o It is known that international organizations can perform a number of actions that affect international law. Some of the main players are the UN and the ICJ.

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Individuals o Nuremberg war trials and Tokyo War Trials

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Corporations o 1977 Texaco v. Libya – Concession agreement for the extraction of oil.

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Some Cases o North Sea Continental Shelf case o Aaland Islands case o Island of Palmas arbitration o Austro German Customs Union Case

Recognition in International Law 

Constitutive Theory o A state is, and becomes, an international person through recognition only. o Practical problem: political act, inconsistent.

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Declaratory Theory o The formation of a new State is a matter of fact, and not of law. o It does not depend on its recognition by other states.

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UN and Recognition o UN Charter Article 4, 32 & 35(2) – Recognition through the security council’s recommendation, then voted by the UNGA. o ICJ Statute Article 93(2) – It has to be approved for this decision

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Methods of Recognition o Diplomatic Relations o Consular Relations o Treaty Relations – Rome Statute 1998 – statute of the ICJ o Trade Relations (oldest way of recognizing relations).

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Recognition in National Courts o Carl Zeiss Stiftung v Rayner and Keeling [1967] 1 A.C. 853.

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Recognition in National Law o Foreign Corporations Ac 1991 – If a state is not recognized, firms should still be.

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Special Cases o Taiwan, Vatican, Hong Kong and Macao.

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Palestine & Kosovo (137 v. 112 states). Palestine was granted observer status 2013.

INTERNATIONAL LAW-MAKING Dixon Chapter 2 – International Law-Making

International law-making processes 

There is no international legislature. Instead, there are variety of processes for adopting new law and changing existing law.

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United Nations Charter: o Art. 25 and Chapter VII - UN Security Council: No general power to make law, but can adopt binding resolutions on matters relating to peace and security. An example of this would be UN Security Council Resolution 1373 on terrorism lays down general rules of law. o Arts. 10, 11 ,13 – UNGA and other international organizations can adopt nonbinding resolutions (‘soft law’) and binding treaties which may codify existing la and initiate development of new law e.g. 1997 UN Watercourses convention.

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Intergovernmental Conferences: o Can negotiate and adopt treaties and declarations o These may codify existing la and initiate development of new law o An example of this would be the 1973-1982 UN Conference on Law of the Sea.

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International Law Commission: o Codifies and develops general international law. o Limited law-making function, but authoritative restatement and clarification of existing laws. Examples would be the 1969 Vienna Convention on Treaty Law.

Sources of International Law 

Article 38(1) of the ICJ Statute 1. The Court whose function is to decide in accordance with international law such disputes are submitted to it, and shall apply: 2. a. International Conventions: Establishing rules vividly recognized by States b. International Custom: As evidence of a general practice accepted as law. c. General Principles of Law: Recognized by civilized nations

d. Subject to Provisions of Article 59: judicial decisions and the teachings of most highly qualitied publicists of various nations, as subsidiary means for the determination of rules of law. 3. This provision shall not prejudice the power of the court to decide a Case ex aequo et bono, if the parties agree thereto. 

Custom o A general principle accepted as law. o Binding on all states participating or acquiescing in the general practice.

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International Conventions o Binding only on the parties thereto.

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General Principles of Law Recognized by States o For example, in national law or in declarations.

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Other Sources o Soft law? Un Resolutions?

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Relationship between treaties and International law (complex) o Treaty may change/replace customary rule (Malta-Libya Continent Shelf Case) o Treaty may codify customary rule (Gabcikovo Case) o Treaty may co-exist with customary rule (Nicaragua Case) o Treaty may be modified by customary rule (Gabcikovo) o Treaty may be invalidated by customary rule ("jus cogens")

Customary Law 

Customary law is the description given to any widespread and consistent practice which states believe is required by international law, or which they intend to make into law. o For example: The exclusive economic zone: 1985 Malta-Libya Continental Shelf Case.

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It has two main elements: o State Practice o Law-making intent (opinion juris): 1969 North Sea Continental Shelf Case.

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State Practice consists amongst other things of: o Diplomatic Claims o Administrative Action o National Laws o Law Enforcement Action

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A practice does not have to be universal to be evidence of general custom. The practice of a few relevant states may be enough if other states acquiesce or do not object. Examples of these would be space travel and continental shelf claims.

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2012 ICJ Jurisdictional Immunities case: o Foreign State immunity from suit in national courts o The near total absence of state practice denying immunity to states in courts of other countries for tortious conduct was critical in establishing that Italy had violated international law when it denied Germany immunity in national courts.

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2010 Pulp Mills Case o Refers to a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context....” o Confirms what is already found in national law and multilateral treaties.

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Opinion Juris o The belief that a practice is legally obligatory, or the intention to treat it as legally obligatory CAN be demonstrated, amongst other things, by:  Reference to claims made by states.  Declarations of states at UN conferences  Resolutions of inter-state bodies  Adoption of law-making treaties (especially by consensus) o Stronger the Practice, less the need for opinion juris (1980 Tehran Case) o Stronger the opinion Juris, the less need for practice (1986 Nicaraguan Case)

o UNGA Resolutions have been used as evidence of Opinion Juris:

 Such as in the 1975 Western Sahara Case, and the 1986 Nicaraguan Case. o UN Conference declarations and consensus adopting treaties as well:  Such as in the 1992 Rio Declaration  Such as in the 1982 UN Convention on the Law of the Sea. o Custom is in principle binding on all states, but:  States are not bound by a new custom if they persistently object (1951 Norwegian Fisheries Case, 1974 Icelandic Fisheries Cases) 

Some customs are local or regional (1950 Asylum Case)

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States are free to agree to apply a different rule inter se (e.g. by treaty).

o Customary international law is the core of general international law, but it has disadvantages as a method of law-making:  Uncertainty: May be difficult to identify or prove 

Slowness: May take time for state practice to coalesce around a new rule

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Fragmented: May apply only to certain states or regions

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Vulnerable: May be undermined by persistent objection and can be changed by emergence of new practice

Treaties as Laws 

Treaties are legally binding only on those states which consent to be bound (1969 Vienna Convention on the Law of Treaties). For example, only parties to the treaty but: o Some treaties also codify customary international law, and are thus good evidence of the content of rules binding on states generally (1997 Gabcikovo Case): codified customary law is binding even on non-parties to the treaty.

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Treaties may help to create new rules of customary law binding on all states if: o There is law-making intention o The terms of the treaty are of “fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law (1969 North Sea Continental Shelf Case) o The treaty is sufficiently widely reflected in the practices of parties & nonparties (also the 1969 NSCSC). o The practically universal participation in the Geneva convention shows that states accept the prohibition of torture, this participation is highly indicative of the attitudes of states to the prohibition of torture.

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Examples of law-making treaties: o UN Charter o UN Convention on the Law of the Sea o Geneva Conventions on Law of Armed Conflict

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Negotiating a multilateral law-making treaty is this a useful method for: o Coordinating state practice o Providing evidence of opinion juris  However, it may only create new rules of general law binding on all states if it is then supported by state practice. May take time.

Codification 

Codification and progressive development of International Law is a principal task of the UN International Law Commission (ILC)

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It has resulted in important codification documents that provide good contemporary evidence of customary international law, such as: o The 1963 Vienna Convention on Diplomatic Relations o The 1969 Vienna Convention on the Law of Treaties o The 1997 UN Watercourses Convention o The 2001 Articles on Law of State Responsibility

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The ILC’s authoritative expositions of law heavily relied on by ICJ (1969 NSCSC), the UN, and foreign ministries (litigation)

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Other bodies also codify international law, such as: o UNGA 1970 Declaration of Principles of International Law Governing Friendly Relations between States.

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Codification and progressive development usually results in some element of lawmaking, such as: o Need to fill gaps o Clarify uncertainties o Change outdated rules  E.g. not every provision in 1969 Vienna Convention became customary law when adopted – government and courts needed to accept it as law.

Soft Law 

Soft law is generally used to describe instruments which are normative in substance but not in legally binding form. In other words, the name given to those rules of international law that do not stipulate concrete rights or obligations for the legal persons to whom they are addressed. They are e.g.: o o o o

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Certain UNGA Resolutions UN Conference declarations Codes of Conduct Guidelines adopted by international organizations

They are usually carefully negotiated and may be intended to have some legal significance, such as: o Codifying existing customary law  1962 UNGA Res. On Permanent Sovereingty over Natural resources  1977 Texaco v. Libya Arbitration. o Leading to the emergence of a new state or negotiation of a treaty  1963 UNGA Res. On Outer Space  1967 Outer Space Treaty

o Providing evidence of opinion juris  1970 UNGA Res. On Principles of Friendly Relations o May provide authoritative guid...