PIL Notes Chapter 1 - 3 - Summary Public International Law PDF

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Chapter 1: The Nature and Development of International Law The Nature of International Law a. Definition of Int’l law i. Lotus case: Int’l law governs the relations between independent state. ii. Schwarzenberger: International law is a system of rules and principles to govern international relations...

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Chapter 1: The Nature and Development of International Law 1. The Nature of International Law a. Definition of Int’l law i. Lotus case: Int’l law governs the relations between independent state. ii. Schwarzenberger: International law is a system of rules and principles to govern international relations between sovereign states and other subjects if Int’l law. b. Distinction Between Int’l Law and National Legal Systems Int’l Law Horizontal legal system between sovereign and equal states. It lacks: - Supreme central authority - Formal legislature/ parliament - Executive/ government as UN is not really an executive - Enforcement capability - Unified court system as ICJ is not compulsory Original Focus - Law of war - Law of peace - Treatment of diplomats - Treatment of subjugated people - Sovereignty of state - Not much focus on individuals now or Int’l corporation in the early days - Piracy, war crimes & genocide Applied to: - States - Int’l organizations - Individuals - Non-state actors and entities - Private entities (NGO) - Introduced new subjects such as corruption c. Fundamental Principles of Int’l Law i. Sovereignty and equality of States ii. Non-intervention affairs of States iii. Prohibition of threat/ use of force iv. Peaceful settlement of disputes v. Respect for human rights vi. Self-determination of people

National Legal System Vertical legal system - There is a government that exercises supreme authority within the territory. - King/Queen/President approves the laws - Legislature promulgates law - Executive/Government implements the law - Police/ regulator enforce the law - Court decides dispute and punishes crime

Applied in relation between - Individuals & individuals (tort, property & contract) - Individuals & corporation (shareholder/investor right) - State & individuals (criminal & human rights) - State & corporation (regulatory oversight of banks & firms)

2. International Law as Law a. Is Int’l Law a Law? Why Int’l Law IS Law? 1. Consensual Theory It regards actual practice of States as the foundation of Int’l law. The binding characters of Int’l law flows from the consent of States and not the will of a supreme sovereign. It is a law because the subjects consented to it. Consent is given either expressly by means of treaties or impliedly by means of customs.

Why Int’l Law IS NOT Law? (Weakness) 1. Austin Command Theory According to Austin, law is a command enforced by sovereign political authority. As there is no sovereign political authority above sovereign States, Int’l law could only be regarded as positive Int’l morality. The rules are not command but are formed by state practice and consent.

2. Lack of Effective Institutions Int’l law lacks institutions for making, application and enforcement of law. The General Assembly of 2. Natural Law Theory UN is not equivalent to World Legislature as it has Rules of law are derived form the application of no legislative power and its decisions are not law of nature which is based on objective moral binding. ICJ has limited competence as resort to principle. Therefore, Int’l law is an ideal system of them is optional and requires consent from both law founded on the Int’l community being a parties. UN Security Council’s enforcement power reasonable community. is frustrated by the veto power of the Permanent Since law making in Int’l law is dependent on consent of States, this theory is flawed. Natural law Members that are politically motivated. can still be found in certain Int’l law rules such as human rights and jus cogens. 3. Lack of Effective Enforcement Machinery Int’l law lacks effective enforcement machinery. Enforceability is necessary in any system of law but 3. Ubi societas, ibi jus Int’l law only has a rudimentary form of Brierly said that law and society have to coexist. enforcement. Int’l Law is different from national Law is part and parcel of society. Int’l law would thus be the law to govern a society legal system as it does not have a well organized of nations. Int’l law would be necessary for the Int’l and highly centralized national legal system. society to function and is thus binding. 4. Vital Interests States are reluctant to comply with Int’l law if their 4. Implied Cognizance by Int’l Community That They Are Bound to A Body of Int’l Rules vital interests are at stake. This can be seen through use of force by powerful State such as No one claims to be above the law. Israeli violation of Argentinian sovereignty when During the invasion of Kuwait by Iraq and Iraq by they barged into Argentina to seize their war US, Iraq and US argued that they were justified by criminal, Adolf Eichmann in 1960. Veto power by law to do so. Int’l community regarded the the Big Five then ensures no enforcement action invasion as unlawful instead of immoral. are taken against them or their allies. States tend to seek legal justification when they departed from a legal norm. 5. Vital Rules Are Not Obeyed 5. Most of The States Obeyed the Law at Most of Validity of legal system stands or falls according to the degree which vital rules are being obeyed. the Time Example of vital rules are the prohibition of use of Although Int’l law is occasionally breached, they are still usually followed. Genocide of the Kurds by force. But this rule is often breached and Int’l law seems powerless to prevent it from happening. A the Iraqi and US invasion of Grenada are law cannot be law when it has no power to uphold exceptional case of breach. No law including national legislation is perfect and the basic interests of Int’l community. the existence of law cannot be denied just because of occasional failures.

6. Comparison with National Legislation People tend to set the yardstick in defining law as having courts and legislative assemblies and since Int’l law falls short of these, it is not law.

b. Reasons State Observe Int’l Law i. Sense of Obligation – States feel obliged to honor Int’l law because these rules came into existence based on their consent. ii. Reciprocity & Common Self-Interest – Int’l community needs Int’l law to be stable and to maintain law and order such as in business matters. iii. Political and Economic Costs – A State can lose much through violation of Int’l law such as the legal sanctions that might be imposed, loss of credibility, loss of trust and reduction in foreign trade. 3. Enforcement of International Law a. Peaceful Means – Enumerated in Art. 33 of UN Charter i. Int’l Claim - Victim State claim against the State allegedly responsible for the violation. Victim usually seeks restitution and violator is required to undo the violation if possible. Where restitution is not feasible, compensation is paid for the injury suffered. Victim may also seek for satisfaction such as acknowledgement of violation or formal apology. ii. Judicial Enforcement – States can have recourse to ICJ. Although the recourse is not compulsory, the judgment is binding if a matter is referred to ICJ. In case of noncompliance, it is referred to UN Security Council. b. Coercive Means – Sanctions i. Non-military means 1. Self Help – Unilateral force can only be used for self-defense under Art. 51. 2. Countermeasures – Retorsion is the disruption of diplomatic ties, ban on trade and withdrawal of voluntary aid programs from the offender State. Reprisals are illegal acts rendered legal by prior illegal act by the other State. ii. Military means 1. Art. 2(4) of the UN Charter prohibits the use of force onto another State with two exceptions. Art. 51 allows a State to use military force in self-defense for an actual armed attack. Enforcement measures by Security Council under Chapter VII of the Charter requires a resolution if there is a threat/breach to peace or act of aggression.

Chapter 2: The Sources of International Law 1. The Traditional Source of International Law a. Art. 38 of the Statute of the ICJ – 1. In solving disputes, court shall apply: 1. Int’l conventions (treaties) whether general or particular, establishing rules by contesting parties 2. CIL 3. General principles of law recognized by civilized nations 4. Judicial decisions and writings of publicists as subsidiary means 2. Court can decide a case ex aequo bono (what seems equitable to the judge) if the parties agree b. Art 38 is not a comprehensive list of sources and does not indicate hierarchy. It does not include all possible sources of law. This could be due to the distinction between sources of law. 1. Formal sources include the process by which a legal rule comes into existence. It is done through law creating process. Example is passage of Bill in Parliament and treaties. 2. Material sources includes the substance and content of legal obligations. It is done through law identifying process. Example includes judicial decisions and writings. 3. Evidentiary sources solely concerns the substances. 2. Treaties a. Vienna Convention on the Law of Treaties 1969 – It is a codified rules of treaties created by the UN to honor treaty obligations and to promote progressive development in the law of treaties. It defines treaties as an Int’l agreement concluded between states in written form and governed by Int’l law, whether embodied in single instrument or two or more related instrument and whatever it’s particular designation. b. General Principle of Treaties 1. Voluntary - Treaty is based on consent expressed by accepted methods such as signature, ratification and accession 2. Binding only on those who signed/ ratified it - Treaty is binding on the parties by virtue of pacta sunt servanda which is reaffirmed by Art. 26 of Vienna Convention on the Law of Treaties. The general principle is that only parties to the treaty are bound by its terms. 3. Exception (Art 53 of Vienna Convention)- Only treaties of ergo omnes (effective against the whole world) such as treaties of territorial boundaries are capable on binding on all states ( 1984 Agreement on the future of HK between UK and China ) 4. Obligations must be carried out unless a defence is available – Hungary v Slovakia, Bosnia and Herzegovina v Serbia and Montenegro Case: Nuclear Test Cases (Australia v France/NZ) Facts: France conducted nuclear test in its territory and established a prohibited zone excluding vessels. Australia claimed that the test caused the fallout of radioactive materials into its territory and infringed its rights to be free from atmospheric nuclear test, rights to territorial sovereignty and rights of navigation. Judgment: The French government had made public its intention to cease nuclear test by end of 1974. Thus, it has taken a legal undertaking and must follow a course of conduct consistent to the declaration. Importance: Declaration made by way of unilateral act may have effect of creating legal obligations without the need of acceptance or reply from other states.

c. The Importance of Treaties – CIL is slow in its law making process and lack in precision compared to treaties which is much faster and precise since it is written. d. Interaction Between Treaty Law and Int’l Law 1. Treaty as a material source for customary law Case: North Sea Continental Shelf Facts: A dispute arose between Germany with Denmark and Netherlands concerning the delimitation of continental shelf in the North Sea. Denmark and Netherlands argued that although Germany was not part of the 1958 Geneva Convention on the Continental Shelf, the equidistance principle in Art. 6(2) applied because the Art. embodied CIL. Judgment: The court ruled that that in order for a new rule of CIL to emerge from provision in a treaty, there has to be widespread state practice and opinion juris. The court ruled in favor of German as there was not enough countries that ratified the convention for it to be considered widespread. A treaty may relate to custom Importance: It is possible for a multilateral treaty to become a material source binding upon parties and non-parties alike. A treaty rule may relate to custom either three ways: 1. Declaratory of a rule of CIL (codify pre-existing rule of CIL) – parties to the treaty are bound by the treaty while non-parties are bound by the obligations in the CIL. 2. Crystallize a rule of CIL (by widespread participation in the treaty) 3. Generate a rule of CIL in the future 2. Parallel existence of treaty rule and customary rule Case: Nicaragua v USA Facts: US supported the military and paramilitary of the armed opposition in Nicaragua on the pretext of aiding El Salvador. Nicaragua brought a claim against USA alleging that USA had used armed force and intervened in its affair contrary to Int’l law. USA argued that the court has no jurisdiction because it had made a reservation to its acceptance to the court’s jurisdiction that excluded disputes arising from multilateral treaty which is the UN Charter in this instance. Nicaragua claimed that the court has jurisdiction based on rules of CIL. Judgment: The customary rules on the use of force and intervention continued to bid USA in parallel with the obligations under UN Charter. Thus, customary rules did exist in parallel with treaty law. e. Termination of Treaty – Art. 62 of the Vienna Convention Law of Treaties allows termination of treaties if there is a fundamental change in circumstances (rebus sic stantibus). One of it is supervening impossibility of performance of the subject matter of treaty. Case: Gabcikovo–Nagymaros Dams Facts: Hungary and Czechslovakia signed a treaty for joint investment to produce hydroelectricity, improve navigation and protect areas along the bank of Danube River runs, the Gabcikovo and Nagymaros. The cost of investment will be borne by both parties equally. Hungary abandoned the project on reason of ecological necessity after scientists expressed fears about ecological consequences. Judgment: To invoke ‘state of necessity’ as reason to hold back on treaty, 5 elements must be fulfilled. 1. It involves the essential interest of the State.

2. The interest is threatened by grave and imminent peril. 3. The act being challenged must have been the only measure to protect the interest. 4. The act must not seriously impair the essential interest of the state towards which the obligations existed. 5. The state did not seek for the situation of necessity. There was a possibility of damage to the ecology in the future but it was not grave or imminent peril. Hungary had other means other than abandonment of the project such as mitigating measures. ICJ held that both Hungary and Slovakia have breached their legal obligations. Each party must compensate the other for the damage suffered. A new treaty is signed for the ICJ judgment but Hungary delayed completing their part of the dam. This dispute is still not resolved. 3. Custom – According to Art. 38(1)(b) of the Statute of ICJ, there are two essential elements for Int’l custom which are state practice and opinion juris. This is followed in North Sea Continental Shelf cases. a. State Practice – There must be a general (widespread) and consistent State practice. State practice consists of the words, actions and omissions of State. Silence of the States produces a binding effect under the doctrine of acquiescence. 1. Generality of practice - The practice must be common for a significant number of States. The available practice has to be so widespread that the remaining inconsistent practice becomes marginal. If the State practice is substantially divided, it is not widespread and cannot amount to customary rule. More weight will be given to practice of States whose interest are specially affected by the new rule. For an example, only practice of states with territorial seas are referred to as opposed to landlocked States in the Fisheries Case. When there has been widespread and consistent State practice, silence is interpreted as acquiescence under Art. 38(1)(b) of the Statute of ICJ that presumes State’s acceptance unless shown otherwise. States may dissent from such rule by statements, protests or simply by adhering to different practice. When a State objects to a particular practice, it may not be bound by any evolving customary law. This is known as persistent objectors. A persistently objecting State is not bound by eventual customary rule if the objection was maintained consistently and clearly from the beginning until now. A subsequent objector however cannot prevent the rule from binding on the State. Case: Anglo-Norwegian Fisheries Case Facts: Norway claimed exclusive fishing zone around its coastline extending to 50 miles. UK requested the ICJ to determine how far Norway’s territorial claim extended to the sea and to award UK damages in compensation for Norwegian interference with UK fishing vessel in disputed waters, claiming that Norway’s claim to such an extent of water was inconsistent with Int’l law. Judgment: Coastline delimitation rule put forward by UK was inapplicable as against Norway. The court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the Norwegian system to be contrary to Int’l law. Importance: Persistent objectors are not bound by the evolving customary rule Case: The Asylum Case (Columbia v Peru) Facts: After an unsuccessful rebellion, Haya de la Torre, the leader of rebel movement, sought refuge and diplomatic asylum in Columbian Embassy in Lima, the capital of Peru. The Peruvian Government refused safe conduct for him to go out of Peru. The issue is whether a local custom permitting a State to grant political asylum

existed in Latin America. Judgment: The asserting State has to prove that the custom has established in such manner that it became binding on the other State. The Columbian Government must prove that the custom is used constantly and uniformly by the States. The local custom in this case was not proven. Importance: The court recognized that a local custom could exist. 2. Consistency of Practice – State practice has to be reasonably consistent. In Nicaragua v USA, ICJ ruled that a State practice need not be completely consistent but substantially consistent. In the North Sea Continental Shelf, ICJ suggested that the length of time will vary and is not a pre-requisite to the formation of CIL as long as the other requirements are met. b. Opinio Juris Sive Necessitatis – The conviction that the practice is binding upon them as law 1. We have to distinguish state practice amounting to law from other kinds of State activity such as acts of friendship. Example of acts of friendship are the humanitarian aid to Indonesia from Malaysia during natural disasters. 2. PCIJ accepted opinion juris as essential element in the formation of customs in the North Sea Continental Shelf case. Opinio juris cannot be inferred and has to be independently and positively proved. Dissenting judgement from the said case said opinio juris can be inferred from state practice ( Martin Dixon , p36) 3. Proof of opinio juris – First method is the express acceptance of the practice as law and declaration by the State. Absence of protest tends to prove that they do not object to the formation of customary rule. Another method is through casting an affirmative vote to a resolution of an Int’l organization or ratifying an Int’l convention. 4. Degree of proof - Vary according to the facts and circumstances . Example : an alleged rule that claimed to attain the status of jus cogens require clear evidence ; an alleged rule that grants rights or privileges requires less proof , can be inferred from repeated state practice 4. General Principles of Law a. General principle of law are the legal principles, which are firmly established in all or most of the national systems of law, in so far as they are applicable to relations between States. b. This is to fill the gaps between treaty law and customary law so as to avoid situations of non liquet. c. Some of the general principles are based on natural justice such as good faith, estoppel, acquiescence and proportionality. Others are based on legal logic or statutory interpretation. d. Another one is the principle of equity. In Fisheries Case, although Norway won the claim, equitable solutions are called upon. In Diversion of Water from Meuse case, Judg...