Public International Law Notes PDF

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PUBLIC INTERNATIONAL LAW NOTESTHE NATURE AND FUCTION OF THE INTERNATIONAL LAWWhat is public international law? The system of rules and principles that aimto regulate (mainly) the relations between States.Shaw: International law is a method of communicating claims, counter-claims, expectations and an...

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PUBLIC INTERNATIONAL LAW NOTES

THE NATURE AND FUCTION OF THE INTERNATIONAL LAW What is public international law? The system of rules and principles that aim to regulate (mainly) the relations between States. Shaw: International law is a method of communicating claims, counter-claims, expectations and anticipations as well as provides framework for assessing and prioritising such demands. John Austin (English philosopher): Law is a sovereign issuing a command backed by a sanction or a punishment. International does not fit in this definition, therefore it was called 'positive morality". However, it was criticized for oversimplifying and confusing. Hart - The Concept of Law: Law is a system of rules, based upon a interaction between primary and secondary rules. The international law is a prime example of a simple form of social structure which consists only of the primary rules because it lacks a centralised legislature, network of courts of compulsory jurisdiction or organised means of enforcement. Public international law operates on a basis that all states are SOVEREIGN, INDEPENDENT and EQUAL. Vattel introduced the doctrine of the equality of states into international law, declaring that a small republic was no less a sovereign than the most powerful kingdom, just as a dwarf was as much a man as a giant. Overview: International law is made by non-governmental organisations and countries themselves. Treaties are more treated like contracts and not treaties. The principal subjects of the international law are nation-states, not individual citizens. There is no unified system of sanctions in international law. It is difficult to describe the legal nature of the international law due to the lack of a coherent, recognised and comprehensive framework. There is no private international law. Traditionally, the main concern was peace. There is no precedent or common law in International law as different countries consent to different treaties. In international law the interplay of law and politics is much more relevant than at the domestic level.

Theories of international relations: realism (power) -> institutionalism (institutions) -> constructivism (compromise). International legal system:  Domestic level (vertical): Parliament, Government, Courts  International level (horizontal): General Assembly, Security Council, International Court of Justice? States comply most of the time with international law and use the language of international law in their relations. Why? Because they make it and because of the advantages (collective goals - like NATO - attack on one is an attack on all of us). It is in their own interest to do so, if they act reasonably they encourage other states to do so as well and avoid confrontations. Another advantage is the international business. It brings much more clarity and efficiency to business being carried out internationally. ICC was established under Rome Convention to judge war crimes, crimes against humanity against individuals. State can use force only in two situations: self-defence and after authorisation by SC. Where countries involved in a dispute, it is handy to have recourse to the rules of international law even if there are conflicting interpretations as at least there is a common frame of reference and they both will be talking a common language. International law cannot be a source of instant solutions to problems and conflicts and confrontation because of its own inherent weaknesses in structure and content. States can only be bound by international law is they consent like in a contract (theory of auto-limitation or self-limitation). However, it can be criticized that over 100 states were formed post- WW2 and they simply contented to the existing rules with no influence upon forming them. It is the approach that may be characterised as consensus or the essential framework within which the demand for individual state consent is transmuted into community acceptance. However, the creation of new customary rules is not dependent upon the express consent of each particular state. Problems with International law: Power politics stresses competition, conflict and supremacy and adopts its core the struggle for survival and influence. International law aims for harmony and the regulation of disputes.

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One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new realities of life into the already existing framework, so that the law remains relevant and the system itself is not too vigorously disrupted. International law has not only expanded horizontally to embrace new states established after WW2 but also extended itself to include individuals, groups and international organizations, both private and public, within the scope. International organizations have now been accepted as possessing rights and duties of their own and a distinctive legal personality like UN bringing a claim against Israel for assassinating one of UN's officials Count Bernadotte. There is also an approach that with the rise of more specific areas such as trade law, environmental law etc., international law as a holistic system is in the process of fragmentation. This had led to a debate whether international law might lead to conflicts between local systems and inconsistency in the interpretation and development. North Sea Continental Shelf Cases (a case between Germany, Denmark and the FRG and the Netherlands): a dispute was submitted to the ICJ over the delimitation of their shared Continental Shelves and the oil deposit beneath them. ICJ found that the delimitation had to be decided according to customary law because the relevant Treaty was not in force for all the parities to the dispute. Asylum Case (Columbia v. Peru): rebel Peruvian leader was seeking asylum in Colombian Embassy arguing there is a local custom of granting political asylum. ICJ found against Peru due to lack of evidence of the custom. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the United States of America): The ICJ ruled in favour of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbours. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case due to a reservation. ICJ found that the US was in the breach of a customary rule not to use force against another State. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion: "the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes

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the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris."

THE SOURCES OF INTERNATIONAL LAW The sources of international law are outlined in Article 38 of the International Court of Justice: Article 38 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 recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Civilized nation- there is no definition of civilized nation, all states are civilized. International conventions as: UN Charter, Vienna Convention on Diplomatic Relations, Convention Against Torture - written agreements whereby the States participating bind themselves legally to act in a particular way. A State must ratify a Treaty to be legally bound by it. A third-party cannot rely on a treaty. Articles 19-23 of the Vienna Convention discusses reservation. UN Charter Article 2(6): 'the organisation shall ensure that states which are not members of the UN act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security'. Pacta Sunt Servanda - 'every treaty in force is binding upon the parties to it and it must be performed in good faith'. Parties that do not sign and ratify the particular treaty are not bound by its terms (North Sea Continental Shelf cases). The rule of recognition of international law is consent.

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Customary law: "it is a usage felt by those who follow it to be an obligatory one" (Brierly, The Law of Nations) - consists of two elements: State practice and opinio juris (mental element) - Libya/Malta case. States behave in a certain way in the belief that such behaviour is law or is becoming a law. De Visscher said that a custom is a 'road across vacant land'. Customary law is established by pattern of behaviour, absence of protest by states particularly interested and consent-like behaviour from other states. State practice can be: national laws, decisions of courts, public statements, international conduct (treaty-making process or GA resolutions). There is no specific time frame for State practice, however most countries specify it within their municipal laws. Also, instant customary rule is also possible like the principle of non-sovereignty over space after launching first sputnik. However, failure to act is as much a state's attitude as are actions. Also, abstention from protest by states may amount to agreement with a rule but it has to be upon fully knowledge - Lotus case. Consistency? 'A rule of customary law must be in accordance with a constant and uniform usage practised by the States in question’ (ICJ, Asylum Case 1950) It also has to be both extensive and virtually uniform. ‘…conduct of states should, in general, be consistent … instances of state conduct inconsistent with a given rule should [be] treated as breaches of that rule, not as indications of the recognition of a new rule’ (ICJ, Nicaragua Case 1986). How many States are required to participate in the practice? Must be general, but need not be universal. (North Sea Continental Shelf cases) The decision in Anglo-Norwegian Fisheries case may appear to suggest that where a state acts contrary to an established customary rule and other state acquiesce in this, then that state is to be treated as not bound by the original rule. Opinio Juris: States will act in a certain way because they are convinced that it is binding upon them to do so (based on North Sea Continental Shelf Cases). It helps in determining how to separate international law from principles of morality or social usage. Opinio juris can be proved by: public statement of the States, government legal opinions, diplomatic correspondence, decisions of national courts, treaty provisions, conduct in relation to UN GA resolutions. There has to be an aspect of legality about the behaviour and the acting state will have to confirm that this is so, so that the international community can distinguish legal from nonlegal proceedings.

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What if opinio juris is divided? UN Declaration on the Indigenous Peoples: wasn't describing current State practice or actions States fell obliged to undertake as a matter of legal obligation, therefore it cannot be citied as an evidence of evolution of a new customary rule. ALSO decision of UN Assembly Declarations are not sources of international law. What if a State objects to a customary rule?  no protest = recognition of the validity of the rule = opinio juris  the persistent objector rule: 'a rule would appear to be inapplicable as against a State that had always opposed it' (Anglo-Norwegian Fisheries Case). A State cannot be entitled to claim that they are not bound by a customary rule because they were consistently opposing it before it became a rule. Who is bound by customary rules? Generally, custom is binding upon all States, however regional or local custom is an exception (the prevail over general custom laws). Problems with customary rules: lack of certainty (content, when did it became a rule, who is bound), unsuitable for detailed and complex issues, problems for change (violation of the rule must be necessary in order to change it), problems with assessing whether an action is a custom or a political or moral gesture. General Principles: used to close the gaps in international law like res judicata matter already judged and without right to appeal (Genocide case), good faith, equity (NSCS cases), human rights, values and the principle of estoppel (Serbian loans case), like the law of peaceful co-existence. 'It is a general conception of law that every violation of an engagement involves an obligation to make reparation' - Chorzow Factory case. Also, the Court has discretion as to which principles of law to apply in a circumstances of the particular case and it will do this upon the basis of the inability of customary and treaty law to provide required solution as in Barcelona Traction case. Judicial decisions: Article 59 ICJ Statue: 'The decision of the Court has no binding force except between parties and in respect of that particular case' the is no precedent in the ICJ. However, the Court will tend to follow earlier judgements and they are very authoritative. Writers: More important to 'discover' the law rather than being a formal source. Other sources - soft law: international legal documents that do not create a legally binding obligations like declarations in any particular field or GA or SC

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resolutions (binding upon all MS due to Article 24 and 25 of the UN Charter). The can become hard law over time like 1948 Declaration on Human Rights. However, soft law is not recognised by Article 38. However, they can be used in determining opinio juris. Hierarchy of sources: 1. Conventions and custom (later in time will have priority) 2. General principles of law (complementing the previous two) 3. Judicial decisions and writers (subsidiary means) Relation between custom and convention: later/special law will prevail in case of conflict. Peremptory norms (jus cogens): norms accepted and recognised by international community from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. A treaty will be void if it conflicts with a peremptory norm and any if any new peremptory norm emerges, an existing treaty that is in a conflict with it, will be void.

THE SUBJECTS OF INTERNATIONAL LAW AND RECOGNITION International legal capacity - subjects of international law are those that enjoy international personality. They are distinguished from objects of international law by having the capacity to exercise -to varying degrees - rights and duties under international law. Who has legal personality? States, international organizations, nongovernmental organizations, individuals (objects). Subjects of international law have their international legal personality, but also actors and participants are taking part and playing a role in the international legal system (Higgins). States have always been and will remain, the main object of international law. They are all sovereign, independent and equal. Economic and political dependence does not necessarily affect the independence. 'Only states may be admitted as full members to the UN' - Article 34(1) ICJ Statue and only states can be parties to the ICC. International law permits freedom of actions for states, unless there is a rule constraining this. No state should intervene in the internal matters of other state. Also, UN help in the administration of Kosovo and East Timor before these countries gained independence. Nicaragua case: in international law there are no rules whereby the level of armament of a

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sovereign may be limited. Two main question regarding states are the criteria of statehood and recognition of states. The Montevideo Criteria (Article 1, Montevideo Convention 1933): The State as a person of international law should possess the following qualifications (however now it is outdated as it was founded upon effectiveness and not legitimacy, but cannot be detached from recognition): 1. Permanent population (no minimum - Nauru, numbers can vary substantially) 2. Defined territory (no necessity for defined and settled boundaries Israel, disputes with neighbours would not necessarily affect the existence of defined territory) 3. Government (effective government with centralized administrative and legislative organs - best evidence, decolonization is an exception) 4. Capacity to enter into relations with other states (independence internal and external - Judge Anzilotti, puppet states are not recognised as legitimate under international law) Recognition of States - it will entail the consideration of rights and duties that would otherwise be relevant, but they do not arise just from recognition, recognition of the government implies the recognition of the state, but it does not work the other way - (two theories) can be expressed/implied, de jure(Taiwan- China)/de facto, collective/unilateral: 1. Constructive theory - States come into being only if/when they are recognised as such by other States (free from restrains? accepted only by some states?) 2. Declaratory theory - Once the factual criteria of statehood are met, a new State exists as an international person. Recognition becomes a merely a political act. 3. Additional modern criteria - respect for rule of law, democracy and human rights, guarantees for the rights of ethnic and national groups and minorities, commitment to disarmaments and nuclear nonproliferation (1991 EC Declaration). 4. Montevideo Convention Article 3: The political existence of a State is independent of recognition by other states. 5. Premature recognition: US and USSR de jure recognition of Israel 1948, India's recognition of Bangladesh 1971, Lithuania 1990. However, premature recognition is unlawful, but situation involving selfdetermination or decolonisation are exceptions. There can be also withholding of recognition (East Germany) and conditional recognition.

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6. Government that came into power by extra-constitutional means should not be recognised, at least until the change had been accepted by the people - Panama Canal case. The UK government said that it would not recognise governments distinct from states. Also if states are not recognised but are parties to an agreement, they are recognised to be bound by such agreement. To what extent is being a subject a sign of acceptance, legitimacy and status in international legal system? Kosovo- a request for an advisory opinion referred to the International Court of Justice by the United Nations General Assembly regarding the 2008 Kosovo declaration of independence apparently not under control of a centralized government. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court. The court delivered its advisory opinion declared that "the adoption of the declaration of independence of the 17 February 2008 did not violate general international law because international law contains no 'prohibition on declarations of independence'": nor did the adoption of the declaration of independence violate UN Security Council Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council reserved for itself the decision on final status. There were many reactions to the decision, with most countries which already recognise Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while many countries which do not recognise Kosovo said they would not ...