Summary international law PDF

Preview

Summary

Summary international law...

Description

CHAPTER 1: FOUNDATIONS AND STRUCTURE 1. History  1648 Peace of Westphalia = Peace of Munster, Treaties of Munster and Treaties of Osnabruck Major European powers sought to reduce the powers of transnational forces like empires and religion and instead compartmentalize territory and individuals into sovereign states. 

19th The era of Positvism State consent – a state could express its will explicitly trhough treaties of implicitly by customary practices. Unless a state expressed its consent no international legal obligation exists. o Hague Conferences in 1899 and 1907 o 1885 Scramble for Africa



The interwar period 1919 The League of Nations, organization to maintaince world peace 1920 The Permanent Court of International Justice (PCIJ)



Period after the end of WO II International Tribunal of Nuremberg, to prosecute nazis for the atrocities during WO II League of nations was replaced by the United Nations (UN) 

Security Council Competence to maintain international peace and security But Cold war between the great powers of the East and West, this marred the activities of the UN consequently the Securtiy Council remained large inactive



General Assembly = all member states are respresented, consultative role Established the International law commission (ILC) to promote the progressive development of international law

Regional  North Atlantic treaty organization (NATO) = created in 1949 to counter the threat of the Soviet Union. Members agree to offer each other mutual defence in the event of an attack by an external actor. 

European Union (EU) 1951 the European Coal and Steel Community (ECSC) 1957 treaty of Rome created the European Economic Community (EEC) 1992 Maastricht treaty created the European Union (EU)



Council of Europe Established in 1949 to strengthen intergovernmental and inter-parliamentary cooperation. It adopted in 1950 the European Convetion on Human Rights (ECHR)

2. Structured of international law Centre of the international system = sovereign states 

The international law of coexistence = legal answers to questions that are inherently of interest to more than one state and require to separate the powers of the sovereign states and thereby uphol peaceful coexistence. 2 of more stated have colliding interests in the substance of the issue.  General international law, fundamental principles of treaty law, the secondary legal principles on state responsibility



The international law of cooperation = legal answers to issues that are not inherently of interest to two or more stated but which have nevertheless been turnes into matters of international concern trhough the adoption of a treaty. ‘optional’ in the sense that states decide themselves if they want to turn a matter into international law.  International human rights law, international environmental law and international economic law

3. Basis of international obligation The peaceful coexistence of sovereing states require the existence of a number of basis rules that dictate how states may behave and may not behave in their mutual relations. In practice, States never question that they are bound by international law, it argues that the allegations are incorrect or that is was justified in violating the prohibition. 4. Relationship between international and national law International law has supremacy over national law States can freely decide how to implement international obligations, IL is only concerned in actual breaches of international legal obligations. International law is applied in national legal systems You have 2 systems: monism and dualism 

Monism holds that internatioan law and national law form a single legal order. International law can be applied directly in the national legal system of states and international norms prevails in case of conflict.



Dualism holds that international law and national law are two separate legal systems that operaty independently. If international law needs is applied, its translated into the national legal system by adoption of national legislation.

 Customary international law is in both systems directly applied in their legal sytems and stipulate that it takes precedence over domestic legislation. 5. Alleged inadequacy of international law Criticism is that the existing state-centric configuration of the international legal system is outdated and at times counterproductive to creating a more fair and just world. But the construction of a legal system was never motivated by a desire to create a more just and equitable word, it was led by a desire to uphold international order and stability. It was less about justice than it was about order. CHAPTER 2: SOURCES OF INTERNATIONAL LAW 1. Article 38 of the Statute ICC The sources of international law 

Conventions (treaties) Most direct way for states to create right and obligations under IL. Treaties or based on stateconsent and are only binding upon consenting states o Bilateral treaty: between two states o Multilateral treaty: between more than two states o Constituent traty: treaty which establishes an international organization For example: UN charter created the Security council and give it the competence to adopts resolutions binding upon all members of the UN.



Custom international law When a particular way of behaving is followed as a general practice among states and accepted by those states as legally binding. Thus there is both an objective element (state practice) and a subjective element (believe that its legally binding)  Passage over indian territory, Asylum case 1) Objective element – state practice = consistent repitition of a particular behaviour, meaning that for a considerable periode of time states have acted in a certain manner when confronted with the same facts. 3 element: consistency, duration and generality o Consistency: constant and uniform practice, general application suffice o Generally: widespread in majority of states, no unanimity required o Duration: evolves slow over time, less important bc instant custome possible

2) Subjective element: opinio juris Only creates a legally binding custom when it is accepted as law, this happens when states act as if the rule was already legally binding. Relationship between custom and treaty law When a treaty codifies customary law, the parties of the treaty or bound by the treaty as well as by customary law while non-parties are legally bound by the same rules not by treaty by customary law. When the content of a treaty base and a custom based obligation differ o Jus cogens character prevails o Treaty obligation will prevail between parties o The principle of lex posterior o Lex specialis derogat lex generali 

General principles Subsidiary, only consulted when a dispute could not be resolved on the basis of a treaty or customary international law (equity, good faith, pacta sunt servanda)



Judicial decisions The ICJ’s decisions are only binding on the parties to the case (inter partes) Nevertheless decisions of the ICJ have substantial interpretative weight ICJ is not bound to its own decisions, it can judge diferrently is simular case



Scholarly contributions Teachings of the most higl qualified publicists of the various nations Least important source, ICJ rarely makes any reference to specific academics BUT contributions international law commission (ILC) special role, the composition of the commission is intended to be representative of all legal systems of the world hereby the commissions draft article are seen as value interpretive tools.



Unilateral statements By state representatives, can create obligations as stated in PCIJ and ICJ case law Unilateral declarations can be issued by heads of state, heads of government and ministers of foreign affaires.

2. Hierarchy of sources General presumption: apart from the distinction between primary and secondary law, all legal sources carry the same normative weight EXCEPTIONS 1) Jus cogens norms Art 53 of the Vienna convention, jus cogens norms are ones that are accepted and recognized by the international community of states as a norm from which no derogation is permitted (torture, slavery, genocide, crimes against humanity,..)

2) Erga omnes norms Or cummunitarian norms, higher normative weight therefore a breach of an erga omnes obligation can be invoked by any state and not just by a state that is immediate involved. 3) Obligations UN Charter Art 103 of the charter stipulates that the obligations under the Charter prevail if they conflict with obligations under any other international agreement. 3. Non binding commitments and soft law Soft law = instruments that are not legally binding Declarations and resolutions cannot create a legally binding obligation, they are relevant to the formation of international law because they can assist in the creation of customary international law. CHAPTER 3: LAW OF TREATIES 1. Treaty as a concept under international law The 1969 Vienna Convention on the law of treaties (VCLT) 

Definition = a treaty is an international agreement governed by international law concluded by two of more international subjects with treaty-making capacity. We can distuingish bilateral treaties (concluded by two states) and multilateral treaties (concluded by more than 2 states). The VLCT only applies on written treaties and more importantly only treaties between states. International organisation can also be parties to a treaty but those are governed by the 1986 Vienna Convention on the law of treaies between international organizations or between states and international organizations.



Legal basis Stated consent – Art 34 VCLT when a state has consented to be boune by a treatu and has become a party, it must comply with the terms (pacta sunt servanda) Opm! Art 3 VLCT – even though the VLCT only applies on written treaties does not affect the legal force of other agreements. ‘oral’ agreements are also ‘treaties’ for the purpose of international law. Great Belt case – as lang as the instrument in question testifies to an intention to create rights and obligations under international law, its considered as a treaty. In practice difficult to define wheter is wat the parties intention to be bound. o Terminology, a lack op precision in the wording and the use of general and vague terms may indicate a lack of internation to be legally bound.

Art 102 UN Charter stipulates that all the treaties and international agreement entered into by UN members shall be registered with the UN Secretariat. Registristion creates a believe umong the parties that it is legally binding 

Case law Great belt – if the entention is there, its considered a treaty Sea continental shelf case – signatures or initials Case concerning martime delimitation – minutes of the meeting

2. The auhority to conclude a treaty All states possess the legal capacity to conclude treaties but not all representatives of a state are considered competent to conclude a treaty on behalf of a state Art 7 VLCT – Concept of full power ‘full power’ is a document that authorizes a state representative to negotiate and conclude a treaty on behalf of the state. Art 7(2) states that heads of state, heads of government and ministers of foreign affairs may perform all acts that relate to the conclusion of a treaty on behalf of a state without presenting full powers. If a person with no authority concludes a treaty, the state may decide to avail itself of the opportunity to disvow the act of rhe person in question by subsequently endorsing the act and thereby establishing its consent to be bound. 3. Treaties between states and international organizations International organizations can also have treaty-making powers (UN,EU,..) 1986 vienna convention on the law of treates between IO and states and IO’s. 4. Consent to be bound Art 11 VCLT – signature, ratifictation, acceptance, approval,… Art 15 VCLT - accession by a treaty already negotiated and signed by othet states in the following circumstances:  If the treaty provides for it  If it is otherwise established that the negotiation parties were agreed that it shoud be possible  It all the parties agrees that a state may express its consent by such means Important distinction between signature and ratification. In practice, often is required that not only a signature Is given by the potential state party but also a subsequent confirmation by the state.

Art 14 VCLT – ratification is required if:    

It is specified in the treaty itself Established that the negotiating parties agreed that it was needed The representative who signed the treaty did so subject to ratification It appeared from the full powers of the representative or it was expressed during the negotiation that that was the intention of the state.

5. Entry into force-obligations In practice, a state isn’t legally bound by the treaty until the treaty enters into force Art 24 VCLT -

Bilateral treaties: enters into force when both parties sign the agreement Multilateral treaties: when consent is established between all negotiating states.

But states not entirely free to act as it pleases when its given its consent or expressed an initial intention to be bound – ‘interim period’ Art 18 VCLT Refrain frocm acts which would defeat the object and purpose: (a) It has signed the treaty but not yet ratified it (b) It has expressed its consent to be bound by the treaty, pending the entry into force 6. Validity Rules on invalidity – Art 46-56 and 64 VCLT 

Art 46 VCLT Invalidity when consent to be bound was expressed in violation with internal law It is required that the violation was manifest and concerned a rule of its internal law of fundamental importance.



Art 48 VCLT Invalidity when error in the formation of treaties Only be invoked when it relates to a situation or fact which exist at the time when the treaty was concludee and which formed an essential basis of the consent. (2) error can not be invoked by a state if he contributed to the error



Art 49 VCLT Invalidity when a state can invoke fraud as invalidating consent if it has been misled or induces to conclude a treaty



Art 50 VCLT Corruption of a representative of a state



Art 51 VCLT Coercion, consent should be without legal effect when it has been procured through acts or threats directed against a state representative



Art 53 VCLT Specifies that a treaty is void when it conflicts with a peremptory norm of general international law (jus cogens). Opm! Art 53 differs from the other articles because it is the only one that focuses on the content of the treaty in question and thereby tries to limit the contractual freedom of the states. JUS COGENS = prohibition against torture, genocide, ban on slavery, aggression, crimes against humanity, piracy, self-determination, apartheid and other forms of gross racial discrimination.

7. Reservations = becoming a party to a multilateral treaty without accepting all of its provisions and obligations, reservations can be made whereby those provisions aren’t binding upon the state. Reservation – interpretative declarations – derogations - Reservation = wherby a state exclude or modify the legal effect of a treaty provision - Declarations = specify of clarify the meaning the state attaches to the obligation - Derogations = not apply certain provisions in times of emergenvy of national crisis Art 19 VCLT reservations are excluded in 3 circumstances made by a state when signing, ratifying, accepting, approving or acceding 1) Reservations can’t be made if the treaty expressly stipulates not permitted 2) Some treaties only provide that certain reservations can be made 3) Reservation cannot be made if it violates the object and purpose of the treaty Art 20-21 VCLT – acceptance and objection to reservations A reservation will not become effective in relation to another contracting state unless that state has accepted it explicitly or implicitly. If a state has not objected within 12 months, it is deemd to have accepted it. Art 20 states that acceptance is not required when the treaty stipulates the possibility of reservations. A state can react to another state’s reservations in 3 ways 1) It can accept the reservation 2) It can object to the reservation and express the intention that the treaty will not enter into force between the two states 3) It can object to the reservation but refrain from expressing an intention If the resevations violates the object and purpose, 2 options 1) The invalidity of the reservations nullifies the instrument as a whole, reserving state is no longer considered to be a party to the agreement 2) Ignore the reservation and conclude that the state remains bound by the treaty, including the provision to which the reservation was made

ILC – presumption of severability by which unless the states maken it manifest that it will only be a party to the treaty if it can benefit from the invalid reservation, it will be presumed to be fully party without benefitting from the reservation. 8. Interpretation Principles of treaty interpretation – Art 31-33 VCLT 

Art 31 VCLT Three element: text, context, object and purpose (2) not only preamble but also annexes, agreements etc in connection with treaty (3b) permit agreements and practice subsequent to the adoption (3c) taking into account any relevant rule of international law applicable parties



Art 32 VCLT The status of the preparatory works, only to be consulted in order to confirm the meaning resulting from the application of Art 31 ot to determind the meaning when the interpretation according to Art 31 remains ambiguous.



Art 33 VCLT If a treaty has been authenticated in 2 or more languages the text is equallt authoritative in each language unless otherwise specified.

The interpretation also depends on the character of the treaty - Contractual treaties, focus on state consent - Law-making treaties, object and purpose of the treaty - Constitutive treaties, functionality institutions - Human right treaties, less according to intention and more effectivness 9. Amendments and modifications The application of a treaty can have the practical effect of modifying the content of the treaty if it has been consented to by the parties. Art 39 VCLT possibility of formal amendments by specific agreement often termed ‘protocols’ Art 41 VCLT – two or more parties to a multilateral treaty may conclude an agreement modifying the treaty between them. When is it particulary obvious to parties that their treaty commitments need to take account of developments, they may decide to adopt a ‘framework convention’ Bv: UN framework convention on climate change (UNFCCC)

10. Termination and withdrawal Art 54,57 VCLT - A treaty may come to an end and terminate if its purpose is fulfille of if it is clear that is is limited in time and that time has expired. 

Art 56 VCLT A state may only denounce or withdraw from a treaty where the parties intented to permit such possibility or where the right mar be implied by the nature of the treaty. Party must give no less than 12 months notice of it intention to denounce.



Art 60(3) VCLT A state may terminate a bilateral treaty if the other state materially breaches its obligations under the treaty. A material breach is a violation of a provision that is essential to the object and purpose of the treaty.



Art 60(2) VCLT Other parties may unanimously decied to suspend the operation ot the treaty in whole or in part or to terminate it either in relations between themselces and the defaulting state or as between all parties.

Circumstance in whic...