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PUBLIC INTERNATIONAL LAW EXAM
What is public international law? ✔ ✔law applicable on international community; tool to regulate the relations in international community through binding rules of conduct What is the International community? ✔ ✔originally interstate community → international law today: international recognition of an individual + creation and multiplication of international organizations It is no longer interstate but IL is about the role of states in international relations and about the influence of state sovereignty in IL Who are the subjects of international law? ✔ ✔States - double role: creators of IL + addressees of IL What spheres does IL regulate? ✔ ✔Cooperation, settlement of disputes, human rights and other spheres What is covered under cooperation?✔ ✔(diplomatic relations, peaceful coexistence,communication,trade/commercial law, State jurisdiction,law of the sea, law of outer space, polar regions (common heritage of mankind)environmental law, procedural rules - treaty law, international organizations, international institutional law) What is covered under settlement of disputes? ✔ ✔peaceful settlement of disputes (mediation, judicial methods, diplomatic action etc.) Recourse to coercion (sanctions, use of force) International humanitarian law International responsibility for the violation of IL What are the main principles of IL? ✔ ✔Sovereign equality Pacta sunt servanda Prohibition to use force Peaceful settlement of disputes
International cooperation Non-intervention Self-determination What is the principle of sovereign equality?✔ ✔confirms the fundamental character of today's public international law - cooperative body of law - and of the international community - based on the equality of States before the law Sovereignty + equality Other principles derive from it: non-intervention, respect for territorial integrity ..., permanent sovereignty over natural resources, immunities of State's leaders and members of government in foreign States etc. Sovereign equality
- States are subject only to international law
- States have an identic international legal personality = is expressed by the maximum of competences an entity can possess on the international level: the same capacity to act, to obtain rights and assume obligations The same rights and obligations within the conditions posed by international law Equal participation in the creation of international law
- Sovereign equality and United Nations (equal participation in all activities, organs) equality before law x differentiated treatment What is state sovereignty?✔ ✔in the international order, characteristics of a State meaning that it is not subject to any other power of the same nature power of the State to decide itself the limits of its powers without any external interference What is Pacta sunt survanda? ✔ ✔broader sense: States shall fulfill in good faith their international obligations → to comply with all public international law → Obligations assumed by States in accordance with the UN Charter; international treaties and customs and other relevant sources of IL
What is the nonintervention principle? ✔ ✔confirmation of the principle of sovereign equality Special importance of the maintenance of peace and security → exception (UN Charter, collective action) easy to invoke (some States attempt to prevent even a discussion) What does "intervention" mean? What is the scope of "domestic jurisdiction"? areas not regulated by IL X today IL penetrates all spheres What are two things in great controversy in IL? ✔ ✔area of human rights, self- determination What is self-determination?✔ ✔people of the colonial territorial unit may freely decide about their own political status → independence, integration or free association with an independent State, other forms ←original concept today invoked in other contexts: creation of a statehood, protection of sovereignty and independence of a State, permanent sovereignty over natural resources, resolution of disputes, minority rights (→ autonomy, self-administration) → today's principle: against partial or total disruption of the national unity and territorial integrity of a State Where are today's principles expressly laid down?✔ ✔Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, adopted by GA resolution 2625 (XXV) of 24 October 1970 Article 2 of the UN Charter + other sources What is the relation of IL and international politics?✔ ✔IL is often the product of the generalization and rationalization of the international political practice of States + retroactively it affects the sphere of international politics and influences the foreign policy stands and conduct of a State IL = important tool of foreign policy of a State (support, protection of such policy) X BUT also obstacle to foreign policy
→ if IL prevents the exercice of such policy, attainment of political goals How do states respect IL?✔ ✔State's credibility; prevents chaos, crises → sense of coexistence and interdependence of States → international solidarity → price for its violation too high: State faces negative attention of international community, critics, protests, sanctions, judicial disputes, important material losses Where do we find the sources of International law?✔ ✔Article 38 (1), ICJ Statute a. international conventions, whether general or particular; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. (2) What is the conventional formation of IL?✔ ✔treaty What is the nonconventional formation of IL?✔ ✔"Spontaneous" formation of IL custom, general principles of law, equity "Voluntary" formation of IL unilateral acts (States, IOs), non conventional joint acts What is a treaty?✔ ✔express agreement whereby the contracting parties bind themselves legally to act in a particular way or to set up particular relations between themselves → parties create binding obligations for themselves → express consent of the parties is required → non parties are not bound by the treaty → parties = subjects of IL other terms: conventions, international agreements, charters, pacts, covenants etc.
What is meant by general usage in the def. of a material element in custom?✔ ✔2. general usage general customary norms: Art. 38, ICJ Statute - "general practice" = "a very widespread and representative participation" provided it includes that of States "whose interests were specially affected" (North Sea Continental Shelf Case, 1969) ← applies to all States ← States whose interests are specially affected - to ensure the application, "effectiveness" of law
- positive action of all States is not required - acts of those whose interests are specially affected suffices (those capable of contributing actually to the creation of customary rule): for ex. law of outer space - USA and Soviet Union, other States approved the resulting principles
- acquiescence - substitutes positive action of all States
- refusal to be bound by a general custom - "persistent objector": a State raised an objection against the creation of a customary norm but did not succeed to prevent its emergence → it is exempted from its effects, the custom does not apply to it "in any event the ... rule would appear to be inapplicable as against Norway inasmuch as she had always opposed any attempt to apply it to the Norwegian coast" (Anglo- Norwegian Fisheries Case, 1951) a State cannot oppose to a jus cogens customary rule regional, local customary norms: customs of a limited geographical effect attested by practice and case law inter-State consensualism is marked, bilateral custom requires unanimity Right of Passage over Indian Territory Case, 1960: ICJ confirmed the constant and uniform practice accepted as law between the two States What is the psychological element In custom?✔ ✔opinio juris (sive necessitatis) = belief that a particular activity is legally obligatory States feel to be legally bound to act in a particular way Art. 38 (1): b. international custom, as evidence of a general practice accepted as law Why important? differs from international courtesy; moral or political act/statement
repetition of precedents over time which gives rise to the belief of obligation sometimes reversed process: expression of a need for law (for ex. by the UN GA) completed by a practice to produce a custom creation of a new custom - modification of an existing rule → process (Nicaragua Case) claim - absence of protest by States particularly interested - acquiescence by other States → assumption that such conduct is accepted as legal newly established State: bound by general international customary norms → by entering into relations with other States new States signify the acceptance of the totality of IL What is the difference between a treaty v. a custom?✔ ✔equal sources of IL treaty - legal security; express consent custom - reflects the essential values and needs of int'l community at any given time, flexibility → customary process = factual reality is gradually transformed into a legal reality
- not an expression of will, but a belief such a rule exists
- not a product of a legal act but of a series of conducts, decentralized process
- customary and conventional norms can co-exist
- treaty norm can codify the customary norm or give rise to it
- conflict of norms What does general principles of law mean and what are their functions?✔ ✔= principles which are common to various national legal systems and are transfered to int'l legal order function: to fill up the gaps of the conventional or customary law and to evade the non liquet at int'l jurisdictions what is equity?✔ ✔→ ICJ, Art. 38 - to rule ex aequo et bono clauses of judgment in equity: usually in a compromise between parties in a territorial dispute or with respect to issues of resposibility to fill up gaps in law → cannot set aside positive law and rule contra legem
What are conflicts of norms?✔ ✔lex specialis derogat generali - special rule prevails over a general rule lex posterior derogat priori - rule which is later in time has priority What are norms of a higher status?✔ ✔Norms of a higher status - superior principles of IL: peremptory norms = jus cogens norms
- Convention of Vienna on the Law of Treaties, Art. 53: 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 recognized 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."
- applies in general also to customary rules
- fundamental and superior values of international community, public order
- accepted by States, crossing different ideological and political divides
- no reservation as to jus cogens norm is accepted
- Article 103, UN Charter In international law commission example what are contrary acts to jus cogens?✔ ✔→ contrary acts to jus cogens: illegal use of force in violation of the principles of the UN Charter genocide torture piracy, slavery violation of the fundamental principles of IHL execution of acts constitutive of crimes according to IL What are obligations erga omnes ?✔ ✔obligations erga omnes - obligations of a State towards the international community as a whole (unlike obligations vis-à-vis another State deriving from a bilateral treaty on commerce)
→ "all states can be held to have a legal interest in their protection; they are obligations erga omnes" (Barcelona Traction Case, 1970) → procedural aspect What are formal sources?✔ ✔Formal sources = forms of law, process of elaboration of law, techniques that authorize that a rule belongs to the positive law (Art. 38, ICJ Statute) What are material sources?✔ ✔Material sources = sociological foundations of int'l norms, political, moral or economic basis of the norms (expressed by the subjects or doctrine) Why are formal and material sources important?✔ ✔→ the content derives from the material sources, the formal sources provide the formulation and introduction of this content into the positive law → remember the formal sources + be aware of the material sources What are the emergence of new subjects of IL?✔ ✔international recognition of an individual creation and multiplication of international organizations other subjects What does legal personality mean?✔ ✔legal person = direct addressee of international norms = possesses rights and obligations enforceable at law = possesses the capacity to have and to maintain certain rights, and is subject to perform specific duties ← not every actor on the international scene possesses rights and obligations attributed directly by IL Why is the legal person important?✔ ✔in order to maintain and enforce claims to maintain and protect their status
- objective personality (erga omnes) At what moment and under what conditions an entity becomes a State as a subject of IL?✔ ✔State: 4 constitutive elements: 1.defined territory 2.permanent population 3.effective government (factual capacity to submit to its authority all persons subject to its jurisdiction)
- capacity to enter into relations with other States = condition of independence crucial to statehood State is subject to no other sovereignty degree of actual and formal independence necessary ex.: unilateral declaration of independence by Lithuania, 1990 What is a failed state?✔ ✔collapse of governance within a State (loss of control by central authorities, a comprehensive breakdown in order, duration, population - no enforceable political will and means to re-establish the exercise of governmental functions) ex.: Somalia, 1990s not a terra nullius - thesis that a population ("Somali nation") ensures the continuity of the statehood (UN, SC RES 794/1992) Is State qualified as independent if the exercice of certain governmental functions are granted to an external body?✔ ✔International recognition of a State - constitutive element of a statehood/necessary for a State to become a subject of IL? method of accepting certain factual situations and endowing them with legal significance constitutive or declaratory effects? → debate
(satisfaction of factual criteria suffices for a new State to exist as a legal person, recognition only a political confirmation) → at least a strong evidential demonstration significant international recognition, in certain situations, can balance the objective demonstration of adherence to the criteria of statehood (balances the lack of effective control - ex. Kosovo, 2008: during the unilateral declaration of independence some Serb- inhabited areas were not submitted to the control of the central government) minimal recognition cannot deny the statehood if all constitutive elements are assembled What is it mean to be extinction of statehood?✔ ✔merger, absorption, dismemberment/dissolution, (annexation) ex.: disintegration/dismemberment of the Soviet Union → in a form of a transformation of an existing State Russia recognized as a successor (continuation of USSR); States of CIS agreed 1991 - Commonwealth of Independent States ex.: dissolution of the former Socialist Federal Republic of Yougoslavia → State ceased to exist Federal Republic of Y. (former Republics of Serbia and Montenegro) claimed to be the continuation Croatia, Slovenia, and Bosnia and Herzegovina disputed it - themselves new States What are International organizations?✔ ✔- international intergovernmental organization: = forms of cooperation founded on an international agreement usually creating a new legal person having at least one organ with a will of its own, established under international law (Schermers, Blokker, 2003) IO secondary subject that derives from the State's will States delegate or transfer their own powers to IO ← this derives from a factual necessity IO an important player on the international scene crucial forum for States' cooperation
exist and participate actively in the legal sphere What are the problems of absence of legal personality in IO?✔ ✔no privileges and immunities → no legal protection of staff when on mission (only if unilaterally granted) in cases of injury, no capacity to issue claims for damages against States difficulties to cooperate in field with other IOs (ex. OSCE in former Yugoslavia) legal proceedings initiated directly against staff + can obstruct the functioning of the IO no treaty making-capacity of IO → no seat agreements, privileges and immunities Are IO Applicable in relation to non-Members?✔ ✔- universal IO yes (a vast majority of State can create a new international legal person)
- closed IOs - only bilateral relationships based on recognition (express or implicit - conclusion of agreement, diplomatic relations etc.) INDIVIDUAL - What scope of ILP?✔ ✔direct rights under international law (ECHR, 1950; OP to ICCPR, 1966; International Convention on the Elimination of All Forms of Racial Discrimination, 1965 etc.) direct access to international courts and tribunals (ECtHR; individual complaints about violations of the ICCPR by States- First Optional Protocol) direct criminal responsibility under international law (ICC) → derived subject of IL no standing to assert violation of international treaties (protests by a State of nationality) no norm-creating capacity Legal foundation of the international authority to try individuals?✔ ✔← normally individuals under the jurisdiction of their State (of nationality, of residence) ← How to ensure the extradition to international authority?
- international obligation imposed on States
- treaty-based engagement, voluntarily entered into by the States
originally: link via concept of nationality → international protection of an individual via State What are other subject of IL?✔ ✔personality acquired from treaty provisions, recognition and acquiescence by other ILP International Committee of the Red Cross private NGO subject to Swiss law, granted special functions under 1949 Geneva Conventions, capacity to enter into IL agreements (EU, World Food Progr.) The Holy See and the Vatican City "sovereignty of the Holy See in the field of international relations" International public companies ILP may be involved, detailed study if vested with own powers, distances sufficiently from municipal law based on int'l agreement providing for cooperation between governmental and private enterprises technical cooperation (ex.: INTELSAT - intergovernmental structure for a global commercial telecommunications satellite system, 1973) governed, at least partially, by rules not deriving from national laws Transnational corporations/multinational enterprises private business organizations consisting of several legal entities with parent corporations some States sign "delocalized contracts" - not international treaties, private law treaties no standing before an int'l court (arbitration - not primarily IL) regulation on int'l level: codes of conduct (soft law, indirect addressees) → question remains open What are differences of public vs. private IL?✔ ✔Private International Law, including international choice of law, choice of forum, enforcement of judgments - Conflict of laws as a set of procedural rules that determine which legal system and which jurisdiction shall apply to a given situation including foreign element (governs civil and commercial law transactions and disputes that contain international elements)
What are 2 techniques of conflict management?✔ ✔Diplomatic procedures: attempt to resolve the disputes by the parties themselves/with the aid of a third party Adjudication: binding method of a dispute settlement → principles of the free choice of means → compatibility with the sovereign equality of States What are diplomatic procedures?✔ ✔negotiation = discussion between the parties concerned with a view to reconciling/understanding divergent positions precursor for other procedures mediation, good offices = 3rd party involved, to encourage the parties to come to a settlement inquiry = to ascertain precisely the factual matters underlying the dispute conciliation = combines 3rd party investigation of the basis of the dispute + presents a report with suggestions for a settlement (inquiry + mediation)
- reports only non-binding proposals X arbitral award What are good offices?✔ ✔good offices = influence the parties to enter to negotiation (ex. UN SG) [facilitator] facilitator promotes and facilitates contacts between the parties in a conflict, without becoming involved in the matter under negotiation. The facilitator is freely chosen by the parties to a conflict and helps them to: meet on neutral ground exchange views on possible solutions conduct negotiations sign an agreement What is mediation?✔ ✔mediation = active participation in the negotiating process, suggestions for a settlement
most armed conflicts since the end of the Cold War resolved through negotiation and mediation mediator receives a specific mandate from the parties in a conflict; helps them to come together + actively helps them try to find a solution: communicates a solution proposed by one party to the other party negotiates possible solutions between the parties proposes its own solution peace negotiations today are often highly complex → conducted by mediators with considerable experience + assistance by experts Who are the main actors involved in mediation today?✔ ✔United Nations regional organizations - European Union, OSCE, African Union great powers - USA smaller countries - Switzerland, Norway, South Africa non-governmental organizations What is ADJUDICATION?✔ ✔binding method of a dispute settlement arbitration = "settlement of differences between States by judges of their own choice and on the basis of respect for law"(1899, Hague Convention for the Pacific Settlement of Disputes)
- arbitral award is binding for the parties concerned International judicial procedure: settlement of legal differences by a permanent body of judges-professionals, on the basis of international law and within the framework of fixed procedural forms What is the ICJ?✔ ✔INTERNATIONAL COURT OF JUSTICE: one of the main UN organs Statute of the ICJ principal judicial organ of the UN
- legal disputes between States submitted to it by them (contentious cases)
