Master Programme in European Law (LL.M.)

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1 Master Programme in European Law (LL.M.) 1 st semester Winter term 2009/2010 Module IV: Module Coordinator: Course title: Scholar: Introduction to Public International Law Trinity College Dublin Legal Foundations of Public International Law II Prof. Dr. Cedric Ryngaert, Universiteit Leuven This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of Prof. Ryngaert and can under no circumstances be regarded as reflecting the position of the European Union.

2 READER China EU School of Law Module IV Introduction to Public International Law Course: Legal Foundations of Public International Law II November 2009 Prof. Dr. Cedric Ryngaert Leuven University (Belgium) 1. Syllabus In Legal Foundations of Public International Law II, the basic public international law categories, except for the sources and the subjects, will be discussed. In this course, ample use will be made of primary documents (listed under sources ). The lecturer welcomes participation by the students. The following principles and fields of public international law will be addressed: - jurisdiction and immunities - law of the sea - state responsibility - diplomatic protection and human rights - use of force - international humanitarian law - dispute settlement - international criminal law and tribunals The exam is an open book exam, which means that students can take every written or copied document to the exam. The written documents that are provided by the lecturer, in combination with the notes taken by the student will enable the student to pass. Students need not take other materials to the exam (although they are not prohibited from doing so). The exam will primarily consist of cases. 2. Sources 1. United Nations Convention on Jurisdictional Immunities of States and their Property (2004) (12 pp.), available at 2. Vienna Convention on Diplomatic Relations (1961) (16 pp.), available at

3 3. United Nations Convention on the Law of the Sea (1982), Part II (Articles 2-33) (ca. 10 pp.), available at 4. ILC Articles on State Responsibility (15 pp.), available at 5. Statute of the International Court of Justice (ca. 10 pp.), available at 6. Statute of the International Criminal Court, Articles 1-33 (ca. 20 pp.), available at 3. Slides 1. jurisdiction and immunities (Wednesday 18 Nov. 2009, 9 am - 12 am) 2. law of the sea (Wednesday 18 Nov. 2009, 9 am - 12 am) 3. state responsibility (Thursday 19 Nov. 2009, 2 pm 4 pm) 4. diplomatic protection and human rights (Thursday 19 Nov. 2009, 9 am 12 am) 5. use of force (Thursday 19 Nov. 2009, 9 am 12 am) 6. international humanitarian law (Thursday 19 Nov. 2009, 9 am 12 am) 7. dispute settlement (Friday 20 Nov. 2009, 9 am 12 am) 8. international criminal tribunals (Friday 20 Nov. 2009, 9 am 12 am)

4 JURISDICTION Dr. Cedric Ryngaert - Prescriptive - Adjudicatory - Enforcement Territorial v. extraterritorial jurisdiction - P.C.I.J., Lotus, Customary law: specific grounds of jurisdiction? - Principle of non-intervention Criminal jurisdiction (1) 1. territoriality principle objective territoriality subjective territoriality 2. personality principle active personality * non-extradition nationals passive personality * controversial

5 Criminal jurisdiction (2) 3. protective principle 4. universality principle treaty-based / customary law aut dedere aut judicare in absentia U.S. v. Europe Immunities 3 important exceptions to jurisdiction State immunity Diplomatic immunity Immunity of international organizations and their staff Immunity: concepts 1. Immunity of jurisdiction of enforcement 2. Inviolability Duty of protection Prohibition of enforcement measures 3. Privileges 4. Waiver of immunity

6 State immunity Customary international law UN Convention on Jurisdictional lmmunities of States (2004) Par in parem non habet imperium Acta jure imperii acta jure gestionis Immunity of foreign officials Immunity ratione personae Immunity ratione materiae Immunities and international crimes (ICJ, Arrest Warrant) Diplomatic immunities (1) Diplomatic relations: Vienna Convention 1961 Consular relations: Vienna Convention 1963 Almost always respected ICJ, Hostages case 1980

7 Diplomatic immunities (2) Almost total immunity for diplomats Arrest/detention Criminal jurisdiction Civil/administrative jurisdiction but exceptions Inviolability embassy, private residence, diplomatic bag Less immunity for consular officials

8 International Law Law of the Sea the OCEAN, that expanse of water which antiquity describes as the immense, the infinite, bounded only by the heavens, parent of all things; [..] the ocean which, although surrounding this earth, the home of the human race, with the ebb and flow of its tides, can be neither seized nor inclosed; nay, which rather possesses the earth than is by it possessed. - Hugo de Groot, Mare Liberum 1609 Freedom of the seas Hugo de Groot, Mare Liberum (1609): No state can claim sovereignty over any part of the seas. Open to free and unlimited use. (Written to vindicate the claims of the Dutch East Asia Company) Exception: territorial sea (3 nautical miles)

9 Uses of the oceans? Uses of the Oceans Fisheries Mining Activities (oil, gas) Surface minerals (sand, gravel, shells) Artificial islands, installations and structures Production of energy from water, currents and wind Shipping Overflight Cables and pipelines Marine scientific research Military activities Recreation Land reclamation Nature protection Pollution Piracy

10 Codification of the law of the sea UNCLOS I (1958): 4 Geneva Conventions UNCLOS II (1960) UNCLOS III ( ): 1982 United Nations Convention on the Law of the Sea (in force 1994) Status of ratifications UNCLOS U.S. opposition Interview with Ed Meese: oa6o4 (Part IX UNCLOS)

11 Jurisdictional zones Baselines Bron: E. Meltzer, Canada (

12 Which states benefit most from EEZ? State Area of EEZ (sq. nm) 1. USA 2,831, France 2,083, Indonesia 1,577, New Zealand 1,409, Australia 1,310, Kiribati 770, Papua New Guinea 690,000 All States: (Source: Churchill and Lowe, The Law of the Sea, 1999) 37,745,000 Continental shelf beyond 200 nm Bron: V. Prescott and C. Schofield: The Maritime Political Boundaries of the World (2005) Fisheries (1) in a way it can be maintained that fish are exhaustible (Grotius, 1609) Cod in New Foundland:

13 Fisheries (2) 1982 LOS Convention TS: Artt. 2, 19(2)(i) EEZ: Artt. 56, HS: Artt. 87, General: Art Fish Stocks Agreement Ecosystem approach Precautionary approach Enforcement (Art. 21) Regional Fisheries Management Organizations Case The Pro Choice is a Dutch ship which has a mobile clinic on board in which abortions could be performed. This ship is sent to State X, where abortion is illegal. Do you think State X could prohibit it from entering: its ports its territorial sea its contiguous zone its exclusive economic zone citing the protection of public order and public health?

14 Air law (1) Chicago Convention on International Civil Aviation 1944 sovereignty over airspace Vertical delimitation of airspace: unclear Air law (2) Violations of airspace: consequences Government aircraft Commercial aircraft (Art. 3bis Chicago Convention) Jurisdiction over aircraft (1963 Convention) Article 3: registration Article 4: exceptions Space law (1) Many UN resolutions Freedom of space No appropriation International responsibility Cooperation helping astronauts Jurisdiction based on registration

15 Space law (2) Outer Space Treaty 1967 Same principles No WMD in cosmic space Demilitarization moon and other celestial bodies Agreement on the rescue and return of astronauts and space objects 1968 Convention on International Liability 1972

16 STATE RESPONSIBILITY Articles on State responsibility, ILC, 2001 Customary international law Elements STATE RESPONSIBILITY: ATTRIBUTABILITY Organs of a State Persons exercising governmental authority Organs placed at the disposal of a State Direction/control Absence/default Insurrectional movement Acknowledgement/acceptance STATE RESPONSIBILITY: CIRCUMSTANCES PRECLUDING WRONGFULNESS Consent Self-defence Countermeasures Force majeure Distress Necessity 1

17 REPARATION Restitution Compensation Satisfaction COUNTERMEASURES See Art ILC Articles 2

18 DIPLOMATIC PROTECTION (1) ILC Draft Articles 2006 Right of the State No entitlement of the individual Calvo-clause DIPLOMATIC PROTECTION (2) Nationality of the claim Local remedies rule Compensation State TREATMENT OF ALIENS (1) International minimum standard v. national treatment Host States: national treatment (Calvo( Calvo) Home States: international minimum standard Treatment of persons (human rights) Treatment of property (expropriation) 1

19 TREATMENT OF ALIENS (2) Home States viewpoint: 1. Public purpose 2. Non-discriminatory 3. Prompt, adequate and effective compensation Declaration on permanent sovereignty over natural resources, Res UNGA (1962) TREATMENT OF ALIENS (3) Host States viewpoint: 1. No public purpose 2. Taking into account all circumstances 3. Dispute settlement by national courts Charter of Economic Rights and Duties of States, Res UNGA (1974) TREATMENT OF ALIENS (4) Nowadays: Bilateral investment treaties Lump sum agreements Special economic zones E.g., Iran 2

20 HUMAN RIGHTS There can be no issue of more pressing concern to international law than to protect the life of every human being if international law is unable to fulfill this then for what does it exist? (B. Ramcharan) HUMAN RIGHTS ILO, 1919 reserved domain? Art. 2 (7) v. art. 1 (3) UN Charter Universal Declaration of Human Rights 1948 HUMAN RIGHTS TREATIES (1) 1. Genocide Convention 2. Convention against Racial Discrimination 3. ICCPR 4. ECOSOC 5. Convention against Discrimination of Women 3

21 HUMAN RIGHTS TREATIES (2) 6. UN Torture Convention 7. Convention on the Rights of the Child 8. European Convention on Human Rights 9. American Convention on Human Rights 10. African Charter on Human and Peoples Rights Restrictions Restrictions possible Non-derogable human rights 4

22 Implementation and supervision 1. Reporting 2. State complaints 3. Individual complaints 4. inquiries by committees 5. Office of the High Commissioner for Human Rights 6. Human Rights Council 5

23 USE OF FORCE Legal sources Article 2(4) UN Charter Article 51 UN Charter GA Friendly Relations Declaration 1970 Caroline incident, 1837 Canada v. U.S. legality of pre-emptive emptive strike

24 Iraq 2003 Legality of U.S./UK invasion of Iraq? SC Res. 678, 687, 1441 Pre-emptive emptive use of force Humanitarian intervention Iran, 2008? Humanitarian intervention (1) Operation Provide Comfort, Iraqi Kurdistan 1991 Operation Restore Hope, Somalia 1992

25 Humanitarian intervention (2) NATO, Kosovo 1999 Darfur??? Humanitarian intervention (3) Responsibility to protect International Commission on Intervention and State Sovereignty, Kofi Annan, In larger freedom, 2004: As to genocide, ethnic cleansing and other such crimes against humanity, are they not also threats to international peace and security, against which humanity should be able to look to the Security Council for protection? (para. 125) Regional arrangements Chapter VIII UN Charter Sierra Leone : 98: OAS/ECOWAS v. UNSC ECOWAS invasion pact,, 1999

26 Ethiopian intervention in Somalia, 2006 Illegal use of force? Consent civil strife Swiss Army invading Liechtenstein, March 1, Swiss infantry soldiers wandering 2 km across Liechtenstein border Violation of international law? NATO, Afghanistan 2001: did international law authorize the use of force?

27 Reprisals or countermeasures Articles DASR Not: use of force! (Friendly Relations Declaration, Art. 50 DASR) Retorsions UN Security Council Chapter VI v. Chapter VII UN Charter Aggression, threat to the peace, breach of the peace Art. 39 Measures: Art. 41 v. 42 Troops: Art. 43 UN General Assembly General Assembly, Uniting for Peace Resolution 1950 Korean War 1950 Hungary 1956 Suez 1956 Afghanistan 1980 Israeli security fence 2003

28 UN peacekeeping (1) Congo Eritrea UN peacekeeping (2) Consent of the host State required: UN and host State develop rules of engagement First mission: Israel 1948 ICJ, Certain Expenses,, 1949 Cost in fiscal year : 2006: 5.03 billion USD Nobel Peace Prize 1988 UN peacekeeping failures Srebrenica 1995 Rwanda 1994

29 UN peacekeeping: top-10 of contributing countries 1. Bangladesh 10, Pakistan 9, India 9, Nepal 3, Jordan 21. Poland United States 393 PEACE peacemaking peacekeeping peaceenforcement peacebuilding

30 JUS IN BELLO INTERNATIONAL HUMANITARIAN LAW HAGUE LAW 1899/1907 Hague Conferences and Conventions Biological Weapons Convention 1972 Convention on Conventional Weapons 1980 Chemical Weapons Convention 1993 Mine Ban Treaty 1997 Chemical Weapons Convention (1) Phase I II III IV Reduction Deadline 1 pct. April pct. April pct. April pct. April

31 Chemical Weapons Convention (2) Current progress: as of : 3% of Class 1, at least 52% of Class 2 and all Class 3 declared chemicals had been destroyed Forecast 100 pct. destruction Russia: 2027 U.S.: 2014/2023 OPCW Verification Mine Ban Treaty, Ottawa 1997 (1) States Parties to the Mine Ban Treaty Mine Ban Treaty, Ottawa 1997 (2) Estimation May 2006: 160 million landmines Demining: million USD per km² 2

32 Cluster bombs cf. Convention on Cluster Munitions (2008) Nuclear weapons Non-Proliferation Treaty 1968 SALT, START Strategic Offensive Reductions Treaty 2002 ABM ( ) 2002) Star Wars 1980s U.S. withdraws in 2001 ICJ, advisory opinion Nuclear Weapons,, 1996 No international law expressly prohibiting or authorizing Generally contrary to IL, except possibly in self-defence 3

33 Geneva law 1949 Geneva Conventions I-IVI IV 1977 Additional Protocols I-III II Common Article 3 Geneva Conventions Convention for the Protection of Cultural Property 1954 Principles of Geneva law 1. Distinction combatants civilians 2. Principle of limited warfare (The Hague) No unnecessary suffering Protect the environment 3. Due process guarantees 4. Rights POW s and civilians in occupied zones 5. Do not attack the enemy who surrenders 6. Protection of persons hors-combat 7. Care for the wounded and sick ICJ, Advisory Opinion, Construction of a Wall in the Occupied Palestinian Territory,

34 Repression of violations of IHL: individual criminal responsibility Domestic trials (e.g.( e.g.,, universal jurisdiction) Nuremberg, Tokyo ICTY, ICTR ICC Sierra Leone Cambodia 5

35 DISPUTE SETTLEMENT Basic principle UN Charter: peaceful settlement of disputes Chapter VI UNC Art. 2(4) UNC Diplomatic methods (1) 1. Negotiations North Sea Continental Shelf: : meaningful negotiations Sometimes specific treaty obligations, eg, Art. 283 UNCLOS Diplomatic methods (2) 2. Good offices Third party Passive role: go-between 3. Mediation More active role of third party Good offices mediation 1

36 Diplomatic methods (3) 4. Fact-finding - Inquiry - Report - Sometimes recommendations 5. Conciliation - Commission: inquiry + conciliation proposal Judicial methods (1) Binding! 1. ARBITRATION International v. commercial Advantages Arbitral tribunals: Ad hoc: Iran U.S. Claims Tribunal Permanent Court of Arbitration ICSID 1965 Judicial methods (2) 2. COURTS Proliferation: (a) International (b) Regional 2

37 INTERNATIONAL COURT OF JUSTICE (1) ICJ (2) 15 judges ad hoc judges No compulsory jurisdiction 1. optional clause 2. compromissory clause 3. compromis 4. forum prorogatum No constitutional court ICJ (3) Procedure: Written + oral Preliminary exceptions Provisional measures Sanctions in case of non-execution 3

38 Exercise optional clause t0: State X accepts the jurisdiction of the ICJ without appending a reservation/condition t1: State Y accepts the jurisdiction of the ICJ, but appends a reservation: I do not accept the ICJ s jurisdiction over matters relating to the legality of the use of force. t2: State Y seizes the ICJ and states that X has funded rebels who carried out attacks on Y s soil does ICJ have jurisdiction? 4

39 Repression of crimes against international humanitarian law Generally: States have the duty to repress IHL crimes Ad hoc tribunals Nuremberg/Tokyo Ad hoc tribunals Yugoslavia (1993) and Rwanda (1994) International Criminal Court ICC Multilateral treaty (not Ch. VII UN Security Council) What crimes? What persons/what territory? Temporal limitation Complementarity principle Role of the UN Security Council Self-referrals DRC, Uganda, CAR, Sudan 2/hi/africa/ st m Arrest warrants Peace v. justice ICC practice

40 Sierra Leone East Timor Cambodia Hybrid tribunals