Table of Contents. 1. Topic & Concept Summaries

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1 Table of Contents Topic and Concept Summaries 1 Sources of International Law 6 Treaties 12 Subjects of International Law 21 Jurisdiction and Immunity 28 The Individual in International Law 35 The Law of Responsibility 36 International Courts and Tribunals 52 Collective Security 58 Use of Force 62 Core characteristics of international law today 1. Topic & Concept Summaries A horizontal (as opposed to some sort of hierarchy) system of sovereign equal states. Territorial integrity. Personification of the state (Hegel). A state are the persons of international law. A positivist system (law is law because it is made by the proper rules and correct processes, in the case of international law because it is made by States). Voluntarist system (ie based on consent). Generally states become bound voluntarily (for example, by becoming party to a treaty) and by participating in customary international law. Universally applicable - We only have one public international law system applying to all states. Sources of International Law Article 38(1) Statute of the International Court of Justice The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: International conventions, whether general or particular, establishing rules expressly recognised by the contesting states; International custom, as evidence of a general practice accepted as law. They actually participate in the practice as acceptance of it. The general principles of law recognised by civilised nations; 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. Treaties: 38(1)(a): Binding (hard law): Treaties, Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Covenants these are all usually treaties and are binding instruments Not Binding (soft law): Declarations, Memoranda of Understanding, Resolutions these are usually non-binding instruments. 1

2 Customary International Law: 38(1)(b), Evidence of a general practice accepted as law 2 required elements: State practice - general practice Opinio juris -the belief of states that this is a legal rule (ie fact plus belief) General Principles of Law: 38(1)(c), The intention is to authorize the Court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States. Estoppel or acquiescence - reliance on representations leading to the party estopped from going back on that representation. States may be prevented on going back on their word Abuse of rights - e,g, the Japan whaling case. They may have had a legal right, but they were abusing it. This was not argued in the case however, as not only was the argument not strong, but it may have not been a good look to argue it. Good faith - found in domestic legal systems Judicial Decisions: 38(1)(d): Decisions of ICJ and its predecessor PCIJ. No doctrine of precedent but judicial consistency is desired. The Lotus Presumption States remain free to act in the absence of any law prohibiting them Acronyms: ILC International Law Commission Part of the UN, set up by the General Assembly. The body responsible for the "codification and progressive development" of international law. ICJ International Court of Justice VCLT Vienna Convention on Law of Treaties UNGA United Nations General Assembly ICCPR- International Convention on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ECHR European Convention of Human Rights OR European Court of Human Rights UNSC United Nations Security Council UNGA United Nations General Assembly Jus cogens- peremptory norm of General International Law. Norms prohibiting: the use or threat of force, aggression, slavery, genocide or apartheid. As well as norms protecting: fundamental human rights, in particular the rules banning racial discrimination or torture as well as the general rules on self-determination, massive pollution of the atmosphere or the seas and possibly fundamental principles of international humanitarian law. NOTE: France disagrees there should be these rules, therefore it is one of the reasons France is not party to the Vienna Convention law of treaties. They are for the idea that states are sovereign. Erga omnes obligations owed to the international community as a whole. It arises where the importance of a right is such that all states can be held to have a legal interest in its protection Opinio juris the belief states have that something is a legal rule Law of Treaties VCLT 1969 Conclusion: Article 7(1): Person carrying out a treaty action usually requires an instrument of full powers to establish authority to represent the State. Article 7(2): Certain individuals are not required to furnish evidence of their authority to represent their State. Article 11: The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Article 24(1): A treaty will enter into force on the terms specified in the treaty. Interpretation: Article 31(1): A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2

3 Application Article 30(3). When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. Amendment: Articles VCLT Invalidity Article 46: If there is a manifest (visible, concrete) violation concerning an internal rule of fundamental importance then a state could invoke this as vitiating its consent to be bound by a treaty. Article 48: Error Article 49: Fraud Article 50: Corruption of a State Representative and Article 51: Coercion of a State Representative Article 52: Coercion of a State by Use of Force Article 53: Conflict with a Peremptory Norm of General International Law Termination Article 54: termination may take place in conformity with the provisions of the treaty or at any time by the consent of all the parties Article 56: where there is no provisions for denunciation or withdrawal, it will only be permissible where it is established the parties intended to admit the possibility or the right to withdraw is implied by the nature of the treaty Article 60: Material breach Article 61: Supervening impossibility of Performance Article 62: Fundamental Change of Circumstances Article 64: Emergence of a new peremptory norm Reservations Article 2(1)(d): whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Article 21(1): Reservations have a reciprocal effect Validity of a reservation: object and purpose test (as found in Article 19(c)) ILC has staked a middle ground; invalid reservations may be subject to severance but a reserving state should have the option of opting out of the treaty altogether if the reservation is severed. Subjects of International Law Criteria of Statehood (Article 1, Montevideo Convention on Rights and Duties of States) A permanent population (no minimum) A defined territory Government e.g. any coherent political structure The capacity to enter into relations with other States Self- Determination ICCPR and ICESCR: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 1(2) UN Charter: one of the purposes of the UN is the development of friendly relations among nations based upon respect for the principle of the equal rights and self-determination of peoples Wide-ranging state practice and opinio juris supporting self-determination as a rule of customary international law of jus cogens status Jurisdiction The Territorial Principle a) subjective application (crimes commenced within the state ) b) objective application (essential constituent element of a crime is consummated on state territory) The Nationality Principle - States have jurisdiction over their own nationals. 3

4 The Protective or Security Principle - Asserted by nearly all states. Jurisdiction can exist over non-nationals, especially in cases of currency, immigration and economic offences The Universality Principle - Where there is universal jurisdiction, a person may be tried and sentenced no matter where the act took place and no matter who they are (unless they have immunity). In cases of piracy, breaches of the laws of war, hijacking of aircraft, traffic in narcotics Immunity State Immunity Prevents the state from being sued/prosecuted in foreign courts. Absolute Immunity: governmental acts Restrictive Immunity: commercial acts Head of State Immunity Heads of State, Heads of government, Foreign ministers, etc still immunity after the person leaves office (but only for official acts carried out while the person was in office and by virtue of State immunity rather than head of State immunity). Diplomatic Immunity Customary international law and Vienna Convention on Diplomatic Relations Embassy is involiable (Article 22(1)) Individual diplomats have immunity from criminal jurisdiction, civil jurisdiction Consular officers have a different role than diplomatic staff, and have less extensive immunity The Individual Today in addition several treaties do provide for individuals to have direct access to international courts and tribunals. First Optional Protocol to the International Covenant on Civil and Political Rights, 1966; European Convention on Human Rights, 1950; European Communities Treaties, 1957; Convention on the Settlement of Investment Disputes, Law of Responsibility ILC Articles Article 1: Every internationally wrongful act of a State entails the international responsibility of that State. Article 2: An act is attributable if it is attributable to the State and constitutes a breach of an international obligation Attribution Article 4: Conduct of organs of a State Article 5: Conduct of persons or entities exercising elements of governmental authority Article 8: Conduct directed or controlled by a State Article 11: Conduct acknowledged and adopted by a State as its own Article 7: Excess of authority or contravention of instructions. Article 10: Conduct of an insurrectional or other movement Breach: Article 12 Circumstances precluding wrongfulness of international illegalities: Article 20: Consent Article 21: Self-defence Article 22: Countermeasures Article 23: Force majeure Article 24: Distress Article 25: Necessity 4

5 Legal consequences of a wrongful act: Article 29: Continued duty of performance of the obligation breached Article 30: Responsible state is under obligation to cease the wrongful act and to offer assurances and guarantees of non-repetition Article 31: Reparation Article 34: Forms of reparation o Article 35: Restitution re-establish the situation that existed prior to the wrongful act if possible and proportionate o Article 36: Compensation covers only financially assessable damage including loss of profit o Article 37: Satisfaction acknowledgement of breach, expression of regret, formal apology Invocation of the Responsibility (a) by an injured State (Article 42) (b) by a State other than an injured State (Article 48): (i) obligations erga omnes partes (ii) obligations erga omnes International Courts and Tribunals Article 33 UN Charter: States shall seek settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, and judicial settlement Article 36: ICJ Jurisdiction Article 65: The advisory jurisdiction of the ICJ Also: Consultation, Negotiation, Inquiry, Good Offices, Mediation and Conciliation Collective Security The UN Security Council Article 23 of the UN Charter: 15 states, with 5 permanent members (Russia, China, France, UK, USA) Article 108: Formal process for altering the UNSC composition Article 24: UNSC is the central mechanism in UN for pursuing the aim of international peace and security Article 25: Members of the UN must comply with the decisions of the UNSC The UN General Assembly Resolution 377: establishes that the GA can step up if the SC fails to perform its duty Use of Force Article 4, principle 2 of the UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Self Defence (Article 51 UN Charter): Necessity and Proportionality Collective Self-defence: Victim state must declare its status as victim and request assistance OR the wrongful act must constitute an armed attack Humanitarian Intervention: questionable status and legitimacy as to its place in international law, R2P doctrine also not distinct ground for intervention. Kuwait UNSC resolution on the basis of use of force Iraq in UNSC resolution & doctrine of revival and self-defence Afghanistan post 2001 Doctrine of self-defence following 9/11 Libya UNSC resolution, query interpretation Situation in Syria no intervention against Assad government action Responses to the Islamic State in the Levant (ISIL): Islamic State of Iraq request and Syria (ISIS) collective self-defence in Iraq Situation in Crimea different set of issues 5

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7 2. Sources of International Law A) Treaties B) Customary international law C) General principles of law D) Judicial Decisions E) The Lotus presumption A,B,C tie in with the concept of consent in International law being a voluntarist system. Article 38(1) Statute of the International Court of Justice The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: International conventions, whether general or particular, establishing rules expressly recognised by the contesting states; International custom, as evidence of a general practice accepted as law. They actually participate in the practice as acceptance of it. The general principles of law recognised by civilised nations; 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. 1) Treaties: Article 38 (1) (a) Binding (hard law): Treaties, Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Covenants these are all usually treaties and are binding instruments Not Binding (soft law): Declarations, Memoranda of Understanding, Resolutions these are usually non-binding instruments. Example: International Whaling Convention Set up in 1946 under this treaty: The International Convention on Whaling. Job of the IWC to regulate whaling. Develops regulations to control the harvesting on whales. Those regulations are found in a schedule to the convention. Preamble - tells us the purpose of the document. Envisaging whaling as an enterprise that will continue. 2) Customary International Law: Article 38 (1) (b) 1. Evidence of a general practice accepted as law 2. 2 required elements: State practice - general practice Opinio juris -the belief of states that this is a legal rule (ie fact plus belief) Foundational part of international law. Extremely important, especially in its early stages where the rule of the legal system are often not written down. As society develops they create legal machinery. In international law, it is a major source of law. Shaw makes a distinction between the two components. The Asylum case, ICJ Reports This case is cited for the threshold needed to prove customary international law. A Peruvian, called Haya de la Torre, seeks asylum at the Colombian Embassy in Peru after he has participated in an unsuccessful rebellion against the Peruvian Government. Colombia grants him diplomatic asylum at its embassy but how will he get from the embassy to outside of Peru? Peru refuses to grant a safe conduct pass to let him leave Peru. Asylum is not granted for individuals who have committed criminal offences. Peru says that Haya de la Torre has committed a criminal offence rather than a political offence Peru says that Peru is entitled to define the offence, and because in Peru s view he is not entitled to asylum from Colombia then Peru can refuse him a safe conduct. Colombia argues that there is a customary rule of international law in Latin America (a regional custom) according to which Colombia, the country granting asylum, is competent to define the offence. Court found that the Columbian Government had not proven the existence of such an alleged regional or local custom. There was no constant and uniform usage. 7

8 Where would you look for evidence of state practice and opinio juris? State practice = any practice of the different branches of government. Legislation, diplomatic correspondence, policy statements, speeches, press releases, official manuals, decisions and practices of the executive government, orders given to the armed forces, digests of State practice. To prove opinio juris, you are looking for the expression of the view that there is a rule of customary international law to this effect North Sea Continental Shelf Cases ICJ Reports Classical reference point on customary international law. High threshold. "Equidistance" principles was applied. Found in the Article 6(2) Geneva Convention of Continental Shelf if the parties cannot agree Germany was not a party to the Convention and is therefore not bound. Denmark and Netherlands claim that the principle of equidistance is part of customary international law, therefore Germany is bound. Court said there was no sufficient evidence of State practice and opinio juris to support finding that there existed a rule of customary international law requiring the application of the equidistance principle. ICJ remarked that state practice: Had to be both extensive and virtually uniform ; Would have to have occurred in a way that showed a general recognition that a rule of law or legal obligation is involved ; and Include that of states whose interests are specially affected. A Persistent Objector is NOT bound by customary law A customary international legal rule is not legally binding on States that have persistently objected during the formation of the rule. The Anglo-Norwegian Fisheries case (UK v Norway) [1951] ICJ Rep 116. Leading Authority for this principle. Difficulty in measuring the fishery zone. Question of determining the baseline of the territorial sea (and beyond that an exclusive fishery zone), normally it is the lower watermark Norway argued it could draw baselines between the islands just of the coast, effectively stretching the fishery zone out more than it would normally be if determining the baseline off the cost UK argued that there is a rule of customary international law regarding baselines. If you want to draw a straight baseline, you can do so only if it is a bay of less than 10 miles across Norway insisted they had always been a persistent objector. Court said yes; they had been doing it their own way for 60 years and had been tolerated by other states. Participating States: Shaw (p.76): for a custom to be accepted and recognized it must have the concurrence of the major players in that particular field. Charles De Visscher, (Theory and Reality, 1953): among the users are always some who mark the soil more deeply with their footprints. Duration: for a new rule it may be sufficient if states act in a certain way with the belief this is in accordance with a new rule that is coming into being. This counts as opinio juris. Treaties and Custom International Law operate concurrently Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America)[1986] ICJ Rep 14. Good example of how different sources of international law operate concurrently. Dispute over US support of the contras in Nicaragua (the contras opposed the Socialist Sandinista military junta that had overthrown the elected President Samoza in 1979). Nicaragua alleged breach of Article 2(4) of the UN Charter (prohibition of the use of force) by the US. The US reservation to its acceptance of the Court s jurisdiction under Article 36(2) of the ICJ Statute means the Court has no jurisdiction to consider Nicaragua s allegations against the US under Article 2(4) of the UN Charter, i.e. under treaty. The Court therefore relied upon customary international law rules to exercise its jurisdiction under the US optional clause declaration. The ICJ held that the United States had breached customary international law obligation not to use force against another State, and that the US action did not satisfy the criteria required for an argument of self defence to succeed under customary international law. 8

9 Relying on justifications within the rule to deny the rule: If a state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State s conduct is in fact justifiable on that basis, the significance of the attitude is to confirm rather than weaken the rule. Does treaty prove state practice? No, however the treaty, and acts consistent with the treaty, could constitute some of the evidence of state practice and opinio juris that together with other elements might be used to establish the existence of a customary law rule. ICJ took account of certain treaties including the UN Charter and the Organization of American States as additional evidence of a general practice accepted as law. Courts can also look at non-binding international instruments such as declarations or resolution. Persuasive as to the belief of the state. Court here looked at attitudes to UNGA resolutions and other resolutions the US had supported. Jurisdiction: Article 36 ICJ Statute (1) All states that are party to the statute are under the jurisdiction of this statute (2) Optional clause declaration. Idea that it was hoped they would see a network of declaration of states accepting the jurisdiction of the court. This is the closest they can get to a system of compulsory jurisdiction In the Nicaragua case there was an optional clause, but it did not accept jurisdiction for disputes involving multilateral treaties. The United States acceptance of the Court s compulsory jurisdiction does not extend to: disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court. What effect does a breach have on a rule? E.g. If there is a customary international legal rule of non-intervention and the US has acted inconsistently by intervening in Iraq, what effect might that have on the customary international law rule? Nicaragua case: it is not to be expected that in the practice of states the application of the rules in question should have been perfect. (para 186) We would not expect one incident of any one state to have the result that everyone consider there is no rule; the rule is likely to survive. A breach does not destroy a rule. That is especially clear when the state that is in breach is trying to argue exception to the rule (e.g. self-defense) The Grundnorm of international law? The peak of positivism is sometimes identified with the work of Hans Kelsen The Pure Theory of Law (1934) 50 LQR 474 and LQR 517. In Kelsen s pure theory, rules or norms depending on a prior norm for their legal validity. In international law, Kelsen saw the basic norm or grundnorm as the rule that says that customary international law is a source of law. States ought to behave as they [have] customarily behaved From customary international law we get the important rule that treaties must be observed, pacta sunt servanda. 3) General Principles of Law: Article 38 (1) (c) Much less common than the other 2 sources. When the UN charter was negotiated there were different views Differences of views among the committee of jurists who prepared the Statute of the ICJ Belgian jurist, Baron Descamps, had natural law concepts in mind: the rules of international law recognized by the legal conscience of civilized peoples. Joint proposal by Elihu Root (former US Secretary of State) and Lord Phillimore (British maritime jurist) was accepted. Root and Phillimore regarded the principles in terms of rules accepted in the domestic/national systems of law of all civilized states. Oppenheim (Jewish immigrant and British writer): The intention is to authorize the Court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States. Eg: 1. Estoppel or acquiescence - reliance on representations leading to the party estopped from going back on that representation. States may be prevented on going back on their word 2. Abuse of rights - e,g, the Japan whaling case. They may have had a legal right, but they were abusing it. This was not argued in the case however, as not only was the argument not strong, but it may have not been a good look to argue it. 3. Good faith - found in domestic legal systems 4. Circumstantial evidence - also found in domestic legal systems 4) Judicial Decisions: Article 38 (1) (d) 9

10 Decisions of the International Court of Justice, ICJ and its predecessor, the Permanent Court of International Justice ( ): no doctrine of precedent, but strives nevertheless to maintain judicial consistency. There is no doctrine of precedent in international law in general. Therefore this is simply to be referred to. Together with the teachings of the most highly qualified publicists judicial decisions are a subsidiary means for determining content of law. Courts generally aim for consistency. Writings of publicists: Article 38 (1) (d) Article 38(1)(d) has been played very softly. The International Court has not referred to writings of any publicists and will only refer generally to doctrines found in current writings. Except in separate and dissenting opinions. Unilateral Acts Unilateral acts are considered a potentially binding source of international law, though are rare. But unlike treaties, they are one-sided acts or announcements rather than an agreement between two or more parties. Nuclear Tests cases (Australia v France) (New Zealand v France) (Jurisdiction) [1974] ICJ Rep 457. Leading Case that helped establish the doctrine. Testing weapons in the airspace. Proceedings were taken to ICJ in the 1970s by Australia and NZ In the lead up, France had made public statements to the effect that atmospheric testing was about to cease: the remaining test/s would normalement constitute the last in the series. Accordingly, the court found that there was NO legal dispute between the parties and declined to hear the case Endorsed the idea of a unilateral act or announcement with the intention to be bound could be binding upon a state General Act for the Pacific Settlement of Disputes basis of jurisdiction saying that proceedings must be taken to the ICJ 1990s - After this time France conducted underground nuclear testing. It was known that France had withdrawn from the general Act, therefore NZ could not rely on it to institute new proceedings in regards to the underground nuclear testing. Therefore the case from the 1970s was attempted to be reopened. Court did not allow this essentially between the two issues. After this the International Law Commission, as the body responsible for the "codification and progressive development" of international law, looked at unilateral acts. It carries this out as part of the function of the UN. The General Assembly set this up to carry out this aspect of UN work. It is a mixed task and sometimes the ILC produces a document that is a mix of codification of existing law, and new thinking of where the law should go. Report of the International Law Commission: Guiding principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. Soft Law Soft law is non-binding. Examples take the form of Declarations and other instruments: Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Recommended by Economic and Social Council Resolution 1989/65 of 24 May 1989 or UN Declaration on the Elimination of Violence against Women, GA Res 48/104, A/RES/48/104 (1993) Soft law principles are "probationary candidates" 5) The Lotus Presumption States remain free to act in the absence of any law prohibiting them. Derives its name from Permanent Court of International Justice. The Lotus case, SS Lotus Case (France v Turkey) PCIJ Ser A (1927) No 9 (Permanent Court of International Justice ) A collision on the high seas between French steamer, the Lotus, and a Turkish steamer, Boz-Kourt at a Turkish port French officer on watch, Lieutenant Demons, arrested 10