I SPECIAL NATURE OF INTERNATIONAL LAW 1. Is it law ? 2. Implementation ? 3. What about enforcement ? 4. Who is the legislator ? Differs obviously from.

I SPECIAL NATURE OF I SPECIAL NATURE OF INTERNATIONAL LAWINTERNATIONAL LAW

1.1. Is it law ?Is it law ?

2.2. Implementation ?Implementation ?

3.3. What about enforcement ?What about enforcement ?

4.4. Who is the legislator ?Who is the legislator ?

Differs obviously from national legal Differs obviously from national legal systems by nature systems by nature

DEFINITIONDEFINITION

A system of rules and principles, A system of rules and principles, which is applied in relations which is applied in relations between sovereign states and between sovereign states and international organisations like the international organisations like the UNUN

The rules created by states in The rules created by states in the relations between themthe relations between them

It is in the interest of states to establish and It is in the interest of states to establish and keep up a legally organized international keep up a legally organized international systemsystem

The rules of international law cover nearly The rules of international law cover nearly

all areas of international activity: law of the all areas of international activity: law of the sea, space law, telecommunications, postal sea, space law, telecommunications, postal services, carrying of goods and passangers, services, carrying of goods and passangers, money transfer, trade, warfare, human money transfer, trade, warfare, human rights, nationality, extradition, expulsion rights, nationality, extradition, expulsion and extradition, security of states, use of and extradition, security of states, use of force etc.force etc.

In fact very little happens in international In fact very little happens in international affairs, which would not be regulated by affairs, which would not be regulated by international law international law

PUBLIC AND PRIVATEPUBLIC AND PRIVATE

The interdependency of states The interdependency of states presupposes a well functioning presupposes a well functioning international systeminternational system

Public International law: between Public International law: between statesstates

Private International law: between Private International law: between private entitiesprivate entities

As a result of political choice in favour As a result of political choice in favour of private the public and private are of private the public and private are rapidly intertwining both in national rapidly intertwining both in national and international legal systemsand international legal systems

INTERNATIONAL LAW: INTERNATIONAL LAW: WHAT ELSE ?WHAT ELSE ?

International law only one International law only one regulator /gentle civilizerregulator /gentle civilizer

DiplomacyDiplomacy PoliticsPolitics EconomyEconomy CitizensCitizens International organisationsInternational organisations All these form together the basis All these form together the basis

for states’ decision-making for states’ decision-making concerning international affairsconcerning international affairs

Is it valid if it is violated ?Is it valid if it is violated ?

Like everyone acting within a legal Like everyone acting within a legal framework, states may decide to violate framework, states may decide to violate the rules of international law: this does the rules of international law: this does not bring an end to a norm violatednot bring an end to a norm violated

However, if state practise emerges, the However, if state practise emerges, the norm may change: states seldomly norm may change: states seldomly claim their wrondoings constituting a claim their wrondoings constituting a state practise supported by sufficient state practise supported by sufficient opinio jurisopinio juris

INTERNATIONAL RULES AS A INTERNATIONAL RULES AS A LEGAL SYSTEMLEGAL SYSTEM

- International community (states, IOs) International community (states, IOs) recognise the existence of the system of recognise the existence of the system of international law and its’ binding natureinternational law and its’ binding nature

- States do not admit that they would have States do not admit that they would have violated IL(international law), but explain violated IL(international law), but explain to have acted in accordanceto have acted in accordance

- States believe that such a system existsStates believe that such a system exists- Example US invasion of Grenada: most Example US invasion of Grenada: most

states condemned not only immoral but states condemned not only immoral but illegal (also Iraqi invasion to Kuwait)illegal (also Iraqi invasion to Kuwait)

INTERNATIONAL RULES AS A INTERNATIONAL RULES AS A LEGAL SYSTEMLEGAL SYSTEM

- Vacuums in the system or its’ Vacuums in the system or its’ inefficiency do not as such make it inefficiency do not as such make it invalidinvalid

- It’s sui generis nature does not It’s sui generis nature does not nullify its’ legal naturenullify its’ legal nature

LEGALLY BINDING LEGALLY BINDING INTERNATIONAL LAWINTERNATIONAL LAW

a)a) Foreign ministries, national and Foreign ministries, national and international courts and IO’s apply it on a international courts and IO’s apply it on a daily basisdaily basis

- legal departments giving legal advice on legal departments giving legal advice on the application of international lawthe application of international law

- use of legal concepts and languageuse of legal concepts and language- states consider to be bound to act on a states consider to be bound to act on a

certain manner and from time to time certain manner and from time to time consider some other state not to act in consider some other state not to act in confirmityconfirmity

- International Court of Justice submits legal International Court of Justice submits legal judgmentsjudgments


b) States do not claim to be above b) States do not claim to be above international law nor that they international law nor that they would be bound by itwould be bound by it

- example: Iraqi invasion to Kuwait, example: Iraqi invasion to Kuwait, Soviet occupation of EstoniaSoviet occupation of Estonia

- States do follow INTL because they States do follow INTL because they consider to be obliged legally, consider to be obliged legally, otherwise there would not be any otherwise there would not be any need to find kegal reasoning for need to find kegal reasoning for their actstheir acts


c) INTL rules are followed systematically c) INTL rules are followed systematically in state practisein state practise

- violations tend to crowd the violations tend to crowd the international publicity rather than the international publicity rather than the routine everyday practise, illusion of routine everyday practise, illusion of inefficiency although it is a question of inefficiency although it is a question of deviating from the normal – an deviating from the normal – an exceptionexception

- national legal systems have similar national legal systems have similar inefficiencies – canot totally prevent inefficiencies – canot totally prevent crimes or violations of lawcrimes or violations of law

- most of the rules of international are most of the rules of international are followed for the most of the timefollowed for the most of the time


-d) In all legal systems there is established a -d) In all legal systems there is established a system for solution of disputes concerning system for solution of disputes concerning points of law and factspoints of law and facts

- also in INTLalso in INTL- in this regard INTL is organised more in this regard INTL is organised more

looselyloosely- legal bodies for the purposes international legal bodies for the purposes international

disputes: ICJ, international arbitration, war disputes: ICJ, international arbitration, war crimes tribunals (Yugoslavia, Rwanda, ICC), crimes tribunals (Yugoslavia, Rwanda, ICC), WTOWTO

- regional: ECHR, ECJ, ACHR, AfricanCHRregional: ECHR, ECJ, ACHR, AfricanCHR

ENFORCEMENT OF INTLENFORCEMENT OF INTL

- IS IT law if not compulsory system of IS IT law if not compulsory system of enforcement ?enforcement ?

- example: Kuwait , rather peace example: Kuwait , rather peace enforcement than formal enforcement enforcement than formal enforcement of INTL law with compulsory measuresof INTL law with compulsory measures

- the validity of INTL is related rather to the validity of INTL is related rather to how it has been estalished and to how it how it has been estalished and to how it functions than to compulsionfunctions than to compulsion

- Compulsion may be the reason to follow Compulsion may be the reason to follow law but not the reason for its validity as law but not the reason for its validity as a lawa law

- The point: it is essential that the system The point: it is essential that the system within which legal norms are within which legal norms are established is commonly acceptedestablished is commonly accepted


a)a) UN Security CouncilUN Security Council- may take enforcement measures against may take enforcement measures against

a state, if it threatens peace or have a state, if it threatens peace or have committed an act of aggression or breach committed an act of aggression or breach of the peace (UN Charter, art. 39 and ch. of the peace (UN Charter, art. 39 and ch. VII)VII)

- precondition: a resolution for that purpose precondition: a resolution for that purpose is made by the UN security Councilis made by the UN security Council

- Five permanent members (USA, Russia, Five permanent members (USA, Russia, China, France, UK) veto right, earlier China, France, UK) veto right, earlier hindered resolutions on the use of hindered resolutions on the use of sanctions, now ”new world order”sanctions, now ”new world order”


May be:May be:- military action; Korea 1950, Iraq military action; Korea 1950, Iraq

1990/91, Kosovo ?1990/91, Kosovo ?- economic sanction; South-Africa economic sanction; South-Africa

1977, Serbia-Montenegro 19921977, Serbia-Montenegro 1992- diplomatic, political social diplomatic, political social

measure; Delimitation of air-routes measure; Delimitation of air-routes for Libyan airplanes after Lockerbie for Libyan airplanes after Lockerbie bomb 1992/93bomb 1992/93


UN SC resolutions have been applied to UN SC resolutions have been applied to various situations:various situations:

- Iraqi invasio to KuwaitIraqi invasio to Kuwait- Dissolution wars of JugoslaviaDissolution wars of Jugoslavia- Civil war in SomaliaCivil war in Somalia- Libyan involvement to air-flight terrorismLibyan involvement to air-flight terrorismONLY IF: the issue is about breaching ONLY IF: the issue is about breaching

peace, threat to peace or aggressionpeace, threat to peace or aggressionUN SC is not dealing with general violations UN SC is not dealing with general violations

of INTL: only the most seariest situations of INTL: only the most seariest situations


b) Violation of legal rightsb) Violation of legal rights

- example: a state A violates a trade - example: a state A violates a trade agreement with state Bagreement with state B

- - B may have a right to end the - B may have a right to end the agreementagreement

- cutting off diplomatic relationscutting off diplomatic relations- delimiting economic assistancedelimiting economic assistance- end other trade agreementsend other trade agreements- proportionalityproportionality


Examples: UK cut off diplomatic relations to Examples: UK cut off diplomatic relations to Argentina after it occupied Argentina after it occupied Falkland/Malvinas Islands, USA freezed the Falkland/Malvinas Islands, USA freezed the assets of Iran placed in US Banks during assets of Iran placed in US Banks during 1979/80 hostage crisis1979/80 hostage crisis

- even even international communityinternational community or a larger or a larger group of states may adhere to similar group of states may adhere to similar measuresmeasures

- loosing economic rights may have even a loosing economic rights may have even a deeper impact than the use of force, since deeper impact than the use of force, since in a globalised world economy states are in a globalised world economy states are extremely dependent on each otherextremely dependent on each other


c) Legal enforcementc) Legal enforcement- International Court of Justice (ICJ): a court of International Court of Justice (ICJ): a court of

law of the UNlaw of the UN- A state cannot be compelled to become a A state cannot be compelled to become a

party in a case before the ICJparty in a case before the ICJ- part of the States have recognised the part of the States have recognised the

compulsory jurisdiction of the ICJcompulsory jurisdiction of the ICJ- others decide case by case whether they others decide case by case whether they

agree to become a party to the proceedingsagree to become a party to the proceedings- if they agree to ICJ jurisdiction its’ judgment is if they agree to ICJ jurisdiction its’ judgment is

legally binding legally binding - ICJ does not have any enforcement measures ICJ does not have any enforcement measures

of its ownof its own


- ICJ could (in theory) use enforcement ICJ could (in theory) use enforcement through UN SC, but this has never taken through UN SC, but this has never taken place with successplace with success

- if UN SC would be used theenforcement is if UN SC would be used theenforcement is limited to matters within the powers of the limited to matters within the powers of the SCSC

- possible only in a case that is already under possible only in a case that is already under consideration before the ICJconsideration before the ICJ

- Lockerbie case 1992: the supremacy of the Lockerbie case 1992: the supremacy of the UN SCUN SC


- the use of international special the use of international special courts have increased (Iran-US courts have increased (Iran-US claims tribunal, Bosnia, Rwanda claims tribunal, Bosnia, Rwanda war crimes tribunals)war crimes tribunals)

- also domestic courts apply also domestic courts apply international law in cases involving international law in cases involving international dimensioninternational dimension

II SUBJECTS OF INTLII SUBJECTS OF INTL

- Not self-evident: who may be the Not self-evident: who may be the subject of international rights and dutiessubject of international rights and duties

- ””Subjecthood”: procedural rights and Subjecthood”: procedural rights and obligations; ability to make international obligations; ability to make international claims before int. judicial tribunals and claims before int. judicial tribunals and the obligation to answer to such claimsthe obligation to answer to such claims

- ability to make treaties, participate in ability to make treaties, participate in multinational events, accountability, multinational events, accountability, immunity, be part of INTL creation, etc.immunity, be part of INTL creation, etc.

- The recognition or acceptance of states The recognition or acceptance of states is important: bilateral and multilateral is important: bilateral and multilateral effectseffects

StatesStates

- most important subjectsmost important subjects- accepted statehood brings the accepted statehood brings the

capacity to act internationally as a capacity to act internationally as a statestate

- territory, sovereignty, permanent territory, sovereignty, permanent population, government, population, government, independenceindependence

Other territorial entitiesOther territorial entities

- operating as an independent operating as an independent entity:Taiwan, still formally part of entity:Taiwan, still formally part of ChinaChina

- Palestinian Autonomous AreaPalestinian Autonomous Area- Autonomous components of Autonomous components of

existing states: Åland, Quebec, existing states: Åland, Quebec, Northern IrelandNorthern Ireland

International International OrganisationsOrganisations

- General: UNGeneral: UN- Regional: OAU, OAS, EURegional: OAU, OAS, EU- Organisation within organisation: UNESCOOrganisation within organisation: UNESCO- Economic: WTO, OECDEconomic: WTO, OECD- Maritime:IMOMaritime:IMO- Military: NATOMilitary: NATO- Migration: IOMMigration: IOM- Two-party: UK-Ireland Decommissioning Two-party: UK-Ireland Decommissioning

BodyBody- Multi-party: Mekong River CommissionMulti-party: Mekong River Commission

IndividualsIndividuals

- originally no subjecthood on international originally no subjecthood on international levellevel

- development of body of HR law on development of body of HR law on international levelinternational level

- development of personal criminal development of personal criminal resposibility on the international levelresposibility on the international level

- Setting up of ICC: nationals may be made Setting up of ICC: nationals may be made subject to the jurisdiction by a non-state subject to the jurisdiction by a non-state entityentity

- Universal jurisdiction over international Universal jurisdiction over international crimes: Pinochet -casecrimes: Pinochet -case

Other international subjectsOther international subjects

- miscellaneous groups: to some miscellaneous groups: to some extent:extent:

Sovereign Order of MaltaSovereign Order of Malta

- international contracts between - international contracts between states and private entities : tend to states and private entities : tend to give some features of international give some features of international subjecthood to private entitiessubjecthood to private entities

III SOURCES OF III SOURCES OF INTERNATIONAL LAWINTERNATIONAL LAW

- all legal systems inevitably must all legal systems inevitably must have some criterias with which one is have some criterias with which one is able to recognise legal norms, the able to recognise legal norms, the body of law:body of law:

- how are the legally binding norms how are the legally binding norms establishedestablished

- what are the legally binding normswhat are the legally binding norms- National level: legislator, case law, National level: legislator, case law,

Supreme Courts, Common law; Supreme Courts, Common law; customary lawcustomary law

Art. 38 of the ICJArt. 38 of the ICJ

- Classical list of souces of INTLClassical list of souces of INTL

a)a) International ConventionsInternational Conventions

b)b) International CustomInternational Custom

c)c) General principles of lawGeneral principles of law

d)d) Judicial decisions, writings of scholars Judicial decisions, writings of scholars (most highly qualified), subsidiary(most highly qualified), subsidiary

- not extensive list, no binding hierarchy - not extensive list, no binding hierarchy of souces but a descrition on what kinf of souces but a descrition on what kinf of materials the ICJ utilize in applying of materials the ICJ utilize in applying international lawinternational law

SOURCESSOURCES

Formal: the process through which legal Formal: the process through which legal rules become binding, how binding rules become binding, how binding obligations are bornobligations are born

Material: the substance of legal Material: the substance of legal obligations; they tell what is the content obligations; they tell what is the content of legally binding obligationsof legally binding obligations

- International conventions are the only - International conventions are the only means through which states can means through which states can intentionally create INTLintentionally create INTL

SOURCES: TreatiesSOURCES: Treaties

a) Treaties are based on the free will of the a) Treaties are based on the free will of the statesstates

- States can be obliged by a Treaty only States can be obliged by a Treaty only when it has given a specific act of when it has given a specific act of acceptance to take the obligations inluded acceptance to take the obligations inluded in the Treaty: signature/ratificationin the Treaty: signature/ratification

- A Treaty is binding only with regard to the A Treaty is binding only with regard to the parties of the Treatyparties of the Treaty

- Exception: Border Treaties; binding Exception: Border Treaties; binding erga erga omnesomnes (ie. towards rest of the (ie. towards rest of the international community)international community)

SOURCES: Treaties SOURCES: Treaties

b) When a state has given it b) When a state has given it acceptance:acceptance:

- Treaty is binding on the partiesTreaty is binding on the parties

- Treaty does not bind other states, Treaty does not bind other states, unlessunless it has become either entirely it has become either entirely or partly widely accepted through or partly widely accepted through customary INTLcustomary INTL


c) If the Treaty is ment to codify c) If the Treaty is ment to codify already existing customary INTL already existing customary INTL (eg. Vienna Convention on (eg. Vienna Convention on Diplomatic Relations, 1961, almost Diplomatic Relations, 1961, almost all states parties to it)all states parties to it)

- Treaty has general applicability, - Treaty has general applicability, since based on customary INTLsince based on customary INTL


d) Multilateral Treaties may codify or d) Multilateral Treaties may codify or even further develop INTL even further develop INTL

- often the intention of the states often the intention of the states parties is that the Treaty would in parties is that the Treaty would in future be binding on all statesfuture be binding on all states

- eg. Convention on the Law of the eg. Convention on the Law of the Sea (adopted 1982): catalytic Sea (adopted 1982): catalytic effect to INTLeffect to INTL


- parties are always obliged- parties are always obliged- states not parties: obliged only with regard to states not parties: obliged only with regard to

those Treaty provisions which are contained in those Treaty provisions which are contained in the customary INTLthe customary INTL

- if state practise later on develops to the same if state practise later on develops to the same direction as the treaty indicates, the Treaty direction as the treaty indicates, the Treaty may emerge into customary INTL: then also may emerge into customary INTL: then also States not parties become obliged by the States not parties become obliged by the entire Treaty; general applicabilityentire Treaty; general applicability

- example: Convetion on the Law of the Sea:; example: Convetion on the Law of the Sea:; crystallized the principle on economic zone; crystallized the principle on economic zone; today this provision is binding as a rule of today this provision is binding as a rule of customary INTL (confirmed by the ICJ in customary INTL (confirmed by the ICJ in Tunisia vs. Libya case 1982)Tunisia vs. Libya case 1982)


In order for a Treaty norm to become In order for a Treaty norm to become generally obliging, it has to have:generally obliging, it has to have:

- general applicabilitygeneral applicability- the intention of it must be to serve as the intention of it must be to serve as

a basis for further state practise in a basis for further state practise in futurefuture

- states must consider it as legally states must consider it as legally binding (binding (opinio jurisopinio juris))

SOURCES: CustomSOURCES: Custom

- one of the cornerstones of INTLone of the cornerstones of INTL

- legally binding norms which legally binding norms which emerge from the acts of states emerge from the acts of states (state practise) and from the (state practise) and from the customs of statescustoms of states

- establishes general principles of establishes general principles of lawlaw

SOURCES: Custom; SOURCES: Custom; elementselements

a)a) State practiseState practise

- the actual activites/passivity of the actual activites/passivity of statesstates

- statements in practical situationsstatements in practical situations- general statements concerning general statements concerning

legal principles: eg. when legal principles: eg. when accepting UN GA resolutionsaccepting UN GA resolutions


b) Consistency/uniformity of State practiseb) Consistency/uniformity of State practise

- must be continuing and uniform (Lotus case)- must be continuing and uniform (Lotus case)- requirement of uniformity is not absolute: requirement of uniformity is not absolute:

varies according to substance;varies according to substance;- The more profound norm of INTL is in The more profound norm of INTL is in

question, the stricter the requirement of question, the stricter the requirement of uniformity isuniformity is

- positive obligation: more strict U –positive obligation: more strict U –requirementrequirement

- negative obligation: less strict U –negative obligation: less strict U –requirementrequirement


c) Generality of State practisec) Generality of State practise

- common to a considerable number common to a considerable number of statesof states

- not necessarily common to all not necessarily common to all statesstates


d) The duration of State practised) The duration of State practise

- differ: a line of activities of states differ: a line of activities of states indicating state practiseindicating state practise

- even a short duration is not an even a short duration is not an obstacle for the emergence of obstacle for the emergence of customary norm (the law of outer customary norm (the law of outer space)space)


e) e) Opinio jurisOpinio juris- states must recognise the general, states must recognise the general,

uniform and continuing state practise uniform and continuing state practise as legally bindingas legally binding

- to the state practise must be to the state practise must be attached with opino juris indicating attached with opino juris indicating that the case is about legally binding that the case is about legally binding custom (Lotus case, North Sea custom (Lotus case, North Sea Continental Shelf case)Continental Shelf case)

- Proof ?Proof ?

SOURCES: Custom; elements; SOURCES: Custom; elements; opinio jurisopinio juris

How to verify its’ existence ?How to verify its’ existence ?

- certain way of behaviour by states certain way of behaviour by states is not sufficient as such: needs a is not sufficient as such: needs a separate verification; Nicaraqua –separate verification; Nicaraqua –case para. 186 31case para. 186 31

- somewhat theoretical constructionsomewhat theoretical construction

Jus cogens (peremptory Jus cogens (peremptory norm)norm)

- customary rules of fundamental nature: no customary rules of fundamental nature: no derogation acceptedderogation accepted

- always take priority over treaty obligations always take priority over treaty obligations (Vienna Convention, Art.64)(Vienna Convention, Art.64)

- no general agreement on what rules have no general agreement on what rules have attained this level: attained this level:

- prohibition of the use of forceprohibition of the use of force- equal sovereignty of statesequal sovereignty of states- prohibition of crimes against humanityprohibition of crimes against humanity- the right to self-determinationthe right to self-determination- prohibition of genocide and slaveryprohibition of genocide and slavery- freedom of the high seasfreedom of the high seas- pacta sunt servandapacta sunt servanda (treaties are binding in (treaties are binding in

law)law)

SourcesSources

Recent developments: Recent developments:

- treaty law have become the main - treaty law have become the main source of INTLsource of INTL

- It is easier to deduce accurate legal - It is easier to deduce accurate legal rules from treaty based INTLrules from treaty based INTL

- The number of international treaties - The number of international treaties have increased rapidly (need for have increased rapidly (need for them have increased): the areas not them have increased): the areas not regulated by international treaties regulated by international treaties narrownarrow

SourcesSources

If the same matter is regulated both by If the same matter is regulated both by customary INTL and treaty law, and the customary INTL and treaty law, and the state is party to the Treaty, the state is state is party to the Treaty, the state is bound by both. If contradiction arises in bound by both. If contradiction arises in such a situation:such a situation:

a)a) If the treaty has been enacted later than If the treaty has been enacted later than the customary norm has been established, the customary norm has been established, the treaty prevails over the customary the treaty prevails over the customary norm, unless it has the nature of norm, unless it has the nature of jus jus cogenscogens

b)b) if customary norm has been established if customary norm has been established later than the treaty, it prevails over treaty later than the treaty, it prevails over treaty only exceptionallyonly exceptionally

c)c) Art. 53 of the Vienna Convention: Art. 53 of the Vienna Convention: jus jus cogenscogens norm prevails always over treaty norm prevails always over treaty

SourcesSources

Acts of states do not have Acts of states do not have constituting effect establishing constituting effect establishing new customary rule even if new customary rule even if repeated often, if they are in repeated often, if they are in violation of violation of jus cogens normjus cogens norm: :

change is possible only if a new change is possible only if a new norm of norm of jus cogensjus cogens arises, which arises, which modifies the content of old jus modifies the content of old jus cogens normcogens norm

IV RELATION BETWEEN INTL IV RELATION BETWEEN INTL AND MUNICIPAL LAWAND MUNICIPAL LAW

INTL: regulates relations between INTL: regulates relations between sovereign states (but remember other sovereign states (but remember other subjects of INTL)subjects of INTL)

Municipal law: regulates relations Municipal law: regulates relations between the subjects of a sovereign between the subjects of a sovereign statestate

Overlapping systems: INTL establishes Overlapping systems: INTL establishes rights and duties obliging also rights and duties obliging also individuals (HR’s, war crimes)individuals (HR’s, war crimes)

RELATION BETWEEN INTL RELATION BETWEEN INTL AND MUNICIPAL LAWAND MUNICIPAL LAW

Lack of enforcement system in INTL: enforced Lack of enforcement system in INTL: enforced often through national courts; national law often through national courts; national law has impact on effectiveness of INTL and has impact on effectiveness of INTL and lawfulness if international actionlawfulness if international action

cases: Brazilian Loans, PCIJ 1929, p. 124. 107cases: Brazilian Loans, PCIJ 1929, p. 124. 107Barcelona traction, ICJ 1970, para50. 108Barcelona traction, ICJ 1970, para50. 108

INTL LAW of the Sea: has an impact on the INTL LAW of the Sea: has an impact on the evaluation of the width of the jurisdiction of evaluation of the width of the jurisdiction of the state in criminal mattersthe state in criminal matters

One can deduce from INTL rights to an One can deduce from INTL rights to an individual, to which one can resort before a individual, to which one can resort before a national courtnational court

RELATION BETWEEN INTL RELATION BETWEEN INTL AND MUNICIPAL LAW: AND MUNICIPAL LAW: MonismMonism

Both INTL and national law are included Both INTL and national law are included to the domestic legal orderto the domestic legal order

INTL have supremacy over national law INTL have supremacy over national law in case of a contradiction: INTL HR in case of a contradiction: INTL HR LAWLAW

Separate incorporation not necessary Separate incorporation not necessary for domestic applicabilityfor domestic applicability

Monistic systems: eg. Netherlands, Monistic systems: eg. Netherlands, EstoniaEstonia

RELATION BETWEEN INTL RELATION BETWEEN INTL AND MUNICIPAL LAW: AND MUNICIPAL LAW: DualismDualism

INTL and National: separate; if INTL and National: separate; if contradiction, national law has contradiction, national law has supremacysupremacy

- INTL responsibility, even if acting INTL responsibility, even if acting in conformity with national lawin conformity with national law

- Rights and duties do not Rights and duties do not automatically transfer into other automatically transfer into other system; separate incorporation system; separate incorporation into domestic system neededinto domestic system needed

V INTERNATIONAL V INTERNATIONAL TREATIESTREATIES

Vienna Convention on the law of treaties Vienna Convention on the law of treaties 1969: codification, has the nature of 1969: codification, has the nature of customary INTLcustomary INTL

What is a Treaty ? (VC art. 2)What is a Treaty ? (VC art. 2)- international agreementinternational agreement- between statesbetween states- written formwritten form- governed by international lawgoverned by international law

Case: Qatar v. Bahrain, ICJ 1994 Case: Qatar v. Bahrain, ICJ 1994 (Jurisdiction- First phase), para 25.) 57(Jurisdiction- First phase), para 25.) 57

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: Will confirmationWill confirmation

Full powers: either by providing Full powers: either by providing proper authetification or state proper authetification or state practise/circumstances establish practise/circumstances establish intention that the person acting had intention that the person acting had full powersfull powers

Lack of powers: no legal effect, but Lack of powers: no legal effect, but can be confirmed afterwards by a can be confirmed afterwards by a statestate

Consent to be bound: signature, Consent to be bound: signature, ratification, accessionratification, accession

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: Entry into forceEntry into force

After signing but before entry into force: After signing but before entry into force: Obligation not to defeat the object and purpose Obligation not to defeat the object and purpose of the Treaty (VC Art. 18): may indicate state of the Treaty (VC Art. 18): may indicate state practise even before entering into forcepractise even before entering into force

Provided by the treaty or otherwise agreed Provided by the treaty or otherwise agreed between statesbetween states

If no agreement or treaty provision: as soon as all If no agreement or treaty provision: as soon as all negotiating states have ratified (consent to be negotiating states have ratified (consent to be bound) example: US letter of non-intention bound) example: US letter of non-intention 66 66

No retroactivity: main rule, if not otherwise No retroactivity: main rule, if not otherwise intendedintended

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: Third statesThird states

If no consent: no obligation/rightIf no consent: no obligation/right

If a treaty provision is/ becomes a rule of If a treaty provision is/ becomes a rule of customary INTL: binding on third states customary INTL: binding on third states (VC on state succession, 1978,art. 38)(VC on state succession, 1978,art. 38)

State succession: Boundaries remain, State succession: Boundaries remain, otherwise white board for a new stateotherwise white board for a new state

71,7271,72

VCS 1978 art.12: customary INTL rule 70VCS 1978 art.12: customary INTL rule 70

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: ReservationsReservations

Express statement: state does not accept Express statement: state does not accept some provisions of the treatysome provisions of the treaty

ICJ Advisory Opinion 1951, Reservations ICJ Advisory Opinion 1951, Reservations to the Genocide Convention: reservation to the Genocide Convention: reservation possible if compatible with the object possible if compatible with the object and purpose of the Convention and purpose of the Convention 7474

ECHR, Belilos v. Switzerland 1988: ECHR, Belilos v. Switzerland 1988: reservation that was too wide in scope reservation that was too wide in scope was not valid 76was not valid 76

Legal effect: modifies treaty if not Legal effect: modifies treaty if not objected (VC art. 21) 78 79 81 82objected (VC art. 21) 78 79 81 82

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: InterpretationInterpretation

In good faithIn good faith

In ordinary meaning of the terms of the treatyIn ordinary meaning of the terms of the treaty

In contextIn context

In the light of its purpose and objectsIn the light of its purpose and objects

What is context: VC art 31 84 85What is context: VC art 31 84 85

Contracting out from Contracting out from jus cogensjus cogens ? 91 ? 91

Obligations erga omnes: towards intl. Obligations erga omnes: towards intl. community as a whole (ICJ Barcelona community as a whole (ICJ Barcelona traction case ) 93traction case ) 93

INTERNATIONAL TREATIES: INTERNATIONAL TREATIES: invalidity, terminationinvalidity, termination

Notification to other states partiesNotification to other states parties

Invalid treaty has no legal forceInvalid treaty has no legal force

Invalidity and termination must be in Invalidity and termination must be in accordance of the Treaty, if state accordance of the Treaty, if state has been boubd by ithas been boubd by it

VI INTERNATIONAL VI INTERNATIONAL ORGANISATIONSORGANISATIONS

Diplomacy was not enough – Diplomacy was not enough – international conferences to deal with international conferences to deal with multilateral problems: ending wars multilateral problems: ending wars (Peace of Westphalia 1648, Congress (Peace of Westphalia 1648, Congress of Wienna 1815)- regularity of the of Wienna 1815)- regularity of the conferences- periodisation; Balkans conferences- periodisation; Balkans (Paris Conference 1856, Berlin (Paris Conference 1856, Berlin gathering), Africa (Berlin Conferences gathering), Africa (Berlin Conferences 1884-5)1884-5)

Int. NGO’s: Red Cross 1863, ILA 1873Int. NGO’s: Red Cross 1863, ILA 1873

INTERNATIONAL INTERNATIONAL ORGANISATIONSORGANISATIONS

Impact:Impact:- state practise within organisations state practise within organisations

– INTL– INTL- treaty interpretationtreaty interpretation

INTERNATIONAL INTERNATIONAL ORGANISATIONSORGANISATIONS

Liability of member states:Liability of member states:- debts and delicts – if legal debts and delicts – if legal

personality , then organisationpersonality , then organisation- if no separate legal personality, if no separate legal personality,

then member statesthen member states- complex issuecomplex issue

Privileges and immunitiesPrivileges and immunities

INTERNATIONAL INTERNATIONAL ORGANISATIONS: UniversalORGANISATIONS: Universal

League of Nations 1919: Promotion League of Nations 1919: Promotion of international co-operation, of international co-operation, peaceful resolution of disputes, peaceful resolution of disputes, sovereignty and independence of sovereignty and independence of the member states, sanctionsthe member states, sanctions

weakness: each member state weakness: each member state concluded whether a violation had concluded whether a violation had taken place and whether to resort taken place and whether to resort sanctionssanctions

Failed to to take effective measures: Failed to to take effective measures: formally dissolved 1946formally dissolved 1946

INTERNATIONAL INTERNATIONAL ORGANISATIONS: UniversalORGANISATIONS: Universal

The United nations: San Fransisco The United nations: San Fransisco Conference 1945, so far successConference 1945, so far success

GATT: 1947-8 Havana Conference, GATT: 1947-8 Havana Conference, different GATT rounds, Uruguay different GATT rounds, Uruguay round 1986 led to the round 1986 led to the establishment of the WTO in 1994, establishment of the WTO in 1994, and GATT continued until the end and GATT continued until the end of 1995of 1995

INTERNATIONAL INTERNATIONAL ORGANISATIONS: RegionalORGANISATIONS: Regional

WEU 1948- now integral part of EU as WEU 1948- now integral part of EU as defence componentdefence component

NATO 1949NATO 1949Warsaw Pact Warsaw Pact Arab League 1944Arab League 1944ASEAN 1967ASEAN 1967OAS 1948 – also collective security OAS 1948 – also collective security

systemsystemOAU 1963OAU 1963EEC-EU, 1951-1957-1992EEC-EU, 1951-1957-1992

INTERNATIONAL INTERNATIONAL ORGANISATIONS: Regional; ORGANISATIONS: Regional; EuropeEurope

CoE 1949CoE 1949

OSCE 1975, from conference to OSCE 1975, from conference to organisation 1995organisation 1995

CIS- some of the former Soviet CIS- some of the former Soviet republicsrepublics

INTERNATIONAL INTERNATIONAL ORGANISATIONS: UNORGANISATIONS: UN

a)a) Security CouncilSecurity Council- maintaining int. peace and securitymaintaining int. peace and security- UN Charter ch. VII: SC powers to act on UN Charter ch. VII: SC powers to act on

behalf of all statesbehalf of all states- UN Charter Art. 39: IF SC concludes that UN Charter Art. 39: IF SC concludes that

there is a threat to peace, breach of there is a threat to peace, breach of peace or an act of aggression, it may peace or an act of aggression, it may resort to measures under Art. 41 and 42resort to measures under Art. 41 and 42

- interim measures under Art.40 until interim measures under Art.40 until decision under Art. 39 has been madedecision under Art. 39 has been made


What kind of activities may come under Art. What kind of activities may come under Art. 39 ?39 ?

- military action or the threat of itmilitary action or the threat of it- unstable internal situation in a state: South-unstable internal situation in a state: South-

Africa, Rhodesia, Liberia, Haiti, RwandaAfrica, Rhodesia, Liberia, Haiti, Rwanda- state terrorism/support to terrorism (Libya state terrorism/support to terrorism (Libya

1992/93)1992/93)- No general set of rules binding SC: SC No general set of rules binding SC: SC

decidesdecides- SC has primary responsibility to maintain SC has primary responsibility to maintain

international peace and securityinternational peace and security


UN Charter ch VII: SC action possibilitiesUN Charter ch VII: SC action possibilities- recommendationsrecommendations- provisional measuresprovisional measures- sanctions (art. 41): Binding on UN member sanctions (art. 41): Binding on UN member

statesstates

no armed force; trade boycott (Haiti, not in no armed force; trade boycott (Haiti, not in force anymore), arms trade embargo force anymore), arms trade embargo (Liberia, Rwanda), flight (Liberia, Rwanda), flight restrictions(Libya),restrictions(Libya),

cutting off economic and diplomatic cutting off economic and diplomatic relations, other restricted measuresrelations, other restricted measures


Peace enforcement, art. 42:Peace enforcement, art. 42:

SC may take a military action, which is SC may take a military action, which is necessary to maintain or restore necessary to maintain or restore international peace and security, preceding international peace and security, preceding violation of INTL by the target of the violation of INTL by the target of the operation is not a necessary requirementoperation is not a necessary requirement

Example: SC authorised NATO to take all Example: SC authorised NATO to take all necessary action to implement Dayton necessary action to implement Dayton agreement (Bosnia, Kosovo was not agreement (Bosnia, Kosovo was not inluded to the agreement)inluded to the agreement)


SC has power to authorise states to act on its behalf:SC has power to authorise states to act on its behalf:- 1950 recommended all member states to provide 1950 recommended all member states to provide

military assistance to South-Korea under the UN military assistance to South-Korea under the UN operation after North-Korea had attacked; de facto operation after North-Korea had attacked; de facto a US led and conducted operationa US led and conducted operation

- 1966 authorised UK to keep up the oil embargo of 1966 authorised UK to keep up the oil embargo of RhodesiaRhodesia

- 1990 (over 20 resolutions) authorised the member 1990 (over 20 resolutions) authorised the member states to take all necessary action to restore the states to take all necessary action to restore the sovereignty of Kuwait (29 states participated)sovereignty of Kuwait (29 states participated)

- 1993 authorised UN forces in former Yugoslavia to 1993 authorised UN forces in former Yugoslavia to take all necessary action to protect civilian take all necessary action to protect civilian population; 1995 the task was delegated to NATOpopulation; 1995 the task was delegated to NATO

- 1993 authorised the UN forces in Somalia to take all 1993 authorised the UN forces in Somalia to take all necessary action to protect UN forces against necessary action to protect UN forces against attacksattacks


UN General Assembly:UN General Assembly:- Represents all statesRepresents all states- No powers to make legally binding decisionsNo powers to make legally binding decisions- 1950 Uniting for peace resolution; If SC was due 1950 Uniting for peace resolution; If SC was due

to a veto unable to take care of its’ primary to a veto unable to take care of its’ primary responsibility to maintain peace and security, responsibility to maintain peace and security, UN GA will take the issue immediately under its UN GA will take the issue immediately under its consideration to give necessary consideration to give necessary recommendations to member states for recommendations to member states for collective action; however, use of force remains collective action; however, use of force remains as a sole power of the SC (presently does not as a sole power of the SC (presently does not have importance, used to get issues under have importance, used to get issues under discussion before the GAdiscussion before the GA

- 1956 UNEF peace keeping operation in Egypt 1956 UNEF peace keeping operation in Egypt after Suez crisis; it was not a sanction, since after Suez crisis; it was not a sanction, since Egypt gave its permission for the operation, Egypt gave its permission for the operation, therefore SC authorisation was not necessarytherefore SC authorisation was not necessary

VII Peaceful settlement of VII Peaceful settlement of disputesdisputes

UN Charter 2(3) Art.: obligation not to UN Charter 2(3) Art.: obligation not to endanger peace and security- obligation to endanger peace and security- obligation to resort to peaceful settlement of disputes, resort to peaceful settlement of disputes, if they endabger peace and responsibilityif they endabger peace and responsibility

- no general responsibility for dispute no general responsibility for dispute settlement; if done- must be peacefulsettlement; if done- must be peaceful

- usually ICJ does not have compulsory usually ICJ does not have compulsory jurisdictionjurisdiction

- provided that HR’s and UN SC resolutions provided that HR’s and UN SC resolutions are not violated (Flight restrictions over are not violated (Flight restrictions over Iraqi Kurd areas) states have the right to Iraqi Kurd areas) states have the right to use force in their internal disputesuse force in their internal disputes

Peaceful settlement of Peaceful settlement of disputesdisputes

- dispute may be international even if dispute may be international even if the parties are not states (eg. the parties are not states (eg. Bosnian Moslems, Serbs and Croats)Bosnian Moslems, Serbs and Croats)

Measures: negotianions, mediation, Measures: negotianions, mediation, good offices, fact-finding, settlement good offices, fact-finding, settlement by the UN, regional organisations, by the UN, regional organisations, arbitration, ICJ, other int. courts, arbitration, ICJ, other int. courts, Permanent Court of Arbitration etc.Permanent Court of Arbitration etc.


International Court of Justice:International Court of Justice:

- legal disputes- legal disputes- 4-5 cases /year, 15 judges elected by the 4-5 cases /year, 15 judges elected by the

UNGA and SC: 1 judge from every UNGA and SC: 1 judge from every permanent member of the SC (no permanent member of the SC (no possibility to use veto in election); 10 possibility to use veto in election); 10 judges are chosen from the candidates judges are chosen from the candidates proposed by the member states of the proposed by the member states of the Permanent Court of Arbitration; in practice Permanent Court of Arbitration; in practice judge from all continentsjudge from all continents

- the composition of the ICJ must reflect the the composition of the ICJ must reflect the main forms of civilization of the worldmain forms of civilization of the world


- ICJ is a UN bodyICJ is a UN body- The statute of the ICJ is a part of the The statute of the ICJ is a part of the

UN CharterUN Charter- only states may be parties to a case only states may be parties to a case

before the ICJbefore the ICJ- either compulsory or ad hoc either compulsory or ad hoc

jurisdictionjurisdiction- advisory opinions; UN or its special advisory opinions; UN or its special

organisation; are not legally bindingorganisation; are not legally binding

VIII INTERNATIONAL HUMAN VIII INTERNATIONAL HUMAN RIGHTSRIGHTS

- Guaranteed in international human - Guaranteed in international human rights treatiesrights treaties

– define minimum standardsdefine minimum standards– margin of appreciation(ECHR)margin of appreciation(ECHR)– international supervision mechanisms only international supervision mechanisms only

add to domestic one: domestic supervision add to domestic one: domestic supervision primaryprimary

International supervision International supervision of HRsof HRs

• ECHRECHR• ICCPRICCPR• ICESCRICESCR• UN Convention on the rights of the childUN Convention on the rights of the child• UN Convention on the rights of womenUN Convention on the rights of women• UN Convention on the elimination of all forms of racial UN Convention on the elimination of all forms of racial

discriminationdiscrimination• UN and CoE conventions against torture UN and CoE conventions against torture • ILO TreatiesILO Treaties

WHO IS ACCOUNTABLE ?WHO IS ACCOUNTABLE ?

State and its authoritiesState and its authorities

Domestic courts in a key role: Domestic courts in a key role: provisions guaranteeing fair trial provisions guaranteeing fair trial importantimportant

International HR bodies not a fourth International HR bodies not a fourth instance: they do not have powers instance: they do not have powers to abrogate domestic decisionsto abrogate domestic decisions

Supervision mechanismsSupervision mechanisms

Individual complaintIndividual complaint

Collective complaint (EU social Collective complaint (EU social charter)charter)

ReportingReporting

Hearing of NGOsHearing of NGOs

Fact finding missionsFact finding missions

IX USE OF FORCEIX USE OF FORCE

UN Charter 2(4) Art.. : use or threat UN Charter 2(4) Art.. : use or threat of force is prohibited againstof force is prohibited against

- territorial integrityterritorial integrity- political independencepolitical independence- any other manner inconsistent any other manner inconsistent

with the purposes of the UNwith the purposes of the UN- all states have accepted thisall states have accepted this- exception: UN Charter Art. 51 exception: UN Charter Art. 51

allows use of force for self-defenceallows use of force for self-defence

USE OF FORCEUSE OF FORCE

Restrictive interpretation of Art. 51:Restrictive interpretation of Art. 51:- self-defence acceptable (also in an self-defence acceptable (also in an

area of the aggressor state) if it does area of the aggressor state) if it does not lead to a permamnent occupation not lead to a permamnent occupation or loosing of territory or loosing of territory

- provided that it does not endanger provided that it does not endanger target states independent decision-target states independent decision-makingmaking

- and is not inconsistent with the and is not inconsistent with the purposes of the UNpurposes of the UN


also accepted: also accepted:

- rescuing citizens (Entebbe)rescuing citizens (Entebbe)- protection of HRs (no-fly zones in protection of HRs (no-fly zones in

Iraq)Iraq)


Customary right to self-defence:Customary right to self-defence:

a)a) Counter measure against armed aggressionCounter measure against armed aggression

b)b) Eliminating imminent threat of armed Eliminating imminent threat of armed aggression (the bombing of Iraqi nuclear aggression (the bombing of Iraqi nuclear installation in 1982 by Israel)installation in 1982 by Israel)

c)c) Counter aggression or threat against Counter aggression or threat against nationals, property or rights guaranteed nationals, property or rights guaranteed under INTLunder INTL

d)d) non-armed aggression (economic, non-armed aggression (economic, propaganda) necessitating immediate propaganda) necessitating immediate counter-measurescounter-measures


Restrictive interpretation of UN Restrictive interpretation of UN Charter Art.51: also customary right Charter Art.51: also customary right to self-defence have been limitedto self-defence have been limited

- if so, only against armed aggressionif so, only against armed aggression- not clear which one of the not clear which one of the

interpretations is correct: state interpretations is correct: state ptactise , which is contraversaryptactise , which is contraversary

USE OF FORCE: Humanitarian USE OF FORCE: Humanitarian intervention ?intervention ?

Definition: state A may use forcible measures Definition: state A may use forcible measures in the area of state B, even if B resistsin the area of state B, even if B resists

Preconditions:Preconditions:

a) Intervention have to be accepted by an a) Intervention have to be accepted by an international organisation (UN or regional)international organisation (UN or regional)

b) only in cases of gross violations of HRsb) only in cases of gross violations of HRs

Inconsistent state practise (Iraq, Rwanda, Inconsistent state practise (Iraq, Rwanda, Cambodia 1979Cambodia 1979

Problem: subjective element of the intervening Problem: subjective element of the intervening state; misuse easy KOSOVO ?state; misuse easy KOSOVO ?

X Humanitarian lawX Humanitarian law

Norms that seek during armed conflict Norms that seek during armed conflict toto

- protect persons who are not or are no protect persons who are not or are no

longer taking part in the hostiliteslonger taking part in the hostilites- restrict the methods and means of restrict the methods and means of

warfarewarfare- War crimes: also grave breaches War crimes: also grave breaches

during internal conflictduring internal conflict- Geneva 1949 Conventions and Geneva 1949 Conventions and

additional protocols 1977 additional protocols 1977

Humanitarian lawHumanitarian law

Basic obligations:Basic obligations:- distinction between civilian population distinction between civilian population

and combatantsand combatants- prohibited to wound surrenderers or prohibited to wound surrenderers or

those unable to take part to the those unable to take part to the fighting anymorefighting anymore- distinction between civilian targets distinction between civilian targets

and military targets and military targets - only military objectives can be only military objectives can be

targetedtargeted

XI State responsibilityXI State responsibility

Responsibility for wrongful acts in all legal Responsibility for wrongful acts in all legal systemssystems

State responsibility: preconditions for a legal State responsibility: preconditions for a legal state responsibility for violating an state responsibility for violating an obligation under international law, and its obligation under international law, and its conseguences (duty to compensate)conseguences (duty to compensate)

- arises when a state has violated an arises when a state has violated an obligation it has vis-a-vis another stateobligation it has vis-a-vis another state

- eg. violation of a treaty obligation, eg. violation of a treaty obligation, customary law, legally binding int. decision, customary law, legally binding int. decision, maltreatment of nationals of another state, maltreatment of nationals of another state, valid decision of an int.organisation (UN SC)valid decision of an int.organisation (UN SC)

State responsibilityState responsibility

Basic precondition: illegal act, for Basic precondition: illegal act, for which a state is accountable forwhich a state is accountable for

- example: UN SC resolution 687; - example: UN SC resolution 687; Iraqi oil sold, and the income is Iraqi oil sold, and the income is used to pay compensation for used to pay compensation for damage caused by illegal damage caused by illegal occupation of Kuwait by Iraqoccupation of Kuwait by Iraq

How to analyse legal casesHow to analyse legal cases

1.1. Read quickly the case as a wholeRead quickly the case as a whole

2.2. On the second reading identify the On the second reading identify the facts that are relevant for applying facts that are relevant for applying the law into the casethe law into the case

3.3. Structure your analysis issue by Structure your analysis issue by issueissue

4.4. Lastly read the case once again and Lastly read the case once again and compare your analysis to the facts so compare your analysis to the facts so you dont miss anything and that you you dont miss anything and that you have understood the facts correctlyhave understood the facts correctly

XII THEORIES OF XII THEORIES OF INTERNATIONAL LAWINTERNATIONAL LAW

idealism – realism: Kant-Carl Schmitt/Hans idealism – realism: Kant-Carl Schmitt/Hans MorgenthauMorgenthau

empirism/positivism: explaining social phenomena empirism/positivism: explaining social phenomena by using empirical methodby using empirical method

essentialism/normativism: revealing the essence essentialism/normativism: revealing the essence of different social entities, positivismof different social entities, positivism

Marxism: revolutionMarxism: revolution structuralism: revealing structural antagonismsstructuralism: revealing structural antagonisms post-modernism: deconstructing traditional post-modernism: deconstructing traditional

dominating structuresdominating structures Critical legal studies (CLS): to explore the manner Critical legal studies (CLS): to explore the manner

in which legal doctrine and legal education and in which legal doctrine and legal education and the practices of legal institutions work to buttress the practices of legal institutions work to buttress and support a pervaisive system of oppressive, and support a pervaisive system of oppressive, inegalitarian relations to develop radical inegalitarian relations to develop radical alternatives:….alternatives:….

I SPECIAL NATURE OF INTERNATIONAL LAW 1. Is it law ? 2. Implementation ? 3. What about enforcement ? 4. Who is the legislator ? Differs obviously from.

Documents

b international law

international law slide

system of international

international rules

international courts

international legal

international affairs

private b