Public International Law.ppt

Public International Law

law that governs relationships between, or among, nation-

states

International Law Historically and Presently

• Law that applies to conduct of nation-states and of international organizations

• Law that applies to relationships between nation-states and international organizations

• Law that applies to some relationships between nation-states or international organizations and persons – see Restatement (Third) of Foreign Relations Law of the United States ' 101 (1987)

The Nature of International Law

Supremacy of International Law

• Intl. Law supersedes national law

Supremacy of International Law

• Internationally, national law never supersedes international law

• Domestically, national law may take precedence over international law

Enforcement and Compliance• When international law is enforced on

national level, it follows the same principles as domestic law

• But International courts do not have jurisdictions over national/domestic affairs, cannot enforce without cooperation

History of International Law• Hugo Grotius (1583-1645), “De Jure

Belli Ac Pacis” (1625) – systematic overview of the international law of war and peace

• Emmerich de Vattel (1714-1767), The law of Nations (1758) – practical and cited guide to international law

History of International Law• Positivism – Richard Zaouch (1590-1660)• Actual state practices as a source of

international law – law emerges as a consent of states cf. social contract)

Sources of Public International Law

• Article 38(1) of the Statute of the International Court of Justice (UN)

• Restatement (Third) of § 102(2)• International conventions, agreements,

treaties• International custom – customary

international law• General principles of law• Judicial decisions (international and

national) and the teachings of qualified publicists

Article 38 (1) of ICJ• A rule cannot be deemed international

law unless it is:• International convention or treaty• International custom or• General principle of law• But do they have the same hierarchical

value?

• depends on whether U.S. is a party and whether multilateral or bilateral

• List of treaties US is a party to – “Treaties in Force in 2007” http://www.state.gov/s/l/treaty/treaties/2007/index.htm

Source: Treaties

http://www.state.gov/s/l/treaty/treaties/2007/index.htm

http://www.state.gov/s/l/treaty/treaties/2007/index.htm

• List of treaties US is not a party to

• http://untreaty.un.org/ENGLISH/Summary.asp (more research is necessary)

Source: Treaties

International Treaties• Bilateral – a treaty involving 2 parties

International Treaties• Multilateral – a treaty involving

many parties

International Treaties• "This is to inform you, in connection with

the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty."

Source: Customary International Law

• evidence of state practice in:• records of a state’s foreign relations and

diplomatic practices (as set forth in official statements, diplomatic exchanges)

• state’s domestic court decisions• state’s internal legislation concerning its

international obligations• resolutions, declarations & legislative

acts of intergovernmental organizations

Opinio Juris• It’s not enough for a practice to be widely

followed It must come from• sense of obligation• followed by significant number of states

and not rejected by significant number• A shared conviction that the rule is

obligatory• Once practice becomes the law, it is

obligatory to all states that have not objected to it

International Customary Law and Newly Independent

States• Are new states bound by international

customary law in force, since they did not have a chance to object to it?

• Yes, according to Restatement of 102(2)

General principles of international law recognized

by civilized nations • Historically more important - now,

modern international law relies less upon general principles than on conventional and customary sources

General principles of international law recognized

by civilized nations • The lines blur between custom and

general principles: often, general principles will establish norms that then become custom

• look to decisions of international tribunals for a determination of what are “general principles”

Secondary sources on International Law

• judicial decisions • teachings of publicists: recognized

authorities on international public law• Both serve as proof of existence of a

rule of international law

International Law, States, and International

Organizations

States: When is a State a State Internationally?

• Recognition of new state• Old: defined territory, permanent

population, effective government, capacity to enter into relations with others

• Now: degree of governmental control may be weak in the beginning, if consentual change of government

• Also additional conditions

Ex. of New Recognition of States: Dissolution of USSR

Ex. of New Recognition of States: Dissolution of USSR

• New guidelines:

Recognition in US practice• Stems from presidential power to “receive

Ambassadors and other public ministers”• Exclusively an executive branch prerogative

(not banks, or companies)• Recognized states have a right to:• Bring a law suit in US courts• Claim sovereign immunity in US courts and

receive diplomatic protection• Have access to the state’s bank deposits and

property in US

International Organizations: Characteristics

• Institutions established by treaty• Composed by states and/or

international organizations• Regulated by international law• Have legal rights as organization

International Organizations: Legal Issues

• Membership criteria• Voting issues• Budgetary issues

UN• October 24, 1945 – multilateral treaty

and charter which is UN constitution• Initially 54, now @ 200 ind. states• Universal organization (in scope and

function)• Responsibilities:

UN• Debate over intervention in internal

affairs of member-states: prohibited unless authorized by Security Council

• UN charter has supremacy over all other state’s international obligations

• Voting procedures: SC: unanimous, GA: 2/3 for important decisions, >50% for all others

UN• Very few UN resolutions adopted by GA

are binding (decisions on budgetary matters), all others are recommendations

• UN resolutions adopted by SC are biding for all if all SC members agree there is a threat to peace or act of aggression: UN SC resolution to impose sanctions on Iraq in 1990

Regional International Organizations

• Same as Intergovernmental organizations, except their mandate is to deal with regional problems (general or specific)

• Council of Europe, NATO, OAS, African Union, ASEAN

• Issues of membership

Supranational organizations• Unlike other intergovernmental

organizations – has power to bind its members by its decisions

Non-Governmental International Organizations

• Third type of subject of International law

Territorial Sovereignty and Methods Used in Settling Disputes

between States• Priority given to peaceful means:• Solution by negotiation • Enquiry• Mediation• Conciliation• Arbitration and adjudication • Judicial settlement

Peaceful Non-Judicial Means of Conflict Settlement

• Negotiation: through diplomatic correspondence or face-to-face negotiations

• US and Japan trade policy• Inquiry: designation of impartial group to do

fact-finding mission, unambiguous finding may put an end to disputes over facts Conciliation: more formal, parties are not obligated to accept recommendations of third, formal party, but existence of report makes more difficult to disregard it

Peaceful Quasi-Judicial Means of Conflict Resolution

• Arbitration and Adjudication: binding to parties involved, not subject to appeal, ruling may be challenged in national court, but only in very few special circumstances

• Deference: Arbitration is ad hoc panel, agreed upon by parties

• Adjudication: permanent court with fixed composition and preexisting rules of procedure and jurisdictional standards

Special Case: International arbitration and individual

• Arbitration between the state and the individual (corporation)

Special Case: International arbitration and individual

• International Chamber of Commerce (Paris)

• International Center for Settlements of Investment Disputes

Iran-US Claims Tribunal

Judicial Methods of Peaceful Conflict Resolutions

• Rulings of international courts• Relatively new phenomenon• Central American Court of Justice

(1908-1918)• International Court of Justice• International Tribunal for the Law of

the Sea

Judicial Methods of Peaceful Conflict Resolutions

• Ad hoc international crime tribunals• International criminal curt• Court of Justice of the European

Community• European Court of Human Rights• Inter-American Court of Human Rights• African Court of Human and People’s

rights

Jurisdiction and Immunities from Jurisdiction

ICJ• Part of UN• All UN members are ipso facto

members of ICJ• 15 judges from 15 different states• Elected by UN GA and SC with

absolute majorities in both• Contentious jurisdiction and advisory

jurisdiction

Contentious jurisdiction• Only to disputes between states which have

accepted court’s jurisdiction (on ad hoc, through treaty provision, or unilaterally)

US and ICJ jurisdiction• US nominally accepts ICJ jurisdiction

over its actions and actions of its nationals but with very serious reservations

• Connally Amendment (Texas Senator)• US excludes from jurisdiction of ICJ

disputes over matters in domestic jurisdiction of US as determined by US

• Self-judging rule: US and not ICJ decides what is a domestic and what is in international dispute

US and ICJ jurisdiction• 1985: declaration of US termination of

acceptance of ICJ jurisdiction

US, ICJ and National Security Considerations

• US claims that matters related to national security and self-defense must be excluded from ICJ jurisdiction (hence its decision to withdraw after US-Nicaragua litigation)

• Problem: when is a matter a security concern?

Other Important Courts and Their Jurisdictions

• Ad Hoc International Criminal Tribunals• ICTY (Hague) and ICTR (Arusha, Tanzania)


• 2000 Treaty of Rome, ICC created in 2002• 100 states signed and agreed that ICC will

have jurisdiction to prosecute their nationals suspected in genocide, crimes against humanity, war crimes, and aggression


• 2005: UN SC referred Sudan to ICC for Darfur

• US withdrew in 2002

Other Important Courts and Their Jurisdictions: European Court of

Human Rights• Established in 1959• Now all members of Council of

Europe are parties to it (Russia too)• Constitutional Court of Europe

International Law and Specific International

Issues

International Law and Human Rights

International Human Rights Law• Two applicable laws1. International law of human rights:

protects regardless of nationality 2. Law on responsibilities of states for

injuries to aliens: protects individuals against violation of their rights only when their nationality is not that of offending state

• If stateless or national of offending state, individual has protection only of international law of human rights

International Law of Human Rights: History

• doctrine of humanitarian intervention (DHI) – Grotius

• Peace treaties after WWI – formal protection of national, religious, linguistic minorities under League of Nations

• International Labor Organization – international standards for protetion of workers


• UN charter (art. 55) – protection of individuals for their intrinsic value

• UN member obligations: promote universal respect and observance of human rights for all without distinction as to race, gender, religion, or language

• UN members to take joint and separate action to guarantee these rights


• Universal Declaration of Human Rights (GA Res. 217A, 1948): non-binding, but acquired status of customary international law (esp. freedom from torture, slavery, arbitrary detention, discrimination)

• But also positive rights to work, education, health care (not specific enough)


• 1966: UN International covenant on Civil and Political Rights: rights of self-determination and other, much more precisely delineated rights (required ratification) US ratified only in 1992

• 1966: UN International Covenant on Economic, Social, and Cultural Rights – positive rights guaranteed only if resources are available – not ratified by US

European Human Rights Law and Institutions

• European Convention for the Protection of Human Rights and Fundamental Freedoms (1953)

• European Court of Human Rights

Inter-American Human Rights Law and Institutions• Charter of the OAS and American

Convention on Human Rights • US, Canada, and Commonwealth of

Caribbean states did not ratify Convention

International Human Rights: International Humanitarian Law• Applies to situations of international

armed conflict and (occasionally) internal armed conflict

• 1949 Geneva Convention ratified by > 190 states: protection to victims of war

• Applies mostly to international armed conflict

• For internal conflict – only art. 3 government and insurgents to treat each other humanely

Humanitarian Law: War Crimes and Crimes Against Humanity• ICTY and ICTR – based on Geneva

Convention and Nuremberg Tribunal

• International Human right law thus has practical applicability, even in US (next slide)

Human Rights and Humanitarian Law: Practice• Handan vs. Rumsfeld (2006)

International Environmental Law

Principles of International Environmental Law

1. Common Heritage and Common Concern of Humankind

2. Prevention of Environmental Harm


3. Precautionary Principle


4. Polluter pays5. Principle of Common but Differentiated

Responsibilities


6. Principle of Intergenerational Equity

International Environmental Law: History

• Late 19th century: first interstate agreements regulating international fishing, protecting flora and fauna

• Regulation of use of water• But bulk of environmental law -- 1960s

International environmental law: History

• 1972 UN Stockholm Conference (113 heads of states)

• Declaration on Human Environment: politically binding principles to be followed by governments in preserving human environment, but recognized economic realities limiting environmentalism

• Also adopted politically binding Action Plan: creation of UNEP

• Numerous more specific conventions in 1970s and 1980s

International Environmental Law: History

• 1992 Rio Conference (172 heads of states): conventions on climate change and diversity, Agenda 21

• 1997: ICJ addresses dilemmas of economic development and environmental protection (Gabcikovo project of dams and locks on Danube)

• not enough to claim ecological necessity in closing economic project

• Need to practice sustainable development

Ecodevelopment – Sustainable Development

• 2002 Johannesburg Conference• Prospects

Ozone Depletion Treaty• 1987: Montreal Protocol on Substances

that Deplete the Ozone layer• Reduction of production of ozone-

depleting chemicals• Non-compliance procedure: if having a

difficulty in meeting requirement, country can be reported to committee

• Warning, suspension of rights and privileges and assistance

Kyoto Protocol• Reduction of carbon dioxide emissions by

5.2% below 1990 levels by 2012• Controversies• “emission trading,” how to count “carbon

sinks” (forests, rangeland, farmland) which reduce emissions, problem of non-compliance

• US: treaty is not scientifically-based, unfair burdens, not environmentally effective

• With Russia signing it in 2005, in effect

1992 Pact on Biodiversity• Protection of biodiversity is responsibility

of national governments• But genetic resources have economic

value (biotechnology)• States should provide access to such

resources for environmentally sound uses• States should share in a fair and equitable

way results of biotechonology with the state providing resource (US objected)

International Law and the Use of Force

General Principles• The use of force is prohibited in

international relations• Article 2(4) of UN Charter:• “All members shall refrain I their

international relations from the threat of use of force against territorial integrity or political independence of any State”

What it means• Armed reprisal by a state to punish

unlawful act of another state is not permissible under international law

• Or• As long as it does not threaten

territorial integrity and political independence, force can be used for protection of human rights (few agree with this)

What it means• ICJ ruled against UK, Eritrea, and

Uganda in violating sovereignty of other states even then motives were good

Another General Principle• Inherent Right of Self Defense• Recognized as legitimate (article 51 of UN

Charter)• Nature of “initial attack” does not need to be

conventional (one state or government attacking the other)

• Al Qaeda in Afghanistan • US exercised a right of self-defense• UN and intl. community supportive• SC passed 2 resolutions recognizing US

actions as self-defense

Preemptive War as Self-Defense

• With WMDs states and scholars assert a right of “anticipatory” self-defense

• Doubts about ability to predict future attacks, also intent vs. means

Peace Enforcement• UN has a primary responsibility

under UN charter• Originally envisioned that states

will enter into agreement with US for their forces to be called up by SC in case of armed conflict

UN Security Operations, 1945-1989

• Rarely invoked because of ideological divide

• The only SC authorization to use force in case of breach of peace was in 1950 (N.Korea attacked S. Korea), when USSR boycotted SC

UN Security Operations in the 1990s

• More active in authorization• 1990 Iraq’s Invasion of Kuwait: UN

authorized states to use all necssary means to uphold its resolution for immediate withdrawal

• 2003 US and UK invasion of Iraq: plausible, but unpersuasive justification

UN Security Operations in the 1990s

• 1990s: authorizations to use force to address human rights violations

• 1992 UN authorization for US-led intervention in Somalia

• 1993 UN authorization for NATO air strikes in Bosnia

• 1994 UN authorization for France to intervene in Rwanda

• 1994 UN authorization for US to intervene in Haiti

What do you think about International Law and US

foreign Policy