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Introduction to Public International Law
October 2010
Sovereignty
There exists perhaps no conception the meaning of which is
more controversial than that of sovereignty. It is an indisputable
fact that this conception, from the moment when it was
introduced into political science until the present day, has never
had a meaning which was universally agreed upon.
~ Lassa Oppenheim
"of all the rights that can belong to a nation, sovereignty is
doubtless the most precious“ ~ Vattel
Exclusivity; control (de jure and de facto); supremacy;
recognition (external, internal, legitimacy)?
Non-intervention
Sovereignty
UN Charter, Art. 2(1): “The [UN] is based on the principle of the
sovereign equality of all its Members.”
Non-intervention
U.N. Charter, Art. 2(4): “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.”
UN Charter, Art. 2(7): “Nothing contained in the present
Charter shall authorize the UN to intervene in matters which
are essentially within the domestic jurisdiction of any state.”
What is a state?
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states
Declarative theory – independent of recognition
Constitutive theory – recognized by other sovereigns
Implications of statehood for protection . . .
Protection of civilians
“Governments should be guided by their overriding
obligation to protect each and every civilian within their
jurisdiction, regardless of their gender, ethnicity, religion
or political conviction.”
The primary responsibility of the protection of civilians lies with the government.
Guiding Principles on Humanitarian Assistance
(A/RES/46/182 December 19, 1991)
Sources of International Law
Article 38
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
Treaties
Bilateral or multilateral (written) agreement b/t States
“[I]nternational conventions, whether general or particular,
establishing rules expressly recognized by the contracting States”
(ICJ Statute, Art. 38)
Signature at adoption (refrain from acts which defeat object &
purpose – good faith)
Consent to be bound
Instrument of ratification
Instrument of accession
Same legal affect – becomes a party to the treaty
VCLT (1969)
Every treaty in force is binding upon the parties to it and must be performed in
good faith. Art. 26 (pacta sunt servanda)
A party may not invoke the provisions of its internal law justification for its
failure to perform a treaty. Art. 27
Reservation?
ICJ - Reservations to the Convention on the Prevention of Genocide
The object and purpose of the Convention thus limits both freedom of
making reservations and that of objecting to them . . . . “Compatibility with
object and purpose of the Convention” is the controlling principle.
Arts.19-23 of VCLT: Reservation permissible so long as:
--not prohibited by treaty
--not incompatible w/ object and purpose of treaty
Art. 31, General rule of interpretation
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.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with
the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the
treaty and accepted by the other parties as an instrument related to the treaty.
3.There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4.A special meaning shall be given to a term if it is established that the parties so intended.
Custom
ICJ Statute, Art. 38(1)(b):
“[A] general practice accepted as law”
ICJ, Military and Paramilitary Activities in and against Nicaragua,
1986:
“[F]or a new customary rule to be formed, not only must
the acts concerned „amount to a settled practice‟, but
they must be accompanied by the opinio juris sive necessitatis.”
ICRC Customary IHL Study
Jean-Marie Henckaerts, ICRC: “There are (…) two serious impediments
to the application of these treaties in current armed conflicts which explain
why a study on customary international humanitarian law is necessary and
useful. First, treaties apply only to the States that have ratified them.
(…) Second, humanitarian treaty law does not regulate in sufficient
detail a large proportion of today‟s armed conflicts, that is non-
international armed conflicts, because these conflicts are subject to far
fewer treaty rules than are international conflicts.”
Identified 161 rules applicable in “armed conflict”
17 only in IAC
6 only in NIAC
8 “arguably” in NIAC (in addition to in IAC)
ICRC Customary IHL Study, Cont‟d
Initial U.S. criticisms:
1. “[F]or many rules proffered as rising to the level of customary international law,
the State practice cited is insufficiently dense to meet the „extensive and
virtually uniform‟ standard generally required to demonstrate the existence of
a customary rule.”
2. “The initial U.S. review of the State practice volumes suggests that the Study
places too much emphasis on written materials, such as military manuals
and other guidelines published by States, as opposed to actual operational
practice by States during armed conflict.”
3. “[T]he Study gives undue weight to statements by non-governmental
organizations and the ICRC itself (…).”
4. “[A]lthough the Study acknowledges in principle the significance of negative
practice, especially among those States that remain non-parties to relevant
treaties, that practice is in important instances given inadequate weight.”
5. “Finally, the Study often fails to pay due regard to the practice of specially
affected States.”
General Principles
Malcolm N. Shaw, International Law (5th Edition), 2003:
“There are fewer decided cases in international law than in a
municipal system and no method of legislating to provide rules
to govern new situations. It is for such a reason that the
provision of „the general principles of law recognised by
civilised nations‟ was inserted into article 38 as a source of law,
to close the gap that might be uncovered in international
law and solve this problem which is known legally as non liquet.”
Writings and judicial decisions
Subsidiary means
Quality, relevance of judicial decisions, then writings (of learned
publicists)
Hierarchy?
Question of hierarchy:
Presumed hierarchy? For practical purpose?
Peremptory norms/jus cogens
General principles – gap filling?
Desuetude
Lex posterior derogat priori
But Lex posterior generalis non derogat priori speciali
Lex specialis derogat legi generali
UN Charter, Article 103
In the event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the
present Charter shall prevail.
Peremptory norm
Originally based in natural law theory (morality? certain basic
principles)
“A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international
law is a norm accepted and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.” VCLT, Art. 53
Examples?
Prohibition of the use force, genocide, slavery, racial
discrimination, violation of right to self-determination
1951 Refugee Convention
Refugee definition
“As a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.” Art. 1(A)(2)
Non-refoulement, Article 33
“No Contracting State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion.”
Definition of IDPs
IDPs are “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”
UN Guiding Principles on Internal Displacement
Introduction, para. 2
Two key elements:
1) The coercive or otherwise involuntary character of movement.
2) The fact that such movement takes place within national borders.
International Disaster Response Law?
UN Charter
Art. 2(1): The [UN] is based on the principle of the sovereign equality of all its Members.”
Art. 2(7): Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state.
Cooperation
“[S]tates have the duty to cooperate with one another, irrespective of the
differences in their political, economic, and social systems, in the various
spheres of international relations, in order to maintain international and
security and to promote international economic stability and progress, the
general welfare of nations and international cooperation free from
discrimination based on such differences . . .” UN GA Res. 2625 (1970)
“To achieve international co-operation in solving international problems
of an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion; and
To be a centre for harmonizing the actions of nations in the attainment of
these common ends.” UN Charter, Art. 1
IHRL
Human rights are founded on respect for the dignity and worth of each
person. International human rights law is a set of international rules,
established by treaty or custom, on the basis of which individuals and groups
can expect and/or claim certain behavior or benefits from governments.
Human rights law therefore places an obligation on states to act in a particular
way and prohibits states from engaging in specific activities. An important
function of human rights law is to enable individuals and groups to take
positive action to redress violations against their internationally recognized
rights. IASC document, 2003
International Bill of Human Rights
UDHR
ICCPR and ICESCR
Optional Protocol to the ICCPR,
IHRL
“All human beings are born free and equal in dignity and rights”
UDHR
“Rights derived from the inherent dignity of the human person”
ICCPR
“Rights which are fundamental and essential for human-well
being” Henkin
Positive v. natural law
Human rights discourse is “dynamic,” with a “margin of
appreciation”
Negative v. positive right
Derogation (ICCPR, Art. 4)
1 . In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely
on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may
be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation
shall immediately inform the other States Parties to the present Covenant,
through the intermediary of the Secretary-General of the United Nations, of
the provisions from which it has derogated and of the reasons by which it was
actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.
Non-derogable Rights
Article 4, ICCPR (1966)
Right to life
Prohibition of torture or cruel, inhuman or degrading
punishment, or of medical or scientific experimentation
without consent
Prohibition of slavery, slave-trade and servitude
Prohibition of imprisonment because of inability to fulfill a
contractual obligation
The principle of legality in the field of criminal law
The recognition of everyone as a person before the law
Freedom of thought, conscience and religion
Lex specialis – ICJ
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996)
“The Court observes that the protection of the [ICCPR] does not cease in
times of war, except by operation of Article 4 of the Covenant whereby
certain provisions may be derogated from in a time of national
emergency. Respect for the right to life is not, however, such a provision.
In principle, the right not arbitrarily to be deprived of one's life applies
also in hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable lex specialis,namely, the law applicable in armed conflict which is designed to regulate
the conduct of hostilities. Thus whether a particular loss of life, through
the use of a certain weapon in warfare, is to be considered an arbitrary
deprivation of life contrary to Article 6 of the [ICCPR], can only be
decided by reference to the law applicable in armed conflict and not
deduced from the terms of the Covenant itself.” (para. 25)