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)