RUG public international law final 24-25 | Quizlet

IRAC method

A method used to examine legal cases:

I - Issue.

R - Rule.

A - Analysis.

C - Conclusion.

History of international law

European colonialism and political interactions have shaped international law throughout history, notably with:

1. Peace of Westphalia (1648).

2. Hugo Grotius.

3. Congress of Vienna.

4. Positivism.

5. League of Nations.

Peace of Westphalia

Reaffirmed the principle of state sovereignty.

Involved two wars:

1. 80 years war between the Netherlands and Spain.

- Treaty of Münster.

2. 30 years war between the Protestants and Christians.

- Treaty of Münster.

- Treaty of Osnabrück.

What ideas developed?

- Jean Bodin's ideas of sovereignty were put into practice.

- The sovereign state is the basis of the law.

- Reaffirmed the notion that the state is independent, sovereign, and cannot be interfered with (in theory).

Hugo Grotius

The father of international law.

What did he differentiate between?

1. Ius naturale (natural law).

- Universal, unalienable, and eternal laws that existed within nature.

2. Ius gentium (erga omnes).

- Purely a human creation subject to change and variable from place to place.

What did he do?

- He emancipated natural law from canon law.

- Secular authority prevails over ecclesiastical authority

Congress of Vienna

17th, 18th, and 19th Centuries.

What happened?

- There was a shift from:

- Feudal and city states to nation states.

- Imperialism to colonialism.

- Natural law to positive law.

What was it?

- An agreement between European states to intervene in order to maintain peace.

- This assumes that states that are stronger and more powerful have a responsibility to keep the peace among smaller and less powerful states.

Positivism

What is it?

- A doctrine that man-made law is above any natural law.

- Natural law is not a valid source of international law.

What ideas did it reflect?

1. Sovereign equality.

2. Requirement of consent of a state to be bound by an obligation.

3. Freedom of a state from interference by another state in its internal affairs.

4. Entitlement of a state to ensure its survival or self-preservation, including by acts that might breach international law.

The League of Nations

What was it?

- The first interstate organisation that wanted all states in the world to be a part of it.

- A group of independent sovereign states working together.

What rules did it include?

- A cooling period before taking a decision to go into war.

- A responsibility from other states to severe all economic and political partnerships with the state going to war (sanctions).

Purposes of international law

The regulation of international relations.

- Previously, this was exclusively between states.

- Currently, this is between a different number of actors.

Values of international law

1. International peace.

2. International order.

3. International justice.

4. Human rights.

5. Democracy.

6. Free trade/development.

Principles of international law

1. Independence of states.

2. Principle of consent - article 2 UN Charter.

3 Sovereign equality - Article 2(1) UN Charter.

4. Non-interference in internal affairs.

5. Horizontal system of governance.

6. Decentralised law-making procedures.

Critiques of international law

1. Post-colonial/decolonisation.

- International law maintains Eurocentric ideas of superiority by defining post-colonial states as 'third world' (much like how they defined states as 'civilised/uncivilised').

2. Feminist approach.

- International law supports gendered hierarchies of oppression.

3. Marxist approach.

- International law is focused on and reflects capitalist ideas of liberalism.

Subjects of international law

Definition as per the ICJ Reparation Advisory Opinion:

- To be a subject of international law is to have international legal personality.

Subjects include:

1. States.

2. International organisations.

3. Individuals.

4. Peoples.

5. Multinationals corporations.

6. Armed Opposition Groups

International legal personality

What is it?

The ability to have rights and obligations under international law which is made effective through recourse to international legal procedures.

Erga omnes obligations

What is it?

States have certain obligations of international law that are above any of their national law and owed to the international community as a whole.

How were they established?

- Over time even as customary international law as well.

- Barcelona Traction, case, ICJ.

- Armed activities in Congo, case, ICJ.

Examples:

1. Prohibition of aggression or aggressive force.

2. Prohibition of genocide.

3. Prohibition of slavery.

4. Prohibition of apartheid and racial discrimination.

5. Prohibition of crimes against humanity.

6. Prohibition of torture.

7. Right to self-determination.

Jus cogens

What is it?

The principles that form the norms of international law deemed so fundamental that they cannot be set aside.

Effects:

1. Non-derogation.

- Article 64 VCLT.

2. Universally applicable.

- Article 53 VCLT.

3. Non-recognition of breaches of jus cogens.

- 'Construction of a Wall in Occupied Palestinian Territory Advisory Opinion' (par. 136).

- Articles 65-66 VCLT.

State definition

A nation or territory considered as an organised political community under one government.

Statehood

What dimensions does it have?

- Jean Bodin thought statehood was linked with sovereignty and had two dimensions:

1. Internal sovereignty.

- A person or body of persons claiming authority over others within a territory.

2. External sovereignty.

- The denial of a higher authority so that the state is not subject to an outside higher authority.

Sovereignty:

- An attribute of statehood as per mutual recognition under Article 2(1) UN Charter.

Statehood criteria:

- Montevideo Convention (Article 1):

1. Permanent population.

2. Defined territory.

3. Effective government.

4. Capacity to enter into international relations.

Statehood criteria

Article 1 Montevideo Convention.

1. Permanent population.

- No minimum requirement for the size of a population.

- No need for continuous residence according to the 'Western Sahara Advisory Opinion'.

2. Defined territory.

- The size of land does not matter, neither do any disputes regarding exact borders.

- Maritime zones are calculated by land, therefore a territory cannot consist of merely sea.

- This can be done either by cessation, discovery, or annexation.

3. Effective and stable government.

- Island of Palmas case discusses requirements of effectiveness.

- An authority able to exercise stable and effective governmental authority over its population.

- There is no requirement for the form and nature of this government.

- There must be continuity, meaning that the state must be able to survive outside the present administration/government.

- No dependence on foreign troops.

4. Capacity to enter into relations.

- A state must be independent and thus capable to enter into relations with other states.

- The 'Western Sahara Advisory Opinion' discusses independence and self-determination.

- The Kosovo advisory opinion discusses declarations of independence.

- The simple fact of having relations does not necessarily fulfil this criteria and you need diplomatic ties according to Article 2 Montevideo Convention.

- A legal requirement rather than a factual requirement, the following two theories of recognition apply:

1. Constitutive theory.

2. Declaratory theory.

Acquisition and loss of territory

1. Cession.

2. Accretion/erosion.

3. Discovery/occupation.

4. Annexation.

5. Incorporation.

6. Dissolution.

7. Continuity.

8. Secession.

Cession of territory

What is it?

- When one state purchases territory from another.

- This is a peaceful exchange of territories for value.

Applicable principles:

1. The acquiring state cannot obtain more rights than the ceding state had.

2. The acquiring state must respect the rights of third-party states.

3. Modern purchases must have due regard to the principle of self-determination.

Examples:

- The US purchasing Alaska.

- Hong Kong lease agreement.

Accretion/erosion of territory

What is it?

- New land is created by nature.

- This can be invoked when new islands are created, or a river forming the boundary between two states shifts.

- However, this does not cover violent changes to territorial boundaries such as storms or natural disasters.

Terms:

1. Accretion - a state gains land through a natural process.

2. Erosion - a state loses land through a natural process.

Discovery/occupation of territory

The 'Island of Palmas case' applies:

- Discovery alone is not enough as this merely grants an inchoate title.

- 'Effective control' is necessary to acquire a territory.

Annexation of territory

What is it?

- The forcible acquisition of territory

Legality?

- Annexation of a territory is considered illegal under public international law.

Examples:

- Russia with Crimea.

- Indonesia with East Timor.

- Iraq with Kuwait.

Incorporation of territory

What is it?

- Unlike annexation, the forcible acquisition of territory, this refers to the consensual acquisition of territory.

Examples:

- South Yemen becoming one territory.

Dissolution of territory

What is it?

- When a state splits into two or more new entities, with new international legal personalities, meaning they do not take on the rights and obligations of the former state.

Example:

- Czechoslovakia and Yugoslavia -> Czechia and Slovakia.

Continuity of territory

What is it?

- When a state splits into new entities, but one of the entities retains the international legal personality of the old state, meaning they do take on the rights and obligations of the former state.

Example:

- USSR -> Russia.

Secession of territory

What is it?

- The unilateral withdrawal of a region to form a new state.

The 'Secession of Quebec case' applies:

1. The principle of effectivity is discussed.

2. The principle of effectiveness is discussed.

3. The right to self-determination is discussed.

Recognition of statehood

What is it?

- The ability for other states to recognise a state as such.

- Two theories are relevant:

1. Constitutive theory.

2. Declaratory theory.

Constitutive theory on statehood

What is it?

- Recognition is constitutive and performative (required) for statehood.

- This theory leads to incoherent results as it depends on who does and does not apply this theory.

Flaws?

- How many states are needed for recognition? Is there a definitive decider?

- For example, Israel is only recognised by 165/193 UN Members.

What does it lead to?

- Schrodinger's cat/state - the state does and does not exist at the same time.

Declaratory theory on statehood

What is it?

- Recognition is not required for valid statehood as long as the state meets other substantive criteria such as Article 1 Montevideo Convention.

- This is the dominant view in international law as explicitly outlined in Article 3 Montevideo Convention.

Practicality?

- Reflects the international community's belief that a state fulfils the relevant criteria.

- Allows the state to interact within the international community.

The dilemma of unrecognised statehood

What is it?

- This dilemma reflects the complex interplay between effective control (de facto statehood) and the lack of legal acknowledgment (de jure recognition), creating unique challenges for unrecognised states in maintaining their existence and pursuing long-term stability.

Examples:

1. Kosovo.

- Declared independence, was admitted to the IMF and World Bank, and led to the ICJ stating their declaration of independence as not contrary to international law.

2. Palestine.

- Was admitted to UNESCO, granted non-member observer state status in the UNGA, ratified IHL and IHR treaties, and ratified the Rome Statute of the ICC.

Recognition of a government

Not to be confused with recognition of a state.

What is it?

- It is the acceptance that a government has the authority to govern or control the territory and population of a state, with the recognising state accepting that it will deal with that government as the governing authority of the state.

- Recognition of a government is usually only an issue when there has been a drastic change of government, such as a coup d'etat or a revolution.

Types of recognition:

1. De jure recognition.

- A formal and legal acknowledgment of a government or state as legitimate under international law.

2. De facto recognition.

- The provisional and informal acknowledgment of a government or state, based on its actual control over a territory or population, without granting full legal endorsement

- For example, they cannot claim immunity or cannot enter into many diplomatic relations with other states.

The right to self-determination

What is it?

- The right of all peoples to freely determine their political status and pursue their economic, social, and cultural development.

- Reflected in a number of UNGA Resolutions, Article 1(2) UN Charter, and Article 1 ICCPR.

When did it emerge?

- During the decolonisation process providing the basis for colonised peoples (mostly in Africa and Asia) to declare their independence from European colonial powers.

- The most important jurisprudence for this is the 'Secession of Quebec case'.

Who has this right?

- The 'Secession of Quebec case', 'Kosovo Advisory Opinion', and 'Western Sahara Advisory Opinion' apply.

- The peoples, communities that do not have their own state, or colonially oppressed peoples have this right.

The content of the right to self-determination

Discussed in the 'Secession of Quebec case'.

The content:

- The Supreme Court of Canada found that an external right to self-determination arises only when it is not possible to internally do so. There are two dimensions of the right to self-determination.

The two dimensions:

1. Internal self-determination.

- When a people pursue their political, economic, social, and cultural development within the framework of an existing state without outside interference.

2. External self-determination.

- When a people pursue their political, economic, social, and cultural development by seceding from the 'mother-state' which oppressed them and create their own state.

Requirements for the right to self-determination

Discussed in the 'Secession of Quebec case' and 'Kosovo Advisory Opinion'.

'Secession of Quebec case' requirements:

- Unilateral secession can only be utilised under international law under "extreme cases, and even then, under carefully defined circumstances".

- These "extreme cases" include a people being subject to colonial rule or egregious human rights violations.

'Kosovo Advisory Opinion' requirements:

- Gross egregious human rights violations.

- Other concepts, such as territorial integrity as found in the advisory opinion.

Barcelona Traction case

Discussed obligations erga omnes and jus cogens norms.

Facts:

- A legal dispute over whether Belgium had the legal standing to exercise the diplomatic protection of shareholders in a Canadian company regarding measures taken against that company which was located in Spain.

Rule:

- A distinction was made between a state's obligations owed towards the international community as a whole (obligations erga omnes) and obligations owed towards a specific state.

- Obligations erga omnes (linked to peremptory norms or 'jus cogens') are the concern of all states who can be seen as having a legal interest in the protection of such obligations.

Why was this important?

- This highlights the beginning of the definition of jus cogens (peremptory norms of general international law).

Judgement:

- Belgium was found to not have the legal standing to exercise diplomatic protection of the shareholders.

Western Sahara Advisory Opinion

Facts:

- The ICJ recognised the nomadic Sarahawi population's link to the territory of Western Sahara despite their seasonal movements/migration to Morocco and Mauritania.

Rule:

- Article 1 UN Charter and General Assembly Resolution 1514.

- The application of the right to self-determination requires a free and genuine expression of the will of the peoples concerned.

Why was this important?

- Established the right to self-determination as a right and was used in this case to justify their independence.

- Established that there is no requirement as to the size or composition of a population regarding statehood criteria.

Judgement:

- The ICJ allowed them independence from Morocco.

Blaskic case

Facts:

- This was a criminal trial for people responsible for human rights violations in former Yugoslavia.

- It discussed whether international tribunals (such as the ICTY) can issue binding orders upon states.

Rule:

- An international tribunal can demand the cooperation of states in a criminal trial against an individual in order to provide witness evidence.

Why was this important?

- It allowed an instance in which an international tribunal was able to issue a binding order upon a state(s), albeit it did use the authority of the UNSC to do so.

Judgement:

- While under CIL nobody can command a state, the UNSC urged Member States of the UN to comply with the orders of this international tribunal.

Secession of Quebec case

Facts:

- Quebec wanted to secede from Canada.

Rule:

1. Principle of effectivity - actions or rules should be judged by how well they work in real life.

2. Principle of effectiveness - an illegal secession attempt could attain valid legal status if it is recognised internationally.

3. Right to self-determination - unilateral secession can only be utilised under "extreme cases, and even then, under carefully defined circumstances".

- "Extreme cases" include colonial rule or egregious human rights violations.

Judgement:

- The Supreme Court of Canada ruled that Quebec did not have the unilateral right to secede under Canadian law.

- However, it stated that if a clear majority of Quebec voters chose for independence in a referendum, then Canada would be obligated to negotiate the terms of secession in accordance with democratic principles and the rule of law.

Principle of effectivity

Actions or rules should be judged by how well they actually work in real life. In simple terms, it’s about making sure that laws, treaties, or agreements are applied in a way that actually achieves their purpose, rather than just looking good on paper.

Example:

- 'Secession of Quebec case'.

Kosovo Advisory Opinion

Facts:

- Kosovo unilaterally declared independence from Serbia.

Rule:

- Under international law, there is no prohibition nor allowance for the unilateral right to self-determination.

- Thus, it must be decided on a case to case basis.

Judgement:

- The unilateral declaration of independence was found to be lawful on the basis of egregious human rights violations.

- The ICJ concluded that Kosovo's declaration did not violate international law as there was no prohibition nor allowance, and it did not breach Serbia's territorial integrity.

- However, the ICJ did not rule on the legitimacy of Kosovo's independence itself, only on the right to self-determination.

Construction of a Wall in Occupied Palestinian Territory Advisory Opinion

Facts:

- The ICJ was asked to provide an advisory opinion on the legality of Israel's construction of a wall in the occupied Palestinian territory.

Rule:

- The ICCPR and other human rights conventions were applicable and were violated.

- The ICJ considered whether the construction violated the Fourth Geneva Convention, human rights law, and international law governing occupation and self-determination.

Judgement:

- The ICJ ruled that Israel's construction of the wall was illegal under international law as it disrupted Palestinians' life and violated their rights.

- Though the ICJ called for the cessation, dismantling, and reparation of the wall, other states chose not to recognise the situation.

Island of Palmas case

Facts:

- The United States and the Netherlands were disputing over who had a claim of sovereignty over some small islands found off of the coast of the Philippines.

- The US argued that they concluded a treaty with Spain, so their claim was based on discovery.

- The Netherlands argued that they exercised sovereignty and effective control within the disputed territories.

Rule:

- The ICJ defined sovereignty as: the right to exercise functions of a state to the exclusion of other states within a territory.

- A test was established:

1. What is essential is the continuous and peaceful display of actual power/sovereignty in the contested region.

Judgement:

- While not numerous and admittedly showing gaps, the Netherlands did display continuous and peaceful sovereignty in the disputed region therefore their claim was substantiated.

Reparations for Injuries Advisory Opinion

Facts:

- The ICJ was asked to provide an opinion on whether the UN was entitled to seek reparations from the Israeli government's wrongful actions during the Suez Crisis of 1956.

- Israel, along with France and the UK, invaded Egypt and the UN sought compensation for damages caused during the invasion.

Rule:

- Characterised international legal personality by two competences:

1. Capacity to bear international rights and obligations.

2. Capacity to maintain those rights by bringing international claims.

- The ICJ also makes it clear that not all entities with international legal personality are equal in the extent of their international rights and obligations.

Principle of implied powers:

- While not explicitly given in the constituent treaty, powers are implied in order to allow international organisations such as the UN to achieve its objectives as stated in the treaty.

Judgement:

- The ICJ ruled that the UN had the right and the capacity to request reparations since it was a legal entity with rights and duties under international law to do so.

S.S. Lotus case

Facts:

- A French national was charged with a crime under Turkish law, which occurred between two vessels at sea.

- France argued that they should base it on a title of jurisdiction according to international law.

Rule:

- The Lotus Principle was established: sovereign states may act in any way they wish as long as they do not violate fundamental obligations under international law.

- Highlighted that consistent state practice alone is insufficient without opinio juris.

Judgement:

- The Court held that there was no rule of international law prohibiting Turkey from exercising jurisdiction over the French officer involved in the collision on the high seas.

Sources of law

Article 38(1) Statute of the ICJ.

Primary sources:

1. International treaties/conventions.

2. Customary international law.

3. General principles of law.

Subsidiary/secondary sources:

4. Judicial decisions.

5. Teachings of the most highly qualified publicists.

Is there a hierarchy of sources of law?

Hierarchy?

- Article 38(1) Statute of the ICJ suggests that primary sources enjoy primacy over subsidiary/secondary sources.

Reality?

- It is important to keep in mind that primary sources are equally capable of generating legal norms of comparable weight and do overlap and coexist with one another without hierarchy.

- The 'Military and Paramilitary Activities in and against Nicaragua case' discusses this in paragraph 176.

- The 'North Sea Continental Shelf cases' discusses this.

Practicality?

- In cases of a conflict of sources of law, the following principles may apply:

1. Lex specialis derogat legi generali - specific law overrides general law.

2. Lex posterior derogat priori - younger law overrides older law.

Concepts of sources of law

Concept of consent.

- All international law derives from the consent of states, thus, a source can only be legally binding upon a state if it had consented for it to be so.

Material v formal consent:

1. Formal sources.

- Refers to the methods or processes of law-creation which are legally binding on states, and whether the consent was obtained through legally recognised sources.

- Formal sources include the primary sources of law.

2. Material sources.

- Refers to the non-binding sources, the substance and quality, of consent given and whether it was given freely and with full awareness.

- Material sources include the subsidiary/secondary sources of law such as:

1. Judgements of international courts and tribunals.

2. Study of the International Law Commission (ILC).

3. Resolutions of political organs.

4. Textbooks on international law.

Vienna Convention on the Law of Treaties

The most important international treaty/documents relating to the law of treaties.

What is it?

- A codification and reflection of the international customary law surrounding treaties.

Treaties

Legal basis.

- The Vienna Convention on the Law of Treaties (VCLT).

Definition.

- Article 2(1)(a) Vienna Convention on the Law of Treaties.

- "An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

What if one state in a dispute is not party to this treaty?

- If there is a conflict with a state that has not ratified this treaty, customary law must be used.

What about it's form?

- Discussed in the 'Qatar v Bahrain case' and the 'Cameroon v Nigeria case'.

- The form of a treaty can even be minutes of an international meeting.

Treaty-making process

Stage one - formalities to enter into treaties.

- Requires individuals/representatives that have 'full powers' to enter into treaties.

Stage two - negotiations.

- Negotiations, initiations, and signatures occur.

Stage three - consent to be bound.

- Article 11 (referencing Articles 12-15) VCLT provides the most common ways to provide consent to be bound by a treaty.

- Article 11 allows for:

1. Signature (Article 12 VCLT).

2. Exchange of instruments (Article 13 VCLT).

3. Ratification, acceptance, or approval (Article 14 VCLT).

4. Accession (Article 15 VCLT).

5. Other means if so agreed.

Stage four - entry into force.

- Article 24 VCLT.

- A treaty enters into force in such manner and upon such date as negotiated or agreed upon by the states.

- Article 18 VCLT provides an obligation not to defeat the object and purpose of such a treaty prior to its entry into force.

Stage five - reservations.

- Article 2(1)(d) VCLT.

- Unilateral acts through which states choose to exclude or modify the legal effect of a given provision when consenting to be bound by treaty obligations.

Reservations to a treaty

Article 2(1)(d) VCLT.

A unilateral act through a legal instrument which allows a state to exclude itself from being bound by or modify certain aspects of a treaty.

Certain reservations are considered to be impermissible, per Article 19 VCLT, these include:

1. Reservations prohibited by a treaty.

- UNCLOS totally prohibits reservations.

2. Treaty provides for only specific kinds of reservations.

- ECHR prohibits reservations of general character.

3. Reservation is incompatible with the object and purpose of a treaty.

Objecting to reservations

Article 20 VCLT.

States can object to reservations made by other states. There are:

1. Soft objections.

- In this case, the contested provisions do not apply, but the rest of the agreement does.

2. Hard objections.

- The objecting state can take the position that the reservations are so fundamental that they render the treaty inapplicable between the two states.

Invalidity of a treaty

Circumstances in which the legal obligations of a treaty were considered to never have been legally valid. There are two categories of invalid treaties:

1. Relative grounds - Articles 46-50 VCLT.

- These are mistakes or problems in how the agreement was made making the treaty voidable.

- The treaty isn’t automatically canceled and it’s up to the country that was affected to decide if they want to cancel it or keep it.

2. Absolute grounds - Articles 51-53 VCLT.

- Leads to the absolute nullity of a treaty for all parties, and will be treated as though the treaty never existed. This makings a treaty void.

Termination of a treaty

Deals with the ways in which parties can cancel the legality of a treaty. There are two categories of terminated treaties:

1. Termination by operation - Article 54 VCLT.

- When a treaty provides a provision outlining how it can be terminated, then it applies. Otherwise, the parties may terminate the treaty by mutual agreement.

2. Termination by circumstance - provides three grounds of termination:

a. Material breach - Article 60 VCLT.

- One party has violated important obligations and other parties are similarly entitled to suspend their obligations subject to conditions in the VCLT.

b. Impossibility of performance - Article 61 VCLT.

- Essentially a force majeure clause, which allows states to excuse themselves if obligations are impossible to meet.

c. Change of circumstances - Article 62 VCLT.

- Exceptional grounds which is to be applied very strictly where there has been a change of circumstances which were fundamental to the consent of the states to be bound by a treaty, this change must be:

a. Fundamental.

b. Unforeseeable.

c. Have the effect of radically transforming existing treaty obligations.

Treaty interpretation

Articles 31-33 VCLT.

Three schools of treaty interpretation:

1. Objective - grammatical interpretation.

- Focus is on the literal meaning of the text.

2. Subjective - founding-father approach.

- Focus is on the intentions of the original drafters of the text.

3. Purposive - teleological approach.

- Focus is on interpreting the text in a manner that supports the object and purpose that a treaty seeks to achieve.

Two competing principles of interpretation:

1. Principle of contemporaneity.

- The meaning of texts should remain as they were when the treaty was drafted.

2. Evolutive interpretation.

- The meaning of texts should change as society develops. This focuses on the intention of the drafters, and the object and purpose of the text.

Full powers

Article 7 VCLT.

The authority of an individual to represent and bind a state. These powers exist in a few circumstances:

1. The person presents a document proving full powers.

2. The practice of the state shows intention to award a person full powers.

3. Heads of State/Government and Ministers of Foreign Affairs.

Hard law

Law that is enforceable and so establishes legally binding obligations.

Soft law

The body of standards, commitments, declarations, policy guidelines, codes of conduct, and other instruments which do not impose legally binding obligations on states.

Principles of treaties

1. Pacta sunt servanda.

- Article 26 VCLT.

- States are bound to fulfil their treaty obligations in good faith.

- Article 18 VCLT provides an obligation not to defeat the object and purpose of such a treaty prior to its entry into force.

2. Consent to be bound.

- Articles 11-15 VCLT.

- As discussed in the 'S.S. Lotus case', it can never be assumed that a state has consented or is obliged under an international agreement.

- Articles 34-38 VCLT says that a state cannot impose or create obligations for third-party states without their express consent to be bound. However, nothing prevents contents of a treaty which are also custom from being binding on a third-party state, which is true of the VCLT itself as well.

Customary international law

The oldest and most fundamental form of international law, as evidence of a general practice accepted as law.

Two requirements as discussed in the 'North Sea Continental Shelf cases':

1. State practice (usus).

- The objective element which must meet the following four elements:

a. Widespread practice - no exact threshold has been placed.

b. Representative practice - the concept of 'specially affected states', meaning the practice of some states is more relevant than others depending on how involved they are and the circumstances.

c. Consistent practice - usually customary international law takes a long time to materialise, but the highly-controversial concept of 'instant custom' is also applicable in some cases.

d. Uniform practice - states must adhere to the customary international law uniformly, and deviations from the rule are fine as song as they are recognised as violations and not creations of a new rule.

2. Opinio iuris.

- The subjective element.

- It is very hard to prove the motivation of states, and is only looked at when states are acting due to non-legal motivations.

Avoiding customary international law

Three ways to avoid customary international law rules:

1. Persistent objectors.

- This allows states to exempt themselves from application of a new custom when they persistently and explicitly object to the custom during the period of time that the custom is being formed.

- This does not apply to jus cogens obligations.

- The 'Fisheries case' stipulated that instances of state conduct inconsistent with a given rule should generally be treated as breaches of that rule, not as indications of the recognition of a new rule.

2. Subsequent objectors.

- When a state has accepted the original custom, but objects to proposed changes to that rule or after its formation.

3. Particular custom.

- Rules of customary international law that only apply to a subset of states, also called 'regional customs'.

Debates surrounding customary international law

1. Decisions of international tribunals.

- Some have argued that the decisions of international tribunals can serve as evidence of state practice or opinio iuris, though this argument can go both ways.

- The pleadings before the tribunal can be seen as state practice, not the decisions of tribunals.

2. Silence as practice.

- Some have argued that an absence of action is evidence of state practice which can be used to establish customary international law rules.

- Generally, silence is only evidence of state practice if it is done intentionally, otherwise it is not.

Wise custom v wild custom

Coutume sage v coutume sauvage.

1. Coutume sage (wise custom).

- Refers to traditional, slow-developing customary international law that emerges over time through consistent state practice and opinio juris.

2. Coutume sauvage (wild custom).

- Represents a more dynamic and rapid form of customary law formation, often driven by urgent needs or political will rather than long-standing practice.

General principles of international law

Functions.

- To avoid gaps in the international legal system and avoid non-liquet situations in which the ICJ is unable to give a judgement due to such gaps.

Two step process to identifying general principles:

1. Widespread recognition of the principle in national legal systems.

- This requires comparative analysis of the various legal systems in the world.

2. Suitability of application to the international legal system.

- It must be compatible with the fundamental principles of international law.

Examples:

- The ILC has refused to publish an exhaustive list of general principles, however, they are principles common to all domestic legal systems such as:

a. Obligation to make reparations for breaches of an obligation.

b. Recognition of the estoppel principle.

c. No abuse of rights and the requirement of good faith.

d. Equity:

d.1. North Sea Continental Shelf cases - the Court declared that the states should be effected 'in accordance with equitable principles'.

North Sea Continental Shelf cases

Facts:

- The Netherlands, Germany, and Denmark all had a dispute over the delimitation of the continental shelf in the North Sea.

- The Netherlands and Denmark were bound by the convention on the continental shelf.

- Germany was not bound by the same convention and thus did not follow the same rule.

Rule:

- Used the general principle of equity as the ICJ declared that the delimitation of the maritime boundaries between the three states should be effected 'in accordance with equitable principles'.

- Discussed the formation of a customary international rule:

- State practice (objective element).

- Opinio juris (subjective element).

Judgement:

- Germany was not bound by the same convention.

ICJ Nuclear Tests case

Facts:

- France was conducting nuclear tests in the pacific ocean and there was nuclear fallout in Australia and New Zealand.

- The issue arose as to whether unilateral declarations made by France could be regarded as a source of international law.

- A number of states issued by the government of France, including the President, were made stating their intention to halt these tests.

Rule:

- Unilateral declarations can be regarded as a valid source of international law, creating obligations upon those expressing intention.

Judgement:

- The unilateral act of the President making a statement which issued his intentions created an obligation on France, of which Australia was entitled to invoke.

Military activities in and against Nicaragua case

Facts:

- Dealt with a number of issues of international law related to USA's support of the right-wing paramilitary group in Nicaragua.

Rule:

- There is leeway in customary international law, however, inconsistent state practice should be viewed as breaches of a custom, not as a formation of a new custom.

- For use of force in self-defence, there are grave instances (which allow self-defence) and less grave instances (which do not allow self-defence).

The 'effective control test' was established:

1. There must be direct or enforced perpetration of the wrongful act by a state (this is a very strict criteria for determining whether an act is attributable to a state).

2. For acts of mercenary groups or other organs to be attributable to a state, there must be evidence of 'effective control' of the military and paramilitary activities of which the alleged violations were committed.

The use of force was discussed:

- Grave uses of force warrant self-defence.

- Less grave uses of force do not warrant self-defence.

ICJ Legality of the threat or use of nuclear weapons Advisory Opinion

Facts:

- Many states implement the illegality of nuclear weapons as a custom through state practice and opinio iuris.

- However, at the same time there are many states practicing the doctrine of deterrence and argue that the fact that there hasn't been any use of nuclear weapons since world war 2 is not proof of a custom, but rather the circumstances to use them 'justifiably' have not risen.

Rule:

Established the following rules for opinio iuris:

1. State practice is evidence of opinio iuris.

2. UNGA Resolutions can sometimes serve as establishing a custom, however, the need for this can also be proof of a lack of a custom.

Established the following two fundamental/cardinal principles of IHL:

1. Prohibition of weapons that are indiscriminate.

2. Prohibition of weapons that cause unnecessary suffering or superfluous injury.

Judgement:

- The ICJ substantiated that whilst there was evidence of opinio iuris and state practice to claim that the non-legality of nuclear weapons is evidence of a custom, there is also opposing opinio iuris.

- There is no explicit allowance nor prohibition of the use of nuclear weapons.

WHO Legality of the use by a state of Nuclear Weapons in Armed Conflicts case

Rule:

- Discussed the following principles relevant to international organisations:

1. Principle of specialty:

- International organisations have international legal personality intra vires, as long as they act within the scope of their purpose.

2. Principle of attribution of powers:

- The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments.

Fisheries case

Rule:

- Discussed the concept of a persistent objector in regards to avoiding customary international law, as follows:

- A small degree of inconsistency does not prevent the emergence of a custom when it is outweighed by a large(r) amount of consistent practice.

Maritime delimitation between Qatar and Bahrain case

Facts:

- The case revolved around the dispute of whether minutes of a meeting count as an international agreement.

Rule:

- The ICJ substantiated that international agreements can take any form, such as a letter in the minutes of a meeting in this case.

- The intention to make the agreement does not matter if other evidence compels otherwise.

- While registration with the Secretariat of the UN is necessary for the agreement to be invoked before a UN organ, it is not necessary to do that in order to establish the binding legality of the agreement on the parties.

Judgement:

- Minutes of a meeting can indeed constitute as a valid international agreement capable of creating international obligations as per Article 2(1)(a) VCLT.

Belilos v Switzerland case

Facts:

- Concerned the validity of reservations.

- This case dealt with a woman's complaint, in which Switzerland argued fell within an 'interpretative declaration' it had filed when ratifying the ECHR.

Rule:

- Article 19 VCLT on reservation cannot go against the purpose or object of a treaty.

- The declaration was seen as putting forward consent to be bound by the treaty, and accordingly, constitutes a reservation in conformity with Article 57 ECHR.

- An 'interpretative declaration' can be constituted as a reservation.

Judgement:

- The interpretative declaration in this case was enough to satisfy as a valid reservation, yet it was dismissed due to not meeting the requirements set under Article 64 ECHR.

Gabcikovo-Nagymaros Project case

Facts:

- Deal with a treaty that Hungary and Slovakia had concluded to build a dam.

- However, Hungary sought to terminate the treaty on a number of grounds after the fall of Yugoslavia, which then continued to become Slovakia retaining its international legal personality.

Rule:

- Hungary's unilateral suspension of its obligations was seen as a breach of the treaty, although they did invoke a state of necessity and the Court did see the environmental damage claimed as valid.

- Reaffirmed the pacta sunt servanda principle.

- The rules of the VCLT were seen as a codification of customary international law.

Jurisdiction

The competence of a state to make, apply, and enforce rules with respect to person and/or objects.

In short:

It is how the state does and is able to exercise its sovereignty.

Forms of international jurisdiction

1. Prescriptive.

- Refers to authority of a state to make rules. This can extend extraterritorially in certain cases where the state has a relevant connection.

2. Adjudicative.

- Refers to the authority of a state to apply rules. This is usually done by bringing an individual before the domestic courts of a state.

- Lotus principle: a state may extend its prescriptive jurisdiction as it wishes as long as it does not violate specific prohibitions under international law..

3. Enforcement.

- Refers to the authority of a state to physically force individuals to comply with the law.

- This can never extend extraterritorially and states must rely on processes such as extradition.

Types of international criminal jurisdiction

Types of prescriptive jurisdiction.

1. Territorial sovereignty.

- Concerns a state's control over the territory and individuals within that territory of a state. There are two distinctions:

a. Objective territoriality - the state where the criminal act is finished in has jurisdiction.

b. Subjective territoriality - the state where the criminal act had started has jurisdiction.

2. Active personality principle.

- For the perpetrator.

- A state may lawfully exercise jurisdiction over its own nationals abroad. To determine nationality, it is:

a. Persons - those holding citizenship and a genuine link of a state (as per the 'Nottebohm case').

b. Companies - the state of incorporation.

c. Vessels - flag-state registration.

3. Passive personality principle.

- For the victim.

- A state may lawfully exercise jurisdiction for crimes committed against its nationals by non-nationals abroad.

- This type of criminal jurisdiction should only be relied upon when the state where the act occurred does not plan on prosecuting the offender.

4. Protective jurisdiction.

- A state may lawfully exercise jurisdiction committed by non-nationals abroad to protect the security of their own vital interests.

- Showcased in the 'Israel v Eichmann case'.

5. Universal jurisdiction.

- A state may lawfully exercise jurisdiction for crimes committed abroad by non-nationals against non-nationals.

- The aim is to uphold the common interest of the international community as a whole, and this type of jurisdiction is reserved for acts such as:

- War crimes.

- Crimes against humanity.

- Genocide.

- Torture.

6. Treaty crimes.

- Refers to conduct stipulated as being criminal in treaties (prohibitions for states under international law).

- Does not refer to criminal responsibility of states, but is about individual criminal responsibility.

Immunity

Deals with states limiting their power to avoid infringing each other's sovereignty. This links to the principle of sovereign equality.

Three distinctions to be made:

1. State immunity.

2. Immunity of state officials.

3. Diplomatic immunity.

State immunity

What is it?

An international obligation on a state to refrain from exercising its adjudicative and enforcement jurisdiction, based on the principle of sovereign equality of states and the principle of non-intervention.

Two types of immunity:

1. Absolute immunity.

- The state is immune to jurisdiction in all circumstances and in relation to all acts.

2. Restrictive immunity approach.

- The state is immune only to acts committed which are directly linked to the exercise of sovereignty.

Two distinctions of acts of states are made per Article 5 UN Charter:

a. Acta jure imperii - public governmental acts.

- This does grant immunity.

b. Acta jure gestionis - private acts of commerce.

- This does not grant immunity.

The two step test to differentiate between official and commercial acts of state

Two things to consider:

1. The nature of the act itself.

2. Whether the act itself may be classified as an act for which a sovereign State may invoke immunity.

Waving state immunity

Articles 7-8 and 19 UN Convention on Immunities.

Immunities belong to the state and only the state can consent to waive such immunities.

Jus cogens v immunities

1. Jones v Saudi Arabia case.

- The Court substantiated that the recognition of immunities, as a procedural bar to the exercise of jurisdiction, does not conflict with the substantive prohibition of torture.

2. Jurisdictional immunities of the State case.

- The procedural and substantive distinction was also adopted by the ICJ in this case.

- The hierarchically superior status of jus cogens norms does not permit a procedural bar of state immunity, at least in civil proceedings.

- Immunities are procedural while jus cogens/peremptory norms are substantive in nature.

Immunity of state officials

Deals with the immunities of people who are understood as 'personifications' of their state and require immunity in order to effectively carry out their functions.

Two types of immunities of state officials:

1. Ratione personae (personal immunity).

- Covers both private and functional acts.

- This kind of immunity applies only to a very limited number of state officials, offering widespread civil and criminal immunity, which according to the 'Arrest Warrant case' includes:

a. Heads of State.

b. Head of Government.

c. Ministers of Foreign Affairs.

2. Ratione materiae (functional immunity).

- Covers only functional acts.

- This kind of immunity deals with when a state official is acting in accordance to their functions. These acts can also be against the orders of their state as long as they are done publicly.

- Functional immunity is not automatic and must be invoked by the sending state.

Immunities of senior and other government figures

1. Serving heads of state.

- Enjoy immunity ratione personae.

- Ex Parte Pinochet No. 3 case.

- Ghaddafi case.

2. Other High Ranking Governmental figures.

- Enjoy immunity ratione personae.

- Arrest Warrant case.

3. State officials acting as such.

- Enjoy immunity ratione personae.

4. Former heads of state and other governmental figures.

- Enjoy immunity ratione personae.

5. High-ranking officials.

- Enjoy immunity ratione personae, but this is only while holding office, even for acts committed before office.

- After their term in office ends, so does this immunity enjoyed by them and they can be tried for private acts.

High ranking state officials

What immunities do they enjoy?

- Enjoy to immunity ratione personae, but this is only while holding office, even for acts committed before office.

Can they be held accountable?

- After their term in office ends, so does the immunity enjoyed by them and they can be tried for private acts.

Serious crimes under international law

Immunity ratione personae?

- There is no exception even for the commission of the most serious crimes, such as the crime of genocide, crimes against humanity, war crimes, etc.

ILC Draft Article 7.

- Immunity ratione personae shall not apply to the exercise of foreign criminal jurisdiction in respect of the following crimes:

a. Crime of genocide.

b. Crimes against humanity.

c. War crimes.

d. Etc.

Diplomatic immunity

What is it?

- Immunities specific to members of diplomatic missions working as representatives of a sending state in a forum state.

When does it apply?

- The rules regarding diplomatic immunity can be found in theVienna Convention on Diplomatic Relations (VCDR).

- Even non-ratifying states are bound by its contents because it reflects customary international law.

- These immunities may be waived by the sending state (Article 32(1) VCDR) or the forum state may at any time declare a diplomat as 'persona non grata' (Article 9 VCDR).

Three benefits/limitations to diplomatic immunities:

1. Articles 29 and 31(1) VCDR - inviolability and immunities of diplomatic staff.

- Enjoy immunity ratione personae.

- Persons are inviolable from civil and administrative jurisdiction and cannot be subject to arrest or detention by the host state.

2. Articles 22 and 24 VCDR - inviolability of premises.

- The premises of a mission are to be inviolable and the host state may not enter or interfere with the premises.

3. Article 41(1) VCDR - abuses of diplomatic privileges.

- Obligations imposed on those enjoying diplomatic immunity not to interfere with the internal affairs of the host state, such as espionage.

- Discussed in the 'Tehran Hostages case' - inviolability is an erga omnes obligation.

Arrest Warrant case

Facts:

- Belgium issued an international arrest warrant on the basis of universal jurisdiction targeted towards the Minister for Foreign Affairs of the Democratic Republic of the Congo.

Rule:

- Established immunity ratione personae for high-ranking officials.

- Universal jurisdiction did not satisfy to override the immunity ratione personae enjoyed by high-ranking officials.

Judgement:

- Sitting foreign ministers enjoy full immunity from criminal jurisdiction and inviolability under customary international law.

- The Court clarified that while universal jurisdiction may allow states to prosecute certain crimes, it cannot be exercised in a way that infringes upon the immunity ratione personae of sitting high-ranking officials.

Jurisdictional immunities of the state case

Facts:

- Italian courts allowed civil claims against Germany for reparations relating to damages caused during World War II despite Germany asserting state immunity under international law.

Rule:

- Immunities are a procedural matter whilst jus cogens are a substantive matter. There is no conflict between the two.

Judgement:

- Reaffirmed the principle that state immunity is a procedural rule that remains intact even in cases involving serious violations of international law or jus cogens norms, as these norms are substantive in nature.

Tehran Hostages case

Facts:

- During the Iranian revolution in 1979, armed Iranian militants stormed the United States Embassy in Tehran taking over 60 American diplomats and citizens hostage.

- Despite being aware of the attack, Iranian authorities failed to intervene or protect the U.S. diplomatic mission. Later, Iranian state organs endorsed and perpetuated the hostage situation.

Rule:

- Articles 22 and 29 VCDR establish the inviolability of diplomatic premises and staff.

- Host states are obligated to protect embassies and ensure the safety of diplomatic agents.

Judgement:

- The VCDR was characterised as a 'self-contained regime' meaning that it outlines rights and obligations, whilst also foreseeing these being abused and specifies the measures which may be employed in that case.

Al-Adsani v United Kingdom case

Facts:

- A dual British-Kuwaiti national, alleged that he was tortured in Kuwait in 1991 by Kuwaiti officials.

- He filed a case which was dismissed in the UK, then filed another one before the ECtHR claiming that the crime of torture is a jus cogens norm and overrides any arguments of state sovereignty and immunity made by the UK in their dismissal of this case.

Rule:

- State immunity is a procedural rule under customary international law that protects states from being sued in foreign courts for acta jure imperii (public governmental acts).

Judgement:

- The ECtHR reaffirmed what the UK substantiated, in that state immunity is procedural and remains intact even when serious violations like torture are alleged.

- The judgment has been criticised for failing to create an exception to state immunity for jus cogens violations, leaving victims like Al-Adsani without a remedy in foreign courts.

Human rights

Article 55(c) UN Charter.

Fundamental freedoms for all without distinction as to race, sex, language, or religion.

Source: UDHR.

Challenges of human rights

1. Limits imposed on human rights.

- There is a preconception that human rights are enablers or conditions to do whatever we want, however, our rights do have some limitations.

2. Denial of extraterritorial effects of human rights.

- Many states believe that human rights (protection) should only apply to states party to the relevant treaties.

3. Denial of applicability of human rights in armed conflicts.

- A lot of states believe that international human rights law do not play a role when combatting terrorism or in situations of armed conflicts.

Generations of human rights

1. First Generation - civil and political rights.

- 'Negative rights'.

- Abstention.

- Source: ICCPR.

2. Second Generation - economic and social rights.

- 'Positive rights'.

- Due diligence.

- Source: ICESCR.

3. Third Generation - collective rights.

- Rights which can only be invoked by a community of people, and not merely by individuals.

- Right to self-determination.

Universal Declaration of Human Rights

What is it?

A non-binding text outlining human rights, but it is reflective of customary international law.

Significance:

1. Golder case.

- The UDHR was used as an interpretational aid to the ECHR.

2. Tehran Hostages case.

- The ICJ invoked the UDHR in interpreting Iran's obligations to the hostages.

Outcome:

While the UDHR is soft law, it has gained considerable traction over time, with the following two being born as a result:

1. International Covenant on Civil and Political Rights (ICCPR).

2. International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Sources of human rights law

1. Universal Declaration of Human Rights (UDHR).

- Non-binding but reflective of customary international law.

2. International Covenant on Civil and Political Rights (ICCPR).

- Civil and political Rights.

3. International Covenant on Economic, Social, and Cultural Rights (ICESCR).

- Economic, social, and cultural rights.

Types of obligations

1. Negative obligations.

- Abstention.

- No cost.

2. Positive obligations.

- Due diligence.

- Resource intensive.

Human rights obligations

1. Obligation to respect.

- To refrain from interfering with the enjoyment of one's right.

2. Obligation to protect.

- To prevent others from interfering with the enjoyment of one's right.

3. Obligation to fulfil.

- To adopt appropriate measures towards the full realisation of one's right.

Elements of human rights

1. Rights.

- Human rights give rights to individuals which states are bound to respect.

- Individuals may make legal claims based on these rights.

2. Plural.

- Human rights addresses a wide range of societal problems and there is no exhaustive list.

3. Universal.

- Human rights exist regardless of whether they are recognised by a state.

4. High-priority.

- Human rights are very serious rights, given high-priority and may trump other legal rules.

Approaches to human rights

1. Universalism.

- Popular in the Global North.

- The mainstream idea that human rights are universal and applicable everywhere as moral norms.

2. Cultural relativism.

- Popular in the Global South.

- The idea that human rights are a Western invention that have been unjustly imposed on other cultures by virtue of Western hegemony.