Legal ICAW - Semester 4

int law rule of law

no one is above the law.

In int law no nation (state) should not follow int law

int law enforcement

enforcement is difficult because no world police. states follow int law voluntarily

int law jurisdiction

a state where the law is current

int law statue law

conventions and treaties

int common law

customary international law

int law sovereignty

authority to make a law, independent government

diplomatic immunity

a form of legal immunity which generally makes diplomates immune from being arrested, searched or prosecuted under country laws

• ensures efficient performance of their functions

non-refoulement

garauntees that no one should be returned to country where they would face torture, cruel, inhuman or degrading treatment or punishment in any other form

• applies to all migrants at all times, irrespective of migration status

international law

the general principles of the law as recognised by civilised nations

jus cogens

a compelling law that overrides any customary law a country has

main forums where int law cases are held

1. ICC

2. war crimes tribunals

3. ICJ

4. european court of human rights

application of int law

applies between national states, individuals and transnational corporations

treaty of westphalia

concept of sovereignty was developed

treaty ended thirty years war, impacted in relations by:

1. embracing idea of sovereignty

2. leaders sought to establish their own permanent national militaries

3. established core group of states that dominated

first geneva convention

protects the wounded and sick soliders on land during war

• first adopted in 1864, 1906 and 1929 and contains 64 articles

second geneva convention

protects the wounded, sick and shipwrecked military personnel at sea during war

• replaced hague convention of 1907, follows first conventions structure

• 63 articles specifically applicable to war at sea

third geneva convention

applies to prisoners of war

• replaced prisoners of war convention of 1929

• has 143 articles compared to the 97 of previous convention

• conditions and places of captivity precisely defined, establishes the principle that prisoners of war shall be released w/o delay

• established in 1929

fourth geneva convention

protects civilians, including those in occupied territories

• geneva conventions before 1949 were only concerned with combatants

• ww2 exemplified the need for protection of civilians

geneva ammendments

1. additional protocol one (1977)

   • regarding internaitonal conflicts

2. additional protocol two (1977)

   • regarding non-international conflicts

3. additional protocol three (2005)

   • additional distinctive emblem

int law characteristics

1. law has universal jurisdiction within a state

2. law is compulsory to all, citizens may not choose which rules apply to them

3. law has a ‘public’ quality to it in that laws are codified and published

4. law is binding on everyone, regardless of your thought on it

private international law

refers to the regulation of international activities carried out by individuals, companies and other non-state-actors, often overlaps with many jurisdictions and so can be called the ‘conflict of laws’

• doesnt include state actors

public international law

applies to states, which are viewed as legal ‘persons’

• deals with government to government relations as those between states and non-state actors

International conventions or treaties

formal written documents through which states agree to engage in or refrain from specific behaviours

• may be bilateral or multilateral

• only apply to states that are party to the agreement

example - the un convention against torture or nuclear non-proliferation treaty

international customs

common practices among states that become well-established and over time begin to be viewed as legally binding

• obligations arise from the exception that states should abide by traditionally accepted conduct

example - granting diplomatic immunity to foreign diplomats and slavery convention

general principles of law

invokes when there are no formal agreements or traditions in place

• implies that actions which are viewed as crimes in domestic legal systems should also be treated as crimes in the international arena

example - waging an unprovoked war against principles of civilised conduct

judicial decisions and teachings

written arguments from the most highly qualified and respected judges and lawyers are used to resolve outstanding disputes

courts and tribunals

ICJ and ICC

the un charter

international treaty that commits member states to settle their disputes by peaceful means

un general resolutions

not legally binding

un general assembly

cannot enact international laws and then force member states to submit to its authority

• rather can influence international relations

domestic law enforcability

centralised system of law

• command of sovereignty is enforced through a vertical chain of enforcement

• if you get charged, consent is not required

int law enforceability

• horizontal enforceability

• the purpose is to influence and change the behaviour in order to help maintain international stability and peace

• not about punishing states

• no legislative arm parliament (un general assemble reso’s not legally binding)

• no executive (sec council has 5 permanent members w/ veto power)

• judicial system requires consent

• states are involved but its not necessarily about them

international legal order

basis of treaties which lay down norms and standards

international humanitarian law

the law governing armed conflict and military occupation

laws of war

rules of law are non-reciprocal and apply irrespective of what the other side has done

• violations (deliberately targeting civilians or imposing collective punishment) are never justified by complaining another state has committed violations

• only apply in specific situations (not during armed conflict or an occupation)

  • in contrast, hr law applies at all times, governing the duties of all states to protect the rights of their people

rules of laws

- all parties must distinguish between combatants and civilians

1. anyone taken into custody (POWS)must be treated humanely

2. if there is gonna be an attack that will affect civilians, parties are required to give an advance warning if the situation allows it

war crimes

serious violations of the laws of war committed by individuals w/ criminal intent, deliberately or recklessly

• includes attack civilians deliberately, taking hostages and collective punishments

jus in bello

refers to the set of laws that govern the conduct of participants in armed conflict, rules that focus on how warfare is conducted, including the treatment of combatants and civilians and aim to limit suffering and distruction during war

jus ad bellum

concerns the justification for resorting to war

• involves criteria that must be met for a war to be considered as just, including legitimate reasons for engaging in warfare and the authority to declare war

distinction

requires combatants to differentiate between military targets and civilian objects

military necessity

allows for the use of force to achieve a legitimate military objective, must be balanced with the need to minimise suffering and destruction

• not explicitly codifided in geneva conventions or additional protocols, merely guides decisions on what constitutes a target

proportionality

seeks to balance military advantage with humanitarian concerns and mandates that the harm caused to civilians and civilian property must not be excessive in relation to direct military advantage anticipated