Public International Law

Core framework of international law

Article 38(1) ICJ Statute: treaties, custom, general principles, judicial decisions and writings as subsidiary means

Jus cogens norms v treaties/custom

Prevail over inconsistent treaties and custom

Elements of customary international law

1. General and consistent State practice

2. Opinio juris - sense of legal obligation/right

State practice

Executive acts, legislation, military manuals, pleadings, judgments - can be universal, regional, or local

Persistent objector rule

Persistent objector can avoid new custom, save for peremptory norms

Unilateral act as a law-creating process

Clear, public declarations with intent to be bound may create obligations (Nuclear Tests logic)

GA resolutions as law-creating processes

Non-binding but can evidence opinion juris and help crystallise custom (e.g. Friendly Relations Declaration, Nicaragua)

SC decisions as law-creating processes

Binding on all UN members under Article 25, Article 103 gives priority over conflicting treaty obligations

Soft law as a law-creating process

Codes, guidelines - formally non-binding but can influence treaty-making and custom, especially in environmental and human rights fields

ILC as a law-creating process

Important indirect source through draft articles and commentaries, frequently relied on by ICJ and States

Treaty

Written agreement between subjects of international law, governed by international law, intended to create legal obligations

Stages of treaty formation

1. Negotiation

2. Adoption

3. Authentication

4. Consent to be bound - ratification, accession

Reservation

Unilateral statement seeking to exclude/modify a provision for the reserving State

When is a reservation valid

Valid unless prohibited, limited, or incompatible with object and purpose

Legal effect of reservation

Depends on other parties’ acceptance/objection and treaty regime

Treaty interpretation elements (VCLT 31-33)

Good faith, ordinary meaning, in context, in light of object and purpose - plus subsequent agreements/practice and relevant rules of international law

Supplementary means of treaty interpretation

Travaux/circumstances - used to confirm meaning or resolve ambiguity

Invalidity grounds for treaty

Error, fraud, corruption, coercion of representative/State, conflict with jus cogens

Termination/suspension of treaty

Through treaty clause of VCLT (material breach, impossibility, fundamental change of circumstances rebus sic stantibus)

Where a treaty conflicts with jus cogens norm

Treaties conflicting with existing jus cogens are void, later jus cogens terminates incompatible treaties

Relationship between treaty and custom

Treaties can codify, crystallise, or generate custom, custom can bind non-parties

Legal personality of IO’s

IO’s created by inter-state agreement, under international law, with organs and functions, possess international legal personality where needed for their functions

Implication of ICJ Reparation for Injuries

UN is an international person with capacity to have rights/duties and bring claims, personality is functional and derived from Charter and practice

Power of international organisations

IOs have only attributed powers plus implied powers necessary to fulfil their purposes

Types of IO’s

Global v regional, intergovernmental v supranational (EU as prime supranational example, UN as intergovernmental

Role of IOs

IOs as part of global governance, alongside States, courts, NGOs, etc

Principal organs of UN

GA, SC, ECOSOC, Trusteeship Council, ICJ, Secretariat,

UN Charter Goals

Peace and security, friendly relations, human rights, cooperation

Basics of GA

Recommendatory, political authority, one-State-one-vote

Basics of SC

Binding decisions on peace and security, including sanctions and authorisation of force

IO responsibility

IO’s can incur responsibility for internationally wrongful acts within their competences, complex where both IO and member States are involved

IO immunities

IO’s usually enjoy functional privileges and immunities under specialised agreements, limited to what is necessary for their functions, internal tribunals often substitute for domestic courts

Territorial jurisdiction

Subjective (conduct initiated in territory) and objective (effects in territory)

Nationality

Active (national offender) and passive (national victim)

Protective enforcement of jurisdiction

Serious threats to State’s vital interests abroad (security, currency)

Universal jurisdiction

Certain international crimes regardless of any territorial/national link (e.g. piracy)

Adjudicative jurisdiction in domestic courts

Governed by national law influenced by immunities and territoriality - restrictive State immunity limits suits against foreign States for sovereign acts

Adjudicative jurisdiction in ICJ and other international courts

Jurisdiction based on consent (special agreement, compromissory clause, optional clause declarations, forum prorogatum)

Jurisdiction problem question

Identify each plausible head of jurisdiction and then consider whether any immunity or treaty rule limits its exercise

State immunity

Procedural bar before foreign courts, does not negate underlying wrongfulness

Restrictive State immunity

Sovereign/public acts (jure imperii) immune, commercial/private acts (jure gestionis) not

State officials - personal immunity (ratione personae)

For incumbant heads of State, heads of government, foreign ministers, covers official and private acts while in office before foreign criminal courts

State officials - functional immunity (ratione materia)

Covers official acts even after leaving office, contested where acts amount to international crimes

What IO immunities are based on

Constituent treaties and host agreements, usually functional - immunity from legal process for acts necessary for IO functions

When courts uphold IO immunity

If reasonable internal remedies exist (e.g. employment tribunals)

Structure of an internationally wrongful act

1. Binding international obligation (treaty, custom, SC decision, etc.)

2. Conduct (act or omission) attributable to the State

3. Breach (incompatibility with the obligation)

4. Injury (damage or impairment of a legally protected interest, degree required is debates)

Attribution meaning

Conduct of any State organ and entities exercising governmental authority is attributable

Article 8 - attribution

Conduct of private persons/groups attributable if they act on instructions of, or under directions or control of, the State (effective control standard, key for proxies and cyber operations)

Article 11 - state act

adoption by the State of otherwise private conduct makes it a State act

Circumstances precluding wrongfulness

Consent, self-defence, countermeasures, force majeure, distress, necessity - subject to strict conditions and cannot justify breaches of peremptory norms

Consequences of an internationally wrongful act

Duty of cessation and non-repetition

Reparation for committing an internationally wrongful act

Restitution where possible, otherwise compensation and satisfaction - Chorzów Factory formula (wipe out all the consequences)

Rainbow Warrior arbitration

France responsible for agents’ acts and breach of agreement, arbitral reasoning links treaty breach to general law on responsibility

Corfu Channel

Discussion of Albania’s knowledge and duties, often cited on due diligence and failures to prevent harm

Mavrommatis

Disagreement on a point of law or fact, conflict of legal views or interests

Nuclear Disarmament cases

Add requirement that respondent be aware of the disagreement

Diplomatic ways of dealing with international dispute

Negotiation, good offices, mediation, inquiry, conciliation

Legal ways of dealing with international dispute

Arbitration, judicial settlement (ICJ, ITLOS, regional courts, WTO bodies)

Diplomatic technique of negotiation

Direct discussions, obligation of good-faith, meaningful engagement where duty to negotiate exists

Diplomatic technique of mediation

Third party facilitates or proposes non-binding solutions

Inquiry as a diplomatic technique

Impartial fact-finding commissions, increasingly used for human rights and conflict situations

Conciliation as a diplomatic technique

Mixed commission investigates and recommends a non-binding settlement (e.g. Jan Mayen report)

Arbitration as a binding method

Ad hoc, party-designed, binding - PCA as administrative hub, historically important awards (e.g. Alabama, Island of Palmas, Trail Smelter)

ICJ as a binding method

Principal UN judicial organ, jurisdiction by consent via special agreement, compromissory clauses, optional clause declarations, or forum prorogatum

Baseline prohibition on the use of force (jus ad bellum)

UN Charter Article 2(4): states must refrain from the threat or use of force against territorial integrity or political independence, or otherwise inconsistent with UN purposes

Self defence as a recognised exception to prohibition on the use of force

When triggered by an armed attack of sufficient gravity - debated for non-State actors

Conditions for self-defence

Necessity, proportionality, immediacy - must be reported to the Security Council

Collective self-defence

Requires a request/consent from the victim State

Security Council authorisation as a exception to prohibtion on use of force

Chapter VII: SC may determine a threat to the peace, breach of the peace, or act of aggression and authorise ‘all necessary measures’, such authorisation must be read in light of resolution text and object

Preventive or pre-emptive self-defence

Highly controversial, many States confine legality to imminent attacks

Humanitarian intervention and Responsibility to Protect

Politically salient but not clearly accepted as standalone legal exception without SC authorisation

Problem question - use of force

1. Is there a ‘use of force’ within Article 2(4)?

2. If yes, is there valid SC authorisation?

3. If no, can it be justified as (individual or collective) self-defence satisfying armed attack + necessity + proportionality + reporting?

4. If neither, the action violates jus ad bellum and engages State responsibility.