International law

Sources of international law

38(1) of the ICJ Statute:

a) international conventions

b) customary international law

c) the general principles of the law recognised by civilised

nations

Judicial decisions and scholarly writings as subsidiary means

Countermeasure

Breach of international law by a state that is not unlawful if the addressee has violated an international obligation towards the state and the measure is proportionate and does not breach ius cogens

Retaliatory measures

Unfriendly responses of states that are not unlawful

Introduction of ius cogens

Art 53 VCLT

How to express consent to be bound by a treaty

Art 11 VCLT

‘signature, exchange of instruments constituting a treaty,

ratification, acceptance, approval or accession, or by other means if so agreed’

Entry into force of a treaty

Art 24 VCLT

Reservation exceptions

Art 19 VCLT

• Treaty prohibits reservation

• Treaty permits only specified reservations, which do not include the reservation in question

• Reservation ‘incompatible with object and purpose of the treaty’

Prohibition of defeating the object and purpose of a treaty

Art 18 VCLT

Legal effect of a reservation

Art 20 VCLT

State parties to a treaty may react to a reservation by accepting it

or objecting to it – possible reactions:

• no reaction (tacit acceptance 12 months after notification)

• objection => treaty still comes into effect between reserving

state and objecting state: provision that was objected to does

not apply between reserving & objecting state

=> however, does not determine whether a reservation is valid

• acceptance => reservation then reciprocally takes effect

between reserving state and accepting states

Pacta sund servanda

Art 26 VCLT

Temporal scope of application of a treaty

Art 28 VCLT

Territorial scope of application of a treaty

Art 29 VCLT

3rd parties aren’t bound without their consent

Art 34 VCLT

3rd parties: for obligations consent must be written, for rights it is presumed

Art 35-36 VCLT

Treaty must be interpreted in good faith

Art 31(1) VCLT

Customary international law elements

General practice of states

-Opinio juris – belief that the practice is legally required (ILC, Conclusion 2)

General Practice

• Must be widespread, representative, and consistent

• Practice = physical or verbal acts by state organs

(executive, legislative, judicial)

• Includes: legislation, court decisions, diplomatic

notes, statements in UN, military conduct, etc.

• Can also be omission (e.g., failure to object to

torture)

• Operational conduct (e.g., US Freedom of Navigation

operations) may count

• Must evolve over time, but no fixed duration (ICJ:

North Sea Continental Shelf Cases)

• Persistent objector rule: a state not bound if it

consistently objected during norm formation (e.g., US,

UK, FR on environmental damage from nuclear

weapons – ICRC Study)

Opinio iuris

• Practice must be accompanied by a sense of legal obligation

• Not habit, tradition, or courtesy (opposite to the General

practice)

• Can be explicit (e.g., government statements) or inferred (e.g.,

consistent conduct in line with legal obligation)

• Harder to prove than general practice

Analogy: opinio juris = way of cooking, not an “ingredient” (V.

Lowe)

Nicaragua v. United States (ICJ, 1986)

The ICJ affirmed that customary international law consists of General practice and Opinio juris. Even if

both parties agree on a rule, the Court must verify both elements independently. The Court is not bound by

the parties’ shared view unless actual practice supports it (para. 184).

Multilateral treaties (e.g., UN Charter, OAS Charter) can Codify existing customary law. But treaty

provisions alone are not proof of customary law; the Court must find evidence in state conduct (para. 183).

Perfect consistency in state behavior is not required. A rule may still be customary if:

-Most states act in line with it

- Deviations are treated as breaches, not new norms (para. 186).

Treaty law and customary international law exist in parallel

A treaty rule may relate to a rule of customary

law in at least three different ways: Codify existing custom, Crystallize emerging custom, Lead to new custom.

General Principles of Law

(Art. 38(1)(c))

Unwritten rules common across major legal systems. Play a gap-filling role in the

international legal field. (Corfu Channel case 1949)

Decisions of International

Organizations

Not listed in Art. 38. Considered to form another source of law in the international

legal field. (Article 25 of the UN Charter)

Unilateral Declarations

Can bind the declaring state if made with legal intent (France’s 1974 statements on

nuclear testing) Can be dependent (inseparably connected with a treaty) and

independent (exist independently of another source of law).

Subsidiary Means (Art.

38(1)(d))

Help identify and interpret existing rules (do not create law themselves). Textbooks,

articles, ILC reports

Non-Binding Instruments

("Soft Law")

Embody political or moral commitments, rather than legal obligations. Resolutions,

declarations, recommendations, guidelines, and standards. (Universal Declaration of

Human Rights → ICCPR, ICESCR)

Reparations for Injuries (Advisory opinion of the ICJ in 1949) timeline:

▪ September 1948 - UN appoints Count Bernadotte as mediator in ongoing Israel-

Palestine conflict.

▪ September 17, 1948: Count Bernadotte assassinated in Jerusalem

▪ emerging QUESTION – Can UN bring claim against Israel?

▪ UN General Assembly requests advisory opinion from ICJ

▪ provisions of the Charter express silence; in contrast, ICJ concludes that due to

UN´s ability to exercise rights & obligations largely at an international scale, UN ought to be granted legal identity.

Institutional Structure of International Organizations:

▪ secretariat made of independent civil servants

▪ plenary organ (all members representet)

(not all members represented) → easier decision

▪ non-plenary organ making process

▪ when there is a need, also judicial organ

Goals & motivations (UN):

▪ maintaining International Peace & Security

▪ protecting Human Rights

▪ delivering Humanitarian Aid

▪ supporting Sustainable Development & Climate

Action

▪ upholding International Law

UN Organs:

ICJ

General Assembly

Security Council

Economic & Social Council

Trusteeship Council

+additional subsidiary organs

ICJ

▪ applies international law

▪ settles legal disputes between states

▪ provides advisory opinions on legal questions referred by

UN organs and specialized agencies

▪ 15 judges with 9-year terms

General Assembly

(plenary organ):

▪ 193 member states

▪ scheduled annual sessions

▪ decision making authority (not legally binding decisions,

however, significant political influence)

▪ bears responsibility of electing non-permanent members of

the Security Council

Security Council

(non-plenary organ)

▪ 15 members, each granted 1 vote

▪ 5 of these considered permanent members (UK, France,

China, Russia & United States), granted veto power

▪ primarily maintains international peace & security

▪ able to impose sanctions, authorize use of force &

establish peace keeping mission

Individuals as subjects of international law

Up until WWII, individuals did not have

direct rights & claims under international

law

• After WWII, essential evolutions in:

- Human rights law: established rights

of individuals in international law

- International criminal law: established

duties of individuals, liable for deeds

under international law

- 1999: LaGrand case: US breached

rights of German nationals under

VCCR

Group of individuals as subjects of international law

• Definition: no explicit definition, but group must have territory, language, customs

- Population of a State as a whole or group of people within state(s), eg. the people of Tibet

- Indigenous people especially attempted to protect, eg. by the Indigenous and Tribal Peoples

Convention of the ILO, or by the (not binding) UN Declaration on the Rights of Indigenous

Peoples

- Minorities have limited legal personality under international law

BUT: only individuals can invoke these rights, not minority groups as a whole

- Armed opposition group

have certain rights and obligations only in national armed conflicts

Multinational Corporations

• International legal personality: disputed

• Recent developments of (economic) rights & (non

binding) obligations under international law:

- Respecting human rights

eg. UN Human Rights Council: The Guiding

Principles on Business and Human Rights

- Safeguarding the environment

eg. Organisation for Economic Co-operation

and Development Guidelines

Criteria of Statehood (Montevideo Convention Art 1)

1.     Permanent Population

·      No prescribed minimum size.

·      Important mutual bond of loyalty that results from nationality.

2.     Defined Territory

·      Need defined physical boundaries.

·      Earth’s surface, subsoil and airspace.

3.     Effective Government

·      An entity in charge of the territory and population

 

Ø  Capacity to enter into relations with other states – included among these in the Convention but is generally considered to be a consequence of statehood and not part of the criteria.

State Immunity

·      A state cannot be sued before the national courts of another state.

·      Based on the sovereign equality of states.

·      Exceptions:

o   Relative immunity of States – immunity is enjoyed for sovereign acts but not private ones.

o   Waivers of immunity, claims relating to property and counterclaims.

o   No immunity for torts committed in the forum state.

·      Enforcement immunity – is broader than immunity from jurisdiction.

·      Legal basis for decision on immunity

o   State’s domestic immunity laws.

o   Directly applicable customary international law.

Nationality

= governed by National law.

Acquisition: Automatic (by birth) and Voluntary (by naturalisation).

Loss: by renunciation, voluntary acquisition of another  nationality and entry into foreign military force

Acquisition of territory

• Can only acquire territory through a peace treaty or other contractual arrangements.                                                                                            • Most states don’t recognise another state’s unilateral annexation of parts of a sovereign state

Separation

Part of a territory splits off from a continuing state with the consent of that state, to establish a new state. E.g. Soviet Union – Russian Federation as the ‘residual state’.

Dissolution

Complete collapse of state, new states emerge, former state ceases to exist. E.g. Czechoslovakia – Czech Republic + Slovakia

Union or merger

2 or more existing states merge to create a new state.

E.g. Tanganyika + Zanzibar  = Tanzania

Secession

Separation of part of a territory of an existing state against the will of that state, to establish a new state (unilateral). E.g. Sudan > South Sudan

Recognition of States

Two Opposing theories:

1.Constitutive Theory – the existence of a state depends on formal recognition by other states.                                                                                          2.Declaratory Theory – recognition is a political instrument, supports determination of statehood when the existence of the 3 state elements is disputed. (Kosovo Declaration of Independence 2008)         → This is the prevailing theory.                                                                                          •States have freedom in deciding whether to recognise an entity as a sovereign state.           •Where emergence of a new state is unlawful = connected with serious violations of norms of jus cogens.                                                                                                                                                • States are obliged to withhold recognition (Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art 41(2)).

Are rights and obligations transferred to successor states?

• Accepted that treaties automatically transfer to the successor state.   

•  Former colonies adopted a ‘clean slate’ position + could choose which treaties should stay in force (controversial in contemporary society)

• Territorial treaties = usually automatically transferred to the successor state.

• Assets, archives, and debts usually divided proportionally.

• Successor state does not succeed to highly personal treaties (e.g. founding treaties of international organisations).                                      → Vienna Convention on Succession of States in Respect of Treaties (1978) and Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (1983) [not yet in force] codify basic rules of customary international law on this subject.

International legal responsibility

consequences for states that breach international law

Source for consequences of internationally wrongful acts

Articles on Responsibility of States for On

Internationally Wrongful Acts (ARISWA) = provide

consequences for wrongful acts

• aren’t part of treaty but applied regularly by ICJ

(customary character)

• don’t attribute fault or expect damages to be caused

by wrongful act

International liability

for damage caused

by actions not contrary to international law

—> dangerous activities: high risk of

causing damage + high amount of possible

damage

—> only included in individual

multilateral treaties so far; not customary

law

• genuine liability: state obliged to

compensate, e.g. Convention on

International Liability for Damage

Caused by Space Objects 1972

or private operator of dangerous

facility

• state on whose territory dangerous

activity is carried out may also become

liable

• exclusive liability of private operators

under domestic law

—> if state violates duties referring to

oversight imposed on it via treaties, it

incurs international responsibility

Individual responsibility

• arises under international

criminal law and punishes

serious offenses like genocide;

• individuals (=persons who are

nationals of a State Party to

the ICC-statute, acting head of

state; or if committed on

territory of State Party) can be

brought before International

Criminal Court in The Hague

Condition for international legal responsibility

Breach

Atrribution

Breach

1. Unlawful act (= breach of international law)

• can be act or omission

• unlawfulness excluded if act is justified (Art.

20-25 ARISWA)

—> infringed state has validly consented

beforehand; act is self-defense; force majeure

(can’t act differently); situation of distress/

emergency

—> always unlawful if ius cogens has been

violated (Art. 26 ARISWA)

Attribution

Act is attributable to a state

• committed by state organ (legislative, judicial, executive branch) and domestic law

recognizes it as state organ

• acts of private person under certain circumstances

—> empowered with sovereign tasks by state

—> act carried out on instruction/ under control of state, e.g. Nicaragua Case

—> approval/ subsequent acknowledgement of act, e.g. Tehran Hostage Case

• state contributing to wrongdoing of another, e.g. Belarus aiding Russia in Ukraine

attack

• actions of insurrectional movements are attributable to state under new government

Consequences of international legal responsibility

cease act + guarantee to non-repetition (Art. 30 ARISWA) & make reparations (Art. 31 ARISWA)

Types of reparations

Restitution means re-establishing the situation prior to the act, going back to the original state; in many cases however it is materially impossible

Compensation is usually a monetary payment, limited to financially assessable damage, including loss of profits

Satisfaction can only be used when the prior two don't offer full reparation. It includes formal apology, expression of regret, and investigations of the breach

6 circumstances precluding wrongfulness

• Self-Defence

• Countermeasure

• Consent

• Force Majeure

• Distress

• Necessity

Force Majeure

Force Majeure is when a state involuntarily engages a conduct that breaches International Law, in a form of an irresistible force or unforseen event, making it impossible to uphold the obligation. The required elements are irresistable force (natural disaster, man-made event), something that is unable to avoid, unperdictible, and lastly it has to be materially impossible for a state to uphold the obligation.

Necessity

Neccessity is an emergency that covers the life of the state, not specifically human lives. The act is the only way for the state to safeguard an essential interest against a grave and imminent peril. Occupying other states due to self-preservation is a common abuse in International Law.

Self-Defence

Self-defence can be found in Article 51 of the UN Charter. Although these acts count as lawful due to the Article, can raise or give rise to unlawful acts, that create breaches to International Law.

Consent

Consent is when a state gives another a valid consent, but the act must remain in the boundaries of the given consent. It has to be of clear intention.

Distress

During Distress compliance remains possible, but the breach is neccessary to save lives. For instance ships breaching international law due to emergency situations, in order to save lives.

Jus ad bellum - The use of armed force - History

1899: The Hague Convention: First steps for peaceful dispute settlement

1920: Established of the League of Nations - Collective Security

1928: Kellog-Briant Pact - Prohibition of the use of war

1945: Established of the UN - Prohibition of the threat and use of force

Art 41 - measures not involving armed force

Goal of the UN is maintaining peace

Therefore the use of armed force is the last resort

Art 41: Bedrock for Security Councils sanction practice Sanctions can have various forms - economic or diplomatic

BUT no interference with matters of the Security Council Usually sanctions are temporary and imposed in response to a specific conflict

In recent years the Security Council has started to address generic threats as well

Exceptions to the prohibition of the use of armed force:

Art 42 - Collective use of force

Art 51 - the right to self defence

R2P - Responsibility to protect

Right of peoples to self-determination

• Philosophical background: Enlightenment

• Basis for decolonisation

• After WW2 → formulated in UN charter (art. 1 para. 2

+ art. 55)

• No right to external self-determination (exception:

decolonisation) → tension with territorial sovereignty +

integrity

• Definition General Assembly: right of peoples to decide

their political status without interference from outside

and to freely pursue their economic, social and cultural

development

• ICJ: right to self-determination has erga omnes effect

• Is it ius cogens? → contested

• Afforded to all peoples

International Bill of Human Rights

UDHR + covenant on

civil and political rights + covenant on economic, social and

cultural rights

Categories of Human Rights

• 1st generation: civil and political rights (e.g. right to life,

prohibition of torture) → require immediate realization by states

• 2nd generation: economic, social + cultural rights (e.g. right to

work, right to education) → permit progressive realization

• 3rd generation: collective rights (e.g. right to self-determination of

peoples, right to peace) → sometimes invoked as individual rights

(Urgenda Case)

Human rights are

universal, indivisible, interdependent

States have the obligation to…

• …Respect (= must not interfere with

human rights)

• …Protect (= prevention of

interference)

• …Fulfil (= positive action to help

with enjoyment of human rights)

Restrictions are allowed if

• Public interest

• Legal basis

• Necessary in a democratic society

Types of human rights

Absolute rights (e.g. prohibition of torture) → can never be restricted

Relative rights (e.g. right to freedom of expression) → can be restricted under certain circumstances

Non-derogable rights (e.g. prohibition of slavery) → must be respected, even in emergency situations

Forms of review (treaty-based):

• Periodic state reports

• Inter-states / individual complaints (only admissible if

accused state has consented to this procedure)

→ findings are not binding, but moral pressure

• Inquiries (e.g. visits to prisons → state’s consent needed)

Human rights bodies (charter-based)

Regional human rights enforcement:

• ECHR → ECtHR

• American Convention on Human Rights

→ Inter-American Court of Human Rights

• African Charter on Human and People’s

Rights → African Court on Human and

People’s Rights

• Can make legally binding decisions

Other institutions protecting human rights

• Special Rapporteurs / independent experts of UN

Human Rights Council (charter-based)

• International Court of Justice

• Security Council