International Law Exam Notes

7.1: Immunities from National Jurisdiction

• Definition: Protection from legal process in foreign courts.
• Applies to: States, International Organizations, diplomats, and consular officials.
• Condition: Only for recognized sovereign states (Montevideo Criterion #4).
• Purpose: Enables peaceful inter-state relations.

Types of Immunity

• Status-Based: Based on position (e.g. diplomat); ends with role.
• Function-Based: Based on acts done for the state; continues post-office.
• Absolute vs. Restrictive:
  • Absolute: All acts covered.
  • Restrictive: Only sovereign acts (not commercial).

SECTION 1 – Foundations

• Schooner Exchange (1812): Immunity for sovereigns, diplomats, and foreign troops (with consent).
• CJ Marshall: Territorial jurisdiction is exclusive unless waived by consent/custom.
• 2004 UN Convention: Codifies immunity rules; reflects CIL but not widely ratified.
• Fox: Immunity law is unclear; commercial acts are hard to define.
• Rule or Privilege?: Debate—some say immunity is a right, others say it's discretionary.
• US Practice: Courts defer to executive, even after FSIA.

SECTIONS 1 & 2 – Functional Immunity & Exceptions

• Functional Immunity: Covers official state acts.
  • Holland v. Lampen-Wolfe: Acts done in official role = immune.
• UN Convention excludes immunity for:
  • Employment disputes, personal injury, property issues, commercial matters.
• Emerging Exceptions:
  • Belhaj (UK 2014): No immunity for forum state nationals.
• Waiver: States can waive immunity.
• Congreso del Partido (1981): UK uses restrictive immunity—key: sovereign vs. commercial.

SECTION 2 – Who Can Claim Immunity?

• Defined by national law (e.g. UK’s SIA).
• Applies to:
  • Central banks, state-owned entities, military/government officials (if doing sovereign functions).
• Samantar v. Yousuf (US 2010): FSIA doesn’t cover individuals.
• Canada: Broader—includes individuals.

SECTION 3 – High-Ranking Officials

• Pinochet (UK 1999): No immunity for torture; universal jurisdiction under CAT; former official.
• DRC v. Belgium (2002): Sitting officials retain immunity; no clear exception for HR/crimes.
• Key Point: Immunity ≠ impunity—other paths to accountability exist.

SECTION 4 – Violations of IL vs. Immunity

• Jones v. Saudi Arabia / Jones v. UK: Torture claims don’t override immunity.
• Germany v. Italy: No exception for jus cogens violations.
• Arguments for Exceptions: 1. Jus cogens overrides immunity. 2. Torture isn't a state function.

SECTIONS 5 & 6 – IOs & Diplomats

• IO Immunities:
  • Functional: For operations.
  • Granted by treaties (e.g. UN Charter).
  • Doesn’t bar liability or compensation.
• UN Security Council: Chapter VII acts may extend immunity.
• Diplomatic & Consular Immunities:
  • Based on CIL, codified in:
    • Vienna Convention on Diplomatic Relations (1961)
    • Vienna Convention on Consular Relations (1963)
  • Covers official acts.

7.2: Law of the Sea

INTRODUCTION

• Israel–Lebanon Maritime Deal (2022):
  • Resolved a 12-year dispute over gas fields (Qana & Karish).
  • Enables both to extract natural gas in the Mediterranean.
  • Significant as countries remain formally at war.
• Why Law of the Sea Matters:
  • Critical for peace/security (e.g., South China Sea tensions).
  • ~90% of global trade travels by sea (most as container cargo).

SECTION 1 – The Legal Framework

• Key Instruments:
  • 1982 UNCLOS + 1994 Deep Sea Mining Agreement.
• Status:
  • Some states (e.g. U.S.) haven’t ratified but follow many UNCLOS rules as customary international law (CIL).
• Interim Period (1982–1994):
  • Treaty obligations respected under pacta sunt servanda.
• Hierarchy:
  • UNCLOS overrides conflicting 1958 Geneva Conventions for its parties.
• No Reservations:
  • UNCLOS was a political compromise; states must accept it as a whole.
• Part XI (Deep Sea Mining):
  • Modified by 1994 Agreement after objections from developed states.

SECTION 2 – Territorial Sea & Innocent Passage

• Territorial Sea: 12 nautical miles.
  • Full sovereignty, like land territory.
  • Defined in Art. 2(1).
• Delimitation Method: Straight baselines (UK v. Norway).
• Innocent Passage (Arts. 17 & 19):
  • Allows navigation through territorial seas.
  • Jus cogens principle—core to freedom of navigation.
  • 1989 USA/USSR Joint Statement: Confirms these rights are CIL.
• Security Exception (Art. 25(3)):
  • Passage can be temporarily suspended for security reasons (e.g., military exercises).
• Contiguous Zone: Up to 24 nautical miles.
  • Limited control for customs, immigration, etc.

SECTION 3 – Continental Shelf & Extended Rights

• Continental Shelf:
  • Natural extension of land; may exceed 200 nautical miles if geological features permit.
  • Nicaragua v. Colombia (2012): Confirmed this.
• Commission on the Limits of the Continental Shelf (CLCS):
  • Reviews states’ data on extended shelf claims.
• Resources:
  • Rich in oil, gas, and minerals.
  • Shelf rights exist ipso facto and don’t require occupation.

SECTION 4 – EEZ (Exclusive Economic Zone)

• EEZ:
  • Up to 200 nautical miles.
  • Sovereign rights over natural resources, fishing, environmental protection.
  • Important for states lacking a geological shelf.
  • Legally distinct from the continental shelf.
• Flag State Requirement:
  • Ships must have a genuine link to their flag state, which exercises control.
• Boundary Principles:
  • Equidistance vs. Natural Prolongation vs. Equity.
  • Disputes often hinge on island sovereignty and low-tide elevations.

SECTION 5 – High Seas

• High Seas:
  • Begin beyond EEZ or territorial sea.
  • No state's sovereignty applies—open to all.
• Freedoms Include:
  • Navigation, fishing, laying cables/pipelines, scientific research.
  • Duties: Combat piracy, human trafficking, cooperate on enforcement.
• Historical Principle:
  • Rejection of "closed seas" → now a pillar of maritime law.

8.1: State Responsibility

• Sovereignty = Rights, but also responsibilities under international law.
• A state is responsible when it breaks an international rule—this can be:
  1. A treaty rule
  2. A customary rule
  3. A jus cogens rule (the highest norms like a ban on genocide)
• Other states can enforce this responsibility, often to protect their citizens, but power differences between countries still matter.
• The law of state responsibility covers:
  1. General principles: how responsibility works, who acts for the state, how to enforce it, and possible defenses.
  2. Treatment of foreigners (aliens).

SECTION 1 – Basic Rules

• If a state breaks a legal rule, it must make up for it (reparation).
• Doesn't matter if the treaty doesn’t say so—this rule is automatic.
• A wrongful act has 3 elements:
  1. Action or omission (doing or failing to do something),
  2. Done by the state, and
  3. Breaks international law (treaty, custom, or peremptory norm).
• These rules are based on the ILC Articles on State Responsibility, which are widely used across areas like human rights, trade, and investment.

SECTION 2 – Who Counts as “the State”?

• Any state organ (gov't official or agency) counts—whether from the central or local level (Art. 4(1)).
• Also includes:
  • People acting under state orders
  • Private actors doing state-like tasks
  • Insurgent groups that later become the government
  • Actions later approved by the state
• Even if the act goes beyond orders, it may still count as the state's action (Art. 7).
• Remember: The “state” is a legal idea, but real people act in its name.

SECTION 3, 4 & 5 – Responsibility Theories & Defenses

• Two views:

  • Objective responsibility: State is liable no matter what (no need to prove fault).
  • Subjective responsibility: Must show the state was negligent or at fault.
  • Objective view is preferred (adopted by ILC).

• Key rule: A state doesn't need to be at fault—just breaking a rule is enough.

• Exception: If rebels or non-state actors are involved, some fault or negligence by the state may be needed.

• Defenses (6 situations where responsibility is not triggered):

  1. Consent
  2. Self-defense
  3. Countermeasures (responding to another state's illegal act)
  4. Force majeure (uncontrollable event)
  5. Distress
  6. Necessity (now part of customary law)

• These are general defenses—not specific to individual treaties.

• Consequences of Breaking the Law:

  1. State must keep following the rule (can’t ignore it just because it broke it once).
  2. Must stop the unlawful act and not repeat it.
  3. Must provide reparation (fix the harm, usually with money or restoring the situation).

SECTION 6 – Compensation & Claims

• Compensation is remedial, not punishment (no “punitive damages” like in US law).
• Danube Dam case: The ICJ says there's a two-step process:
  1. Use treaty law to check if a rule is valid.
  2. Use state responsibility law to decide who pays.
• Bringing a Claim:
  • Once a state violates a rule, it’s automatically responsible (Art. 42).
  • But another state (or international body) must invoke this responsibility.
  • Special case (Art. 48): If the violated rule protects everyone (e.g., banning torture), any state can take action—even if it wasn't directly harmed.
• Diplomatic Protection (Overview)
  • States can act on behalf of their citizens or companies who are harmed abroad, after they’ve tried local remedies first.

8.2: International Environmental Law

• IEL is different from traditional international law:
  • It limits state sovereignty (states can't do whatever they want with their land).
  • It involves non-state actors (NGOs, citizens, etc.).
  • It even affects domestic policies.

Key Milestones

1.  Stockholm Declaration (1972):
    *   Everyone has the right to live in a healthy environment.
    *   Earth’s resources must be protected and restored.
    *   Led to the creation of UNEP (UN Environment Programme).
2.  Rio Declaration (1992):
    *   Introduced sustainable development (balance between environment and development).
    *   States can use their natural resources, but must protect the environment.
    *   Encouraged public participation and compensation for pollution victims.
    *   Marked a turning point in IEL.

SECTIONS 2–3: Philosophical & Legal Foundations

• 3 Main Approaches to IEL
  1. Treaty approach – precise rules, but hard to agree on.
  2. Human rights approach – helps promote justice, but doesn't always fix root causes.
  3. Ecocentric approach – some say nature itself should have legal rights.
• Soft Law vs. Hard Law
  • IEL often starts with soft law (non-binding principles).
  • Over time, these can lead to binding agreements.
• 4 Key Legal Principles of Sustainable Development
  1. Intergenerational equity – protect the environment for future generations.
  2. Sustainable use – use resources wisely.
  3. Intragenerational equity – fair use among current people (rich/poor countries).
  4. Integration – environmental concerns must be part of all sectors (economy, health, etc.).

SECTION 3: Principles, Cases & State Duties

• Famous Cases
  • Danube Dam: Environmental damage = human rights issue.
  • Argentina v. Uruguay: States must cooperate on environmental issues.
• Core IEL Principles
  • Good neighbor principle (no harm across borders) is now customary international law (CIL).
  • Prevention & cooperation are key duties (ILC 2001).
  • Precautionary principle: Even without full scientific certainty, act to prevent harm.
  • Southern Bluefin Tuna Case: Take urgent protective steps, even if science is uncertain.
• Common but Differentiated Responsibility (CBDR)
  • Rich countries must do more because:
    1. They caused more damage.
    2. Poor countries need flexibility for development.
• Polluter-Pays Principle
  • Those who cause harm should pay to fix it (still not fully accepted in law).
• Enforcement & Courts
  • Many treaties don’t have strong enforcement tools.
  • Courts involved in IEL cases: ICJ, WTO, ITLOS, PCA, etc.

SECTION 4: Treaties & Global Agreements

• Ozone Protection
  • Vienna Convention (1985) + Montreal Protocol (1987): Major success!
    • Based on science, not politics.
    • Shows IEL can work well.
• Nuclear Issues
  • Nuclear energy: debated in IEL.
  • Chernobyl led to tighter monitoring (IAEA).
  • ICJ: Civil use of nuclear power is legal, weapons development is not.
• UN Climate Agreements
  • UNFCCC (1992): Reduce greenhouse gases, help poor countries.
  • Kyoto Protocol (1997): Emissions trading, carbon pricing, reforestation.
  • Paris Agreement (2015): Science-led, global commitment to limit climate change.
• Oceans, Wildlife & Shared Territories
  • Law of the Sea (1982): Protect the marine environment.
  • Antarctica (1991): No mining, no ownership fights.
• Biodiversity (1992): Well supported by states.

SECTION 5: Human Rights & Environmental Protection

• Human Rights & Environment
  • Environmental harm affects basic rights (health, life, etc.).
  • Ogoni Case (2002): Nigeria failed to protect its people from oil pollution.
  • Some treaties (like African Charter) mention the environment directly.
• Indigenous Rights
  • UN Declaration (2007): Indigenous people have the right to protect their environment.
• War & Environment
  • No full treaty yet, but CIL says: Don’t cause serious environmental harm during war.
  • Rome Statute: Environmental destruction in war = possible war crime (only if extreme).
• Key Takeaways
  • IEL is a growing and evolving area of law.
  • It balances state sovereignty with global environmental concerns.
  • It's based on principles like prevention, precaution, cooperation, and equity.
  • Treaties, courts, and scientific research all play a role.
  • Sustainable development is the central idea — progress without destroying the planet.

9.1: International Economic Law

• IEcL has evolved from state-controlled trade to a complex system of global economic governance.
• Involves not only states but also non-state actors like Multinational Corporations (MNCs).
• John Jackson’s 4 Key Characteristics of IEcL:
  1. Cannot be separated from general international law.
  2. Depends on interplay between domestic (municipal) and international law.
  3. Requires a multidisciplinary approach (especially economics).
  4. Is more empirical than theoretical.
• Post-2008 Financial Crisis: IEcL was criticized for being too liberal and giving too much power to MNCs.
• Main Goal: Reduce trade/investment barriers to promote economic efficiency.

SECTION 2: Main Institutions (“Unholy Trinity”)

1.  IMF – Ensures monetary stability, gives policy advice, provides loans.
2.  World Bank (WB) – Focus on poverty reduction and long-term development:
    *   IBRD (middle-income countries)
    *   IDA (low-income countries)
3.  WTO (est. 1995) – Governs global trade, enforces rules:
    *   Succeeds GATT system.
    *   Features a unique 2-tiered dispute settlement system.

• Development Goals: From MDGs (2000) to 2030 Agenda – focused on reducing poverty/debt.

SECTION 3: Key Principles of International Trade Law

• Core Principles:
  • Tariffication: Only tariffs allowed, no quantitative import/export restrictions.
  • Binding Tariffs: Agreed tariffs locked into GATT schedules.
  • MFN (Most-Favored Nation): Equal trade benefits to all WTO members.
  • National Treatment: No discrimination between domestic and foreign goods once imported.
• Exceptions:
  • Public morals, health, environmental protection, cultural heritage, conservation, etc.
  • Shrimp-Turtle Case (1998): US couldn’t force environmental standards extraterritorially.
• Trade Remedies:
  • Anti-dumping: Addressing foreign goods sold below “normal” value.
  • Subsidies: Government support seen as unfair trade distortion.
  • Regional Agreements: Free trade areas, customs unions, etc., operate outside GATT but may promote deeper integration.

Developing States and the WTO

• Challenges:
  • No formal definition of “developing state. ”
  • Trade liberalization often harms rather than helps development.
  • Existing “special and differential” treatment provisions insufficient.
• Self-designation used for developing status; LDC list (UN) is more formal (48 states in 2015).
• Dispute Settlement:
  • Weak under GATT, strong under WTO.
  • Allows for retaliation (e.g., cross-sector).
  • Criticism: Narrow legal interpretation, too powerful? (Trachtman)

SECTION 4: International Investment Law (IIL)

• Shift from few treaties to 3000+ BITs (Bilateral Investment Treaties).
• Hybrid system: Mix of treaty and contract law → arbitration is the preferred method for disputes.
• Historical shift: From natural resource exploitation → broad modern definition of investment.
• Governed increasingly by international law, not just domestic law.
• Key Investor Protections:
  • Fair and Equitable Treatment
  • Full Protection and Security (originally physical protection, now broader)
  • Compensation for Expropriation:
    • CIL conditions: 1) public purpose, 2) non-discriminatory, 3) adequate compensation.
  • No appellate body: Leads to inconsistency in tribunal rulings.
  • Arbitration requires consent, often given in advance in treaties (e.g., NAFTA).

SECTIONS 5-7: Global Finance, Sovereignty, and Social Concerns

• Global Financial Architecture:
  • Used to be domestic → now requires international regulation.
  • 2008 crisis challenged the idea of flexible standards.
• Sovereignty Tensions:
  • Economic interdependence weakens states' ability to pursue independent policies.
  • Example: Brexit delays tied to trade/investment obligations.
• Non-State Actors:
  • Especially MNCs → not held accountable under IEcL for labor, social, or human rights concerns.
  • Push for Reform:
    • Pressure from human rights groups and anti-globalization movements.
    • Movement to include social and environmental values in IEcL.
• Summary: Key Takeaways
  • IEcL is no longer just about states—MNCs, arbitrators, and civil society all play roles.
  • Institutions like the IMF, WB, and WTO are foundational but often controversial.
  • Trade and investment laws prioritize liberalization but face backlash over fairness and development.
  • IEcL increasingly clashes with state sovereignty, human rights, and environmental priorities.
  • The system is under reform, facing calls for more equitable and sustainable legal frameworks.

9.2: International Trade & International Law

1. Foundations of Trade & Investment Law

• Trade Law
  • GATT 1947: Created in response to interwar protectionism → aimed to liberalize global trade and prevent future conflicts.
  • WTO 1995: Successor to GATT with expanded jurisdiction and a strong enforcement mechanism → legally binding on member states.
• Investment Law
  • Rooted in diplomatic protection and foreign investor immunity (especially against expropriation by developing states).
  • Bilateral Investment Treaties (BITs) became widespread post-decolonization → aimed to attract investment but also constrain domestic sovereignty.
  • BITs allow investor–state dispute settlement (ISDS): investors bypass domestic courts to sue states directly.

2. Trade & Investment: Key Legal Concepts

• Both derive theoretical legitimacy from Ricardo’s Comparative Advantage.
• WTO’s mission: remove trade distortions (but some protectionism persists).
• ISDS & BITs: Expand investor rights → often at the cost of state sovereignty.

3. Globalization, Development & Human Rights

• Positive Linkages
  • Free trade can promote civil and political rights, e.g.,:
    • Reduced tariffs on mosquito nets → public health gains
    • Economic openness can challenge authoritarianism.
• Tensions & Challenges
  • Human rights obligations often constrained by trade/investment law.
  • “Chilling effect”: fear of violating trade/investment rules may deter states from adopting progressive social or environmental measures.
  • WTO rulings have sometimes invalidated public health/environmental laws (e.g., toxic imports, IP access to medicines under TRIPS).
  • WTO allows exceptions (e.g., Article XX), but they are narrow and inconsistently upheld.

4. Trade, Human Rights & Normative Conflicts

• Trade rules and International Human Rights Law (IHRL) have evolved separately.
• Trade law: bottom-up, inductive (incremental treaties).
• Human rights: top-down, ambitious (norm-driven).
• Enforcement asymmetry:
  • Trade law: effective WTO dispute resolution.
  • Human rights: limited global enforcement (stronger at regional or national levels).
• Overlap: Both rely on non-discrimination; both recognize positive & negative rights.

5. Geoeconomic Order & the Erosion of Economic Legalism

• From Globalization to Geoeconomics
  • Post-2008 crisis → shift from liberal globalization to strategic rivalry (esp. U.S.–China).
  • Trade now seen in zero-sum (relative gains) rather than positive-sum terms.
  • States are now:
    • Weaponizing interdependence (e.g., SWIFT, rare earths).
    • Prioritizing “economic security” over trade commitments.
• US Strategy (De-legalization)
  1. Redefined national security to include economic security.
  2. Undermined WTO dispute system (e.g., Appellate Body paralysis).
  3. Increased executive control (CFIUS reviews).
  4. Sought non-binding trade deals (e.g., China deal without 3rd-party enforcement).
• China’s Response
  • Pushes for cyber-sovereignty and rejects global data-sharing norms.
  • Focus on technological innovation to reduce dependency and ascend value chains.

6. Trade & Environment

• US Endangered Species Act (ESA) applies extraterritorially → creates WTO conflict.
• GATT Article XX allows environmental exceptions but narrowly interpreted.
• Tuna-Dolphin case: WTO rejected US unilateral embargo on Mexican tuna → considered discriminatory.
• WTO favors multilateral solutions, disfavors unilateral environmental restrictions.
• Tension between trade liberalization and environmental protection remains unresolved.

7. Concluding Themes

• Norm Hierarchy & Coordination
  • Human rights may trump trade law only if jus cogens (peremptory norms).
  • Debate ongoing: coordination vs. hierarchy between trade and HR norms.
• Cross-Influence
  • Trade can promote governance, democracy, and HR (especially civil/political).
  • But it can undermine ESC rights (health, food, housing) when liberalization leads to deregulation or cuts in social spending.
• Trade Rules Can Support HR When…
  • Framed as tools for sanctions or sustainable development.
  • Used to reinforce labor standards, IPR reforms, or access to essential goods.
• Key Takeaways for Understanding
  • Trade and investment law have deep economic logic but often conflict with social justice goals.
  • There’s growing awareness of the need to reconcile economic law with human rights and environmental protection.
  • The emerging geoeconomic order reshapes the balance between sovereignty, security, and globalization.

10.1: International Human Rights Law

Introduction & Section 1 – Foundations of International Human Rights Law

• Begins with affirming faith in fundamental human rights and equal rights.
  • However, not a human rights treaty per se — it provides context but lacks enforceable HR provisions.
• Rise of the Individual in International Law (IL)
  • Shift from state-centric to individual-focused IL.
  • Human rights (HR) allow individuals to be subjects of IL, not just objects.
• Theories on the Nature of Human Rights
  1. Natural Law – HR are inherent by virtue of being human.
  2. Legal Positivism – HR exist only if recognized by states/law.
  3. HR as Fulfillment of Justice – Justice is the end goal, HR the means.
  4. HR = Legal Protection of Human Dignity
  5. Government Respect & Concern – States must treat citizens equally and respectfully.
• Alternative Perspectives
  • Feminist, third-world, and anti-colonial critiques enrich IHRL by challenging Western bias.

Sections 1 & 2 – Nature & Classification of Human Rights

• Key Questions
  1. Can human rights be limited?
  2. Can some human rights be prioritized over others (e.g., China prioritizing ESCRs)?
• Three Categories of Human Rights
  1. Civil & Political Rights (CPRs) – e.g., free speech, fair trial.
  2. Economic, Social & Cultural Rights (ESCRs) – e.g., education, healthcare.
  3. Group Rights – e.g., self-determination, protection from genocide.
• Important: All are interdependent and equal under international law, despite historical CPR prioritization in the West.

Section 2 – UDHR and Universality

• Universal Declaration of Human Rights (1948)
  • Influential, though not binding.
  • Many of its rights now reflect customary international law (CIL).
• Universality vs. Cultural Relativism
  • HR are said to be universal, but their application varies culturally.
  • ‘Margin of appreciation’ allows states some leeway based on cultural/social contexts.
• Impact on Sovereignty
  • Every state has ratified at least one HR treaty.
  • HR law challenges absolute sovereignty.
• Power of HR Discourse
  • States rarely admit to violating HR — instead:
  • Deny facts,
  • Justify under limitations or derogations.

Sections 2 & 3 – Enforcement & Norm Hierarchies

• International Protection Framework

  • Documents:
    • UN Charter,
    • UDHR,
    • ICCPR (Civil & Political),
    • ICESCR (Econ, Social, Cultural),
    • These 3 = International Bill of Rights.
  • Mechanisms:
    • UN Charter-based bodies (e.g., HRC, OHCHR),
    • Treaty bodies,
    • Customary International Law (CIL).
  • Territorial Jurisdiction
    • HR obligations usually apply within territory and jurisdiction, unless otherwise stated (e.g., Guantanamo).
  • Key Jurisprudence
    • Racial Discrimination – Namibia Opinion
    • Torture – Filartiga, Furundzija, A v Secretary of State
  • Hierarchy of Norms
    • Some norms are binding under CIL.
    • Some norms (e.g., torture prohibition) have jus cogens status – no derogation allowed.
      Sections 4 & 5 – Regional Human Rights Systems

• Regional Systems

  • Europe: Strong enforcement via ECtHR.
  • Americas & Africa: Two-tier system (Commission + Court).
  • Asia: No regional framework — major gap.
  • Advantages of Regional Treaties
    • Culturally relevant → higher likelihood of ratification and compliance.
      Limits on HR
  1. General limitations (e.g., protection of morals – Handyside v UK)
  2. Reservations to treaties
  3. Derogations during emergencies (e.g., national security)
     Examples

• Toonen v Australia – Decriminalization of homosexuality.

• SAS v France – Ban on religious symbols in public.

  • HR may be limited to balance individual rights with societal interests.

Section 6 – Collective Rights & Self-Determination

• Collective Rights
  • Rights held by groups, not just individuals.
  • E.g., Genocide prohibition, Self-determination.
  • Key Documents on Self-Determination
  1. 1945 UN Charter
  2. 1966 ICCPR & ICESCR
  3. 1970 UNGA Declaration (Friendly Relations)
  4. 2007 UNGA Declaration on Indigenous Peoples
• Clarifying ‘Peoples’
  • Difficult to define → who qualifies?
  • Namibia Opinion: Self-determination is CIL.
• Application of Self-Determination
  • Especially relevant to colonial contexts.
  • Controversial in non-colonial contexts:
    • Western Sahara: Right to be consulted.
    • Kosovo Opinion: No IL prohibition on declaring independence, but no affirmation of legality either.
• Conflict & HR
  • HR obligations apply even in conflict situations.
  • Sometimes shift to International Humanitarian Law (IHL).
• Summary of Core Themes
  • HR have moved from theory to enforceable IL obligations.
  • No universal enforcement body, but strong global + regional systems.
  • Rights are interrelated, culturally nuanced, and often politically contested.
  • Some norms (e.g., torture prohibition) are absolute (jus cogens).
  • Right to self-determination remains politically sensitive and legally complex.

10.2: The Laws of War

• No universal legal definition of WMDs under treaty law or customary international law (CIL).
• Three main WMD categories: Nuclear, Chemical, Biological—each governed by different legal regimes.
• Arms control treaties form the core of international legal efforts (e.g., NPT, CWC, BWC).
• WMDs exist at the intersection of national security concerns and international legal constraints.

2. Current Legal Status

• Use of WMDs is broadly restricted under CIL, but development and possession are not universally prohibited unless covered by specific treaties.
• Treaty on the Prohibition of Nuclear Weapons (TPNW) (2020): Aims to outlaw nuclear weapons entirely, but not widely ratified by nuclear-armed states.

3. Post-Cold War Challenges

• Proliferation risks: rogue states, terrorist groups, and advancing technologies (e.g., mini-nukes).
• Legal developments:
  • Justifications for preemptive self-defense (e.g., U.S. Iraq 2003).
  • Criminalization of WMD terrorism.
  • Proposals to internationally criminalize possession/development of chemical and biological weapons.

4. The Nuclear Taboo

• Key insight: The taboo is not the act of non-use itself, but the normative belief that nuclear weapons are unacceptable.
• Normative effects:
  • Regulative: Constrains behavior.
  • Constitutive: Shapes identities and permissible behavior (e.g.,