Public International Law (PIL) - B1 - Rechten - UU - Aantekeningen werkcolleges

Deze aantekeningen zijn gebasseerd op het het vak Public International Law (PIL) in 2015-2016.

Werkgroep week 1

Law making on national and international levels:

Legislative

On national level the legislative power lies with the stage-general and the government together. On international level however, the legislative power comes from treaties, customary law and general principles. The difference is consent to be bound. Also on a national level we have a centralized power and on international level we have an decentralized power.

Executive

On national level: the Government.

On international level: States

Judiciary

National: Courts (binding jurisdiction)

International: ICJ (International court of justice), ICC (International Criminal Court), ECtHR (European Court of Human Rights), ECJ (European Court of Justice). There’s no binding jurisdiction on international level. Agreement is needed, this is also known as consent to be bound. Sometimes there’s no treaties or customs, and we need general principles to fill in the void. International law consists of private and public law. Public international law deals with the relations between states and private international law with the relations between individuals. Public international law consists of many more fields, such as

• Criminal

• Human rights

• Law of the sea

• Etc.

When can a country use force against another country?

• Self defence (1 individual and 2 collective) Article 51 UN Charter

• Authorization of security counsel (5 permanent and 10 temporary members)

• If the government gives permission (the government of the targeted country)

Why is it so hard to fight against IS? IS is not a state, but an armed group. International law focuses primarily on states, so sometimes this leads to difficult situations. EU treaties are international law, because a treaty is one of the sources for international law. EU law on the other hand, creates laws by votes, which is binding for all member states.

Functions of international law:

• Maintaining order

• Solving international conflicts

• Preventing conflicts

In the beginning the focus of international law was on the maintenance of international peace and security, because world war II had just ended and everyone wanted to avoid another outbreak. A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. So states can’t ignore the norm. An example is genocide. Which elements determine whether a rule of customary international law exists?(North sea shelf case)

• State practice: §74 “1: extensive (applicable to more countries) 2: virtually uniform + time is not necessarily a factor

  • Objective factor

• Opinio uris: §77 “evidence of a belief that there is a certain binding rule.”

  • Subjective factor

Werkgroep week 2

To determine whether the VCLT is applicable, there are a few criteria that have to be met:

1 VCLT article 2A

• does the document fit the definition?

2 art. 4 VCLT

• was the treaty concluded after 27/01/1980. The Vienna convention only applies to treaties that have been concluded by states after its entry into force on January 27, 1980.

3 Is the state you are dealing with a party of the VCTL? (article 5 VCLT)

Reservations

Sometimes a state only wants to ratify part of a treaty. This is possible, and to determine whether it is, we have to look at article 19 through 23 of the VCLT. Let's say that state A wants to make a reservation, we’ll look at article 19 which states that a state may formulate a reservation unless:

• the reservation is explicitly prohibited by the treaty

• OR the treaty provides that only certain reservations can be made, and the one in question is not one of them.

• OR the reservation is incompatible with the object and purpose of the treaty.

If neither one of the above is the case, the state can make a reservation, as can be found in article 20, paragraph 1. Paragraph 2 and 3 of said article provide two exceptions in which case member states or the competent organ must accept the reservation. Paragraph 5 states that a reservation can be seen as accepted when no member state makes an objection to it.

Werkgroep week 3

International law:

Under General International law we know the ICCPR, ICESCR, convention against torture, refugee convention, UDHR. They are not focused on a particular region or state.

Regional International law however, focuses on specific regions, for example the African charter on human and people rights, American convention on human rights, etc.

They hold more specific rules than general International law.

The difference between ICCPR and ICESCR

The difference between ICCPR and ICESCR is that ICCPR is mostly concerned with classical (negative) rights. This means that the rights discourage the government to act in a certain way. An example is the right to freedom of speech. ICESCR is more positive law, because these rights tell the state to act in a certain way. Some countries didn’t want to join the ICESCR, because it deals with things that are a luxury they can’t afford. These human rights are made especially for individuals. A subject of international law is one who possesses legal personality in international law, meaning one who is a subject of international law so as itself to enjoy rights, duties or powers established in international law, and generally, the capacity to act on the international plane either directly, or through another state. This means that individuals can be subjects of international law as well.

Admissibility criteria to go to international court (art. 34 and 35 Convention for the protection of human rights and fundamental freedoms  ECHR):

Art. 34:

• There has to be a person, non-governmental organization or group of individuals

• That has been the victim of a violation

• By one of the high contracting parties (states)

Art. 35:

• All domestic remedies have to be exhausted. (supreme court – hoge raad)

• Within a period of 6 months after final decision of that domestic remedy

• It can’t be anonymous or substantially the same as a matter that has already been examined.

• Inadmissible if:

  • It is manifestly ill-founded

  • It abuses the right of application

• Significant disadvantage

The ECHR gives binding decisions!

If the court talks about “necessary in a democratic society”, it’s really about Proportionality! So whether the purpose meets the goal. The margin of appreciation is important to review the proportionality:

Wide or narrow, it’s about the room that a country gets.

With a broader margin of appreciation, the court lets the state decide itself whether something is proportionate or not. With a narrow margin the court fully checks itself whether it’s proportionate.

An interference with a right can be justified, so it doesn’t automatically mean that it’s also in interference with the relevant article.

Admissibility criteria ICCPR, the International Covenant on Civil and Political Rights (art. 1, 2, 3, 4 and 5 of the first optional protocol)

• There has to be an individual;

• And a violation of the ICCPR (any of the articles in Part III of the covenant)

• Art. 1 must be fulfilled

• All domestic remedies have to have been exhausted

• Art. 3

• Not being examined by another international procedure. (The case may have already been examined)

• Communication has to be written

The ICCPR doesn’t give binding decisions!

Werkgroep week 4

Immunity and jurisdiction of ICC.

Arrest Warrant-case §60, 61 states that although certain people can enjoy immunity, they can still be prosecuted for certain criminal behaviour. In short: Immunity is not Impunity.

The International Court of Justice (ICJ) concerns conflicts between states, this is the difference between the ICJ and the International Criminal Court (ICC). The ICC concerns individuals. (art. 25 Rome Statute) A state party means a party that has accepted the jurisdiction of the court. (By joining the treaty or ad hoc. Art. 11 RS)

Minister of foreign affairs column is based on customary law, while the Borodin column is based on the Vienna Convention. (This was a working group question.) Admissibility is about whether a certain case can be brought before court. Jurisdiction is more about the kind of crime that has been committed, and whether that kind of crime can be brought before a certain court. Jurisdiction of the ICC (RS = Rome Statute) in a scheme:

If the security counsel refers a case, you don’t have to look at article 12, paragraph 2! The following passage comes from an essay I wrote, it will help clarify the scheme above. The first step to bringing a case before the International Criminal Court is to determine whether a certain crime falls within the jurisdiction of the ICC. Article 5 of the Rome Statute (RS) provides the crimes to which the jurisdiction of the ICC is limited, these are:

1. The crime of genocide

2. Crimes against humanity

3. War crimes

4. The crime of aggression

Article 11 RS states that the court only has jurisdiction with respect to the crimes that have been committed after the entry into force of the Rome Statute, this happened on July 1st 2002. However, if a state becomes a party to the statute after its entry into force, the court only has jurisdiction with respect to the crimes committed after the entry into force for that particular state. There is however one exception, a state can make an ad hoc declaration, in which case the court does have jurisdiction with respect to a certain case or time frame before the statute had entered into force. 

The ICC can only prosecute individuals, this becomes clear from article 25 RS. Article 12 RS gives two preconditions, only one of the two has to be met:

1. The crime has to be committed on the territory of a state party to the Rome Statute.

2. OR the perpetrator has to be a national of a state party.

The last criteria for jurisdiction is an exercise trigger, which can be found in article 13 RS. The exercise triggers are as follows:

1. The crime that appears to have been committed has been referred to the prosecutor by a state party. (In accordance with article 14 RS)

2. The crime that appears to have been committed has been referred to the prosecutor by the security Council. It is very important to note that when the security council refers a possible crime to the prosecutor, the requirements of article 12, paragraph 2 don’t have to be met. This means that through this path anyone can be convicted, regardless of whether the crime has been committed on territory of a state party or whether the perpetrator is a national of a state party.

3. The prosecutor has initiated an investigation in respect of a crime. (In accordance with article 15 RS)

If all the criteria listed above have been met, there is only one more left: Admissibility. Article 17 RS deals with the admissibility criteria; a case is inadmissible when:

1. The case is being investigated or prosecuted by a state that has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution; (However, after said investigation or prosecution it will be admissible.)

2. The case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute; (In which case admissibility will not be an option anymore.)

3. The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the court is not permitted under article 20, paragraph 3;

4. The case is not of sufficient gravity to justify further action by the court.

If one of the above is the case, it will be inadmissible before the court. Last, but not least, the court has to abide by the general principles of international law, which can be found in part 3 of the Rome Statute.