Aantekeningen bij de hoorcolleges van Public International Law

Hoorcollege week 1

Aim of Public International law: regulating international relations through norms:

• Order and stability

• Justice

• Dispute-settlement

It’s not only about nations, but also about intergovernmental organisations and sometimes even people.

1648: treaty of westfahlen → it ended the thirty-year war. For the first time in human history all sovereign states were equal. This meant that every state had territorial sovereignty.

Aim of Private International law: regulating legal relations between individuals (can also include corporations as such)

International Law developed from law of co-existence to law of cooperation and to law of integration.

Case 1: Nicaragua

There was a war between the SU and the US. US supported the rebels, the contras. Nicaragua went to court, saying that the US violated their borders and that force had been used against Nicaragua. The case is important for the use of force and state responsibility. Art. 2(4) of human/united nations charter could not be applied because the US did not accept the jurisdiction

Werkgroep 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

Hoorcollege week 2

Relationship between sources of international law

There are also other sources of international law not listed in article 38, namely:

• Decisions of international organizations (only the binding decisions)

• Unilateral acts (nuclear tests)

• Soft law, it looks like law but it are basically political norms. States comply with those laws because they don’t want to have a bad name.

Treaty and custom are not more important than one another. The way it is solved is on basis of lex specialis and lex posterior.

Lex specialis: more specific law prevails over more common law.

Lex posterior: younger law prevails over older law.

Jus cogens: peremptory norms, more important than any other source of international law!

Treaty Law (treaty, convention, statute, charter, agreement, protocol are all other words with the same meaning)  Vienna Convention on the Law of Treaties (VCLT)

VCLT only deals with treaties between states.

Treaties are only applicable to the parties. (art. 34 VCLT)

Treaties are formed in the following way and order:

• Adoption

• Signature

• Approval

• Ratification (becoming a party)

  • (accession) if a party is too late to sign

• entry into force

Interpretation of treaties:

• Textual approach

• One looks only at the tekst that is in the treaty. In Dutch this approach is called “Grammaticale interpretatie.”

• Intention of the parties (travaux préparatoires)

• Context (Theleologisch)

Invalidity of treaties

Treaties can become invalid in a variety of ways, namely by:

• Incompatibility with international law of the state (art. 46 VCLT)

• Error

• Fraud

• Corruption

• Coercion

• Jus cogens

Termination of treaties

• Consent

• Denunciation: one doesn’t want to be a party anymore.

• Material breach

• Supervening events

• Fundamental change of circumstances

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.

Hoorcollege week 3

Monism/Dualism

International law and domestic law are both in the same big system, working belong side each other. This is called monism. Domestic law and international law are separate spheres. In order to use international law in the nation sphere, it has to be transferred first. This is called dualism. All states are equal, it doesn’t matter how big a state is, or how long is has been around for.

Who matters on the stage of international law?

The leading role is performed by states.

The supporting role is for International Organizations and individuals.

Extras:

Peoples, liberation movements, international corporations, minorities and humanity: they are not subjects of international law, but this can change in the future. There’s no set of criteria on being a subject of international law.

States

The birth of states: Peace of Westphalia (1648): The sovereign nation state.

A state is the highest authority within its jurisdiction and all states are equal. 

Criteria for statehood (Montevideo criteria):

• Permanent population

  • No minimum in numbers

  • Can be nomadic

  • Population must be distinguishable

• Defined territory

  • Boundaries and borders don’t have to be settled

  • ‘reasonable ascertainable territory’

  • size is irrelevant

• Government (with authority)

  • Self-governing people (democracy is not required)

  • Government must exercise total control.

• Capacity to enter into relations with other states.

  • Examples: business relations, conclude treaties and exchange diplomats.

Theories of recognition:

If the existence of a state is not depending on the the recognition of other states, we call it the declaratory theory. On the other hand, the constitutive theory means that the existence of a state does depend on the recognition by other states. A state can acquire territory in a variety of ways.

• Occupation

• Prescription (The territory did belong to someone but not anymore, over time the territory goes from one state to the other)

• Cession, when a state formally gives up some of its rights.

• Annexation (with force)

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.

Week 5

Sometimes a state can breach an international obligation, in this case it is important to be able to determine whether a state can be held responsible. The provisions for state responsibility can be found in the ILC Articles on Responsibility of States for Internationally Wrongful Acts. (ILC)

State responsibility is engaged when:

There was an action or omission which is attributable to the state under international law. (Either a conduct of an organ of a state, or an other entity.) Which constitutes a breach of an international obligation of the state and there is no applicable circumstance precluding wrongfulness. (Found in article 20, 21, 22, 23, 24, 25 or 26 ILC). Sources for international law = treaties, customary law

Consequences of state responsibility:

1. responsible state must stop acting wrongful (29&30 ILC)

2. responsible state must provide reparation(31), of which there are three kinds:

3. restitution (35 ILC)

4. compensation (36 ILC)

5. Satisfaction (37 ILC)

Week 6

States tried to prohibit the use of force by establishing the league covenant in 1919 and the Kellog-Briant pact in 1928. However, they failed to prohibit the use of force, because:

• They did not prohibit the use of force, but merely put pressure on states not to resort to it.

• None of them provided state parties with the right of self defense

• No sanctions against defaulters were given.

• Not all states participated.

The resolution tot his problem was the UN Charter (article 2(4))

• It prohibits use of force and threat of force.

Is a military operation legal in accordance with the law of armed conflicts? (Jus in Bello) The following sentences give the criteria that have to be fulfilled in order for a military operation to be legal. Of course the latter has to be answered negatively.

• Is there an armed conflict?

• If so, is it international or non-international?

• Is a target lawful?

• Is a measure proportionate?

• Does the measure cause unnecessary suffering?

Even if an action is legal under ius ad bellum (law on use of force), it can still be illegal under ius in Bello. (int. Humanitarian law)

The prohibition of the use of force

Prohibition of use of force (2(4) UN Charter)

As one can read in article 2(4) of the UN Charter, the use of force is prohibited. There are three exceptions though, all criteria will be listed below, with the relevant articles in the UN Charter.

• Exception 1: Self-defense (article 51 UN Charter)

  • Individual/collective

    • Armed attack

      • Classic

      • Anticipatory self-defence

        • Imminent threat

        • Threat must be overwhelming

        • Instant threat

        • Threat leaves no choice of means or time for deliberation

    • Necessity

    • Proportionality

    • Armed group? If a case deals with an armed group, things can get a little more difficult. For example: IS attacks Syria and the Netherlands wants to fight IS through self defense because they are afraid that IS will attack the Netherlands. (As has recently happened in Belgium.) In order for NL to be able to fight IS IN Syria, we have to link IS to Syria in order tob e allowed to do it. This criterion can be regarder a non-existent if a case is not about an armed group.

    • Until the security council has taken measures necessary

• Exception 2: Collective security (authorized by un security council)

  • Article 39: threat to peace and security

  • Article 40: provisional Measures

  • Article 41: non-force measures (economic sanctions, prohibition on travelling etc.)

    • The word “May” indicates that article 41 is not required per se, however it has to be examined whether there’s a non-force measure.

  • Article 42: use of force/ “all necessary means”

• Exception 3: International humanitarian law (customary law) → the goal should justify the means

If IS attacks the Netherlands, all criteria of self-defense will be fulfilled. However, to fight IS in Syria, there needs to be a link in order to be able to fight in Syria against IS. The attacks of a certain group can be attributed to a state. ARSIWA helps to establish this link.

§191-195 of the Nicaragua case defines an “armed attack”. These paragraphs are the most important in the case.

Week 7

Peaceful Dispute Settlement.

Art. 2, sub 3 of UN Charter states that states shall settle their disputed by peaceful means.

Article 33 of the UN Charter gives several ways in which a state can settle a dispute without using force. (Chapter VI of the UN Charter)

First of all, the parties to a dispute must seek a solution by:

1. 1. Negotiation  meeting by parties of the dispute (most used)

   2. Enquiry  Fact-finding mission, can be used alone or next to any other diplomatic means;

   3. Mediation  third party will actively intervene, and help the parties to find a solution.

   4. Conciliation  third party also has an active role, but even more structured. It ends with adoption of the conciliation report.

   5. Arbitration  it is a faster way to come to a conclusion than via the ICJ. Tribunals are formed after a dispute has started. This is the main difference with the Judicial Settlement.

   6. Judicial settlement (ICJ)

Arbitration and judicial settlement are the two judicial methods of dispute settlement. A, b, c and d are called the diplomatic methods.

There are four methods of accepting the jurisdiction of the ICJ. The jurisdiction is not automatically there. (article 36 of the ICJ Statute)

• Contentious jurisdiction (binding)  article 36

  • Optional clause =

  • Compromise = an agreement that can be seen as a treaty, but only fort he specific dispute.

  • Compromissory clause =

  • Forum prorogatum = everything else, by just appearing for example.

• Advisory jurisdiction (not binding)  article 65.1

Also, the claim has to be admissible by meeting three criteria:

• The claim is legally founded

• All local remedies have to be exhausted

• Nationality (link)

The World Trade Organization: substantive law. : “Shrimp/ turtle case.”

Basic principles:

• There can not be different tariffs for different countries. This is also known as the most favoured nation. (Art. I GATT)

• National treatment: When a good crosses a border, the receiving country may not sell it for a higher price than the national ‘like’ product. (art. III GATT)

There are however, some exceptions in article XX GATT.

International Economic Law

The core principles of the World Trade Organization (WTO):

• Tariffication;

  • Prohibition to use quantitive restrictions on imports and exports of goods.

• Non-discrimination of other states in relation to trade;

• National Treatment;

• Most favoured national treatment. (GATT)

(geen werkgroepen in week 7)

Week 8

The Law of the Sea

There are several zones from the baseline :

• 12 miles (territorial zone),

• 24 miles (continental shelf), until the steep drop, you can still exploit

• 200 miles (exclusive economic zone)

UNCLOS I&II were the two first sea conventions. UNCLOS I was created in 1958, and its main purpose was to codify the international law that had been established so far.

UNCLOS III came in 1982. Israel, Greece, Venezuela and the US did not sigs the convention. At the moment, 160 countries have signed the convention, but the US is still not one of them.