International Law Basics

Introduction to International Law

• International law is a system of law that regulates relationships between sovereign states and their rights and duties with regard to one another.
• It deals with legal issues of concern to more than one state, such as global issues like climate, human rights, economy, trade, peace, and refugees.

Types of Law

• Domestic law: private law (relationship between individuals) and public law (relationship between the government and individuals)
• International law: rules between states that are at the same level, aiming to regulate global issues

Roles of International Law

• Ensures that states can co-exist and cooperate
• Delineates the competences of states
• Regulates the interactions between states
• Ensures that states can cooperate

Features of International Law

• Horizontal legal system: no world government or legislature
• No global legislature (world parliament)
• No world court with mandatory jurisdiction
• No world police force
• Implementation depends on domestic law
• Broad and diverse, comprising multiple areas of law
• Influenced by international politics

Actors in International Law

• Subjects of international law: entities with the capacity to have rights and obligations
• Can sign treaties, have rights and duties, bring claims, and be held responsible for breaching international law
• Two types of legal personality:
  • Full legal personality: states
  • Limited legal personality: non-state actors, such as international organizations, individuals, and multinationals

States

• Defined by a defined territory, permanent population, and a government with effective powers
• Can be big or small, with varying levels of autonomy
• Territory must be sufficiently determinable, with defined borders
• Population must be permanent, not just tourists or foreigners
• Government must have effective powers, with internal and external dimensions

Creation of a State

• Four options:
  • Decolonization: based on the right to self-determination of a population
  • Dissolution: one state falls apart into two or more new states
  • Unification: two or more states form a new state
  • Secession: part of a territory secedes from the mother state, with or without consent

Legality of State Creation

• Not allowed: conquest of states by violence or war
• Exceptions: Kosovo's independence, recognized by many countries, including Belgium

Judging Claims of "New States"

• Three constituent elements of statehood: territory, population, and government
• Other factors: legality, recognition by other states, and the right to self-determination
• Legality: a new state may not be created in a way that breaches international law
• Recognition: a unilateral political act whereby a state acknowledges the status of a new state as a member of the international community
• Can be individual or collective, explicit or implicit, and is a political process### Taiwan (ROC)
• Officially called the Republic of China (ROC), but de facto an independent state not recognized by most countries, especially not by the People's Republic of China (PRC).
• PRC considers Taiwan to be part of it and claims control over Taiwan.
• ROC is no longer a member of the UN, replaced by the PRC in 1971.
• Taiwan maintains diplomatic relations with 14 out of 193 UN member states, while many countries maintain unofficial ties with Taiwan through representative offices and institutions.

Right to Self-Determination

• The right of a people to freely determine their political status and pursue their economic, social, and cultural development without interference from other states.
• Self-determination can lead to the creation of a new state, also known as the right to external self-determination.
• This right is only recognized for colonized people or people who are oppressed.
• Examples of self-determination include:
  • Palestine: entitled to self-determination, which can lead to the creation of an independent state, since they are suppressed.
  • Kosovo: the right to external self-determination was recognized because the Albanian population was suppressed by the Serbian regime.

International Organizations

• An association of two or more states that are pursuing a common objective and have their own organs.
• Constituents include:
  • Association (work together)
  • Usually established by treaty to provide legal personality
  • Pursuit of common goals
  • With its own bodies
• Examples of international organizations include:
  • The United Nations (UN)
  • Council of Europe (CoE)
  • Organisation for Security and Cooperation in Europe (OSCE)
  • North Atlantic Treaty Organisation (NATO)
  • Organisation for Economic Co-operation and Development (OECD)
  • Benelux
  • African Union

United Nations (UN)

• Founded in 1945, with headquarters in New York.
• Principal global organization, with 193 member states.
• Establishing treaty is the Charter of the United Nations.
• Targets include:
  • Protection of international peace and security
  • Socio-economic development, including poverty reduction, healthcare, and human rights protection
• Organs include:
  • General Assembly (GA)
  • Security Council (SC)
  • Economic and Social Council (ECOSOC)
  • UN Secretariat
  • International Court of Justice (ICJ)

General Assembly (UNGA)

• All UN member states have an equal footing.
• Political body, not a world parliament.
• Adopts many non-binding resolutions annually.
• Has set up various programs and funds, such as Unicef, UNHCR, and OHCHR.

Security Council (SC)

• 15 members, including 5 permanent members with veto power.
• Task is to maintain international peace and security.
• Can take binding measures, including the initiation of peacekeeping operations.

Other International Organizations

• Council of Europe (CoE): founded in 1949, with 46 members, and based in Strasbourg.
• African Union (AU): founded in 2001, with 55 member states, and based in Addis Ababa.
• Organisation for Security and Cooperation in Europe (OSCE): founded in 1994, with 57 members, and based in Vienna.
• North Atlantic Treaty Organisation (NATO): founded in 1949, with 31 members, and based in Brussels.
• Organisation for Economic Co-operation and Development (OECD): founded in 1960, with 38 members, and based in Paris.
• Benelux: founded in 1958, with 3 members, and based in Brussels.

Individuals and Multinationals

• Individuals became subjects of international law after World War II.

• They have rights and obligations under international law, including international human rights.

• They can be held responsible before an international court in case they committed an international crime.

• Multinationals are private corporations that are active in several countries.

• They have limited legal personality in international law, including:

  • Rights under investment-protection treaties.
  • Adoption of internal codes of conduct, such as respect for human rights.

• They cannot make treaties or be held responsible before an international court.### International Law and International Organisations

• International law is a system of rules and principles that govern the relationships between states and international organisations.

Characteristics of International Law

• Not a unified system of law, but rather a collection of rules and principles that are binding on states and international organisations.
• No single, central authority to enforce international law.
• States and international organisations are sovereign entities that are equal in status.

Sources of International Law

• Treaties: written agreements between states or international organisations that are governed by international law.
• Custom: unwritten rules and principles that are based on the practices and customs of states and international organisations.
• Decisions of international organisations: decisions made by international organisations, such as the United Nations, that are binding on their member states.
• Jus Cogens: fundamental, overriding principles of international law that are non-derogable and universal in application.

Treaties

• A treaty is a contract between two or more international subjects with treaty-making capacity, governed by international law.
• Types of treaties:
  • Bilateral treaties: between two states.
  • Multilateral treaties: between three or more states.
  • Closed treaties: open to a specific group of states.
  • Open treaties: open to all states.
  • Treaties concluded within an international organisation (IO): treaties concluded by an IO on behalf of its member states.
• States can make reservations: unilateral statements that may declare not to be bound by one or more provisions of a treaty.

Customary Law

• Definition: "The way things always have been done becomes the way things must be done."
• Arises when a particular way of behaving is:
  • Followed as a general practice among states (objective element).
  • Accepted by those states as legally binding (subjective element, opinio juris).
• Binds all states, unless a state persistently objects.
• Examples: prohibition of use of force, treaties must be ratified, no nation may claim ownership of outer space.

Jus Cogens

• Certain fundamental, overriding principles of international law from which no derogation is ever permitted.
• Examples: prohibition of death penalty for juvenile offenders, prohibition of genocide, prohibition of torture.

Decisions of International Organisations (IO)

• Two types:
  • Binding: decisions made by an IO that are legally binding on its member states.
  • Non-binding: decisions made by an IO that are not legally binding on its member states.

Means of Conflict Resolution

• Diplomatic means:
  • Negotiation: discussions between the parties having a conflict with a view to settle the dispute.
  • Good offices: a third party offers its services to remedy a communication failure between states in dispute.
  • Mediation: a third party is actively involved in a conflict resolution, proposing solutions to the parties.
  • Enquiry: a third party is asked to investigate the facts underlying the dispute and to report on them.
• Jurisdictional means:
  • Arbitration: dispute resolution by a third party, chosen by the parties and granted the power to make a binding decision.
  • Settlement of disputes by a court: the International Court of Justice (ICJ) is the primary judicial organ of the United Nations.

International Court of Justice (ICJ)

• Seated in the Hague, Peace Palace.
• One of the main bodies of the United Nations.
• All UN member states are ipso facto parties to the ICJ Statute.
• Has the most general jurisdiction of all international tribunals.
• Can hear all kinds of cases, including border disputes, environmental issues, human rights issues, etc.
• Main task: dispute settlement between states.
• Advisory proceedings: issuing opinions at the request of the UN General Assembly and the UN Security Council.

Unilateral Measures by States

• A state takes unilateral measures to induce another state to fulfil its obligations.
• Two types of reactions:
  • Retortion: a lawful reaction to a breach of international law.
  • Reprisal: a reaction that is not lawful, but is permitted because the other state already breached international law.

Reprisals

• A limited and deliberate violation of international law to punish another sovereign state that has already broken them.
• In other words, it's not lawful, but it becomes lawful because the other state breached the international law.
• Some reprisals are forbidden, e.g., use of armed force, countermeasures that violate human rights.

Pacific Settlement of Disputes by the UN Security Council (UNSC)

• Step 1: Non-binding recommendations.
• Step 2: Coercive measures.
• Step 3: Use of authorities.

Use of Armed Force

• In principle, the use of armed force is prohibited.
• Legal basis: Article 2(4) UN Charter, customary law, and jus cogens.
• Violence against what/whom? Against the territory of a state, against organs or property of one state in another state.
• Not applicable: within a state, if the state consents.

Exceptions to the Prohibition of the Use of Armed Force

• Self-defence: a State that is the victim of an armed attack has the right to self-defence.
• Collective self-defence: the use of force by one or more States to assist a State against which an armed attack has been carried out.
• Use of armed force after a decision of the UNSC.

Test your knowledge of international law, including its definition, role, and scope. Learn about the differences between domestic and public law, and explore topics like international private law and self-determination.