Basics of International Law PDF

COURSE BOOK This course book is the updated version of the „Basics of International Law” Course Book, University of Sze- ged, 2017 written by Orsolya Johanna Sziebig Corrected and updated by Autohor All rights reserved Dr. Sziebig Orsolya Johanna PhD University of Szeged Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Table of Contents Chapter I......................................................................................................................................................................... 4 History of International Law....................................................................................................................................... 4 History of ancient times........................................................................................................................................... 4 History of middle ages............................................................................................................................................. 6 History of modern international law..................................................................................................................... 7 NOTA BENE....................................................................................................................................................11 Chapter 2.......................................................................................................................................................................12 Subjects of international law......................................................................................................................................12 States.........................................................................................................................................................................12 International Organizations..................................................................................................................................16 Individuals................................................................................................................................................................17 Peoples and Nations...............................................................................................................................................17 Minorities.................................................................................................................................................................17 Mankind....................................................................................................................................................................18 The Sovereign Order of Malta..............................................................................................................................18 The Holy See and Vatican City.............................................................................................................................18 International Committee of the Red Cross........................................................................................................18 Transnational companies.......................................................................................................................................18 NOTA BENE....................................................................................................................................................19 Chapter 3.....................................................................................................................................................................20 Sources of international law..................................................................................................................................20 b.) Customary international law......................................................................................................................21 Codification of international customary law...........................................................................................23 c.) The general principles of law recognized by civilized nations........................................................24 Unilateral acts of States......................................................................................................................................24 Jus cogens...............................................................................................................................................................25 Judicial decisions and the teachings of the most highly qualified publicists...................................26 Soft law....................................................................................................................................................................26 Ex aueque et bono...............................................................................................................................................26 1 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. International law and municipal law.............................................................................................................27 NOTA BENE...................................................................................................................................................28 Chapter 4.....................................................................................................................................................................29 Statehood.....................................................................................................................................................................29 The criteria of statehood....................................................................................................................................29 Recognition of States..........................................................................................................................................30 The recognition can be classified as the following....................................................................................31 Effect of the recognition................................................................................................................................31 Procedure of recognition...............................................................................................................................32 Way of Recognition.........................................................................................................................................32 The legal personality of States.........................................................................................................................33 NOTA BENE.......................................................................................................................................................33 RECOMMENDED READING.....................................................................................................................34 Chapter 5.....................................................................................................................................................................35 Law of Treaties..........................................................................................................................................................35 Definition of treaty...............................................................................................................................................35 Classification of treaties.....................................................................................................................................36 The general structure of treaties......................................................................................................................38 The creation of international treaties.............................................................................................................38 Reservations...........................................................................................................................................................45 Interpretation of treaties....................................................................................................................................45 Invalidity and termination of treaties............................................................................................................47 I. Invalidity........................................................................................................................................................47 I.1. Absolute Invalidity...................................................................................................................................47 I.2. Relative Invalidity....................................................................................................................................48 The procedure for invalidation and the Consequences of invalidity...............................................50 II. Termination.................................................................................................................................................50 II.1. Based on the will of the parties..........................................................................................................50 II. 2. Based on the general rules of international law...........................................................................52 Consequences of termination......................................................................................................................54 2 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. NOTA BENE.......................................................................................................................................................55 RECOMMENDED READING.....................................................................................................................55 Chapter 6.....................................................................................................................................................................56 The Peaceful Settlement of International Disputes.......................................................................................56 Definition of dispute...........................................................................................................................................56 Legal Background...............................................................................................................................................57 The methods of dispute settlement................................................................................................................59 Diplomatic (non-adjudicatory) Procedures............................................................................................59 Judicial Settlement..........................................................................................................................................63 International Court of Justice (ICJ)...........................................................................................................66 NOTA BENE...................................................................................................................................................71 RECOMMENDED READING.................................................................................................................71 Chapter 7.....................................................................................................................................................................72 Responsibility of States...........................................................................................................................................72 The structure of the Draft..................................................................................................................................72 Principles of International Responsibility....................................................................................................73 The constituent elements of State responsibility.......................................................................................73 Legal consequences of International Responsibility................................................................................78 Serious breach.......................................................................................................................................................79 The implementation of State responsibility into practice.......................................................................79 Responsibility for high-risk activities............................................................................................................80 NOTA BENE.......................................................................................................................................................81 RECOMMENDED READING.....................................................................................................................81 3 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Chapter I. History of International Law Several scholars raised the question regarding the nature and definition of international law. The role of international law and the issue of how it is formed are also essential factors. Nowadays, international law has a significant influence on domestic law via international treaties, conventions and the general rules of international law. The States adopt, modify and in some cases, exclude international legal norms. International law mainly referred to as a creation of the Western nations. On the other hand, historically, it's a more complex issue because ancient countries and States had a great influence on the development of international law. In this chapter, you can learn more about the history of international law from ancient times to the modern ages. History of ancient times The written international law is more than thousands years old. The oldest international law docu- ments are guarded at the Louvre in Paris as part of the exhibition 'The beginnings of writing'. The most important memories of human civilisation are connecting to ancient Mesopotamia. The old- est monuments are from the 30-25th century B.C. The border dispute between Uruk and Lagash results in the first known international Treaty, in the form of a cone-shaped document, made of stone and the Treaty not just settled the dispute but also envisaged a sanction in case of breaching.1 One of the significant objects is a cone-shaped document, known as the Cone of En- metena, the king of Lagash.2 Lagash (modern: Tell al-Hiba) was also known as Sirpurla by the Sumerians. It was located to the north-west of the confluence of the Euphrates and Tigris. It was one of the oldest cities in Sumer and also the home of the E-Ninnu temple (the shrine of Nin-girsu (or Ninib, or Ninurta) the patron god of Lagash). Nearby Girsu was the religious centre for the State. Lagash became one of the leading players in Sumerian politics, alongside Ur and Uruk.3 Also, important memories are the clay tablets from the Acadian times, again referring alliance contracts between cities of Mesopotamia, such as Agade and Awan (around 23th century B.C.).4 Major monuments remained from the Hittite times, around 13th century B.C. The Kadesh Treaty was adopted by the help of the envoys of Ramses II, the Egyptian pharaoh, and Emperor Hattusilis III. They finally concluded one of the oldest peace treaties in history. The peace treaty ended the 1 KOVÁCS 2011. p. 19. 2 https://www.cemml.colostate.edu/cultural/09476/images/iraq02-03t04-960w.jpg 3 http://www.historyfiles.co.uk/KingListsMiddEast/MesopotamiaLagash.htm 4 KOVÁCS 2011. p. 20. 4 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Egyptian Hittite war that lasted more than 80 years. The two ancient superpowers finally ended the war with the Treaty in 1276 BC. The Kadesh Treaty is not the oldest, but it is the oldest known that was concluded between two independent States with equal power and status. Unfortunately, the original Treaty that was carved to a silver table was disappeared, but several replicas were found.5 It's well known that the middle and central-eastern nations were using intermediary languages, e.g. Aramaic. They were familiar with the institution of diplomatic protection, the inviolability of envoys and with some protocol rules such as bestowal. Regarding the pottery tables from Hittite gardens, they used arbitration as a dispute resolution method.6 The long and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also crucial in the development of international law. The Greek city-states constituted significant sources for the evolution of the international legal system by the basic notions of governance, political relations, and the interaction of independent units.7 The nations of the ancient times were contesting all the time, and new war outbreaks were com- mon. Several nations were ruthless even with the prisoners of war or with the civilians. Some legal norms were accepted by the States and City-States to prevent massive ferocity. On the other hand, these norms were not widely accepted, and they were not legally binding. Assyrians are famous for their cruelty.8 The Roman Empire had a significant influence on international law, and many of the concepts that today brace the international legal order were established during the Roman Empire. One example is the jus gentium (meaning: 'law of nations'), for example, was invented by the Romans to govern the status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal application. In the Middle Ages, the idea of natural law became the intellectual foundation of the new discipline of the law of nations, regarded as that part of natural law that applied to the relations between sovereign States.9 Natural law had been infused with religious principles through the writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–1274), 5 http://www.documentarytube.com/articles/egyptian-hittite-peace-treaty--one-of-the-oldest-treaties-in-the-world 6 KOVÁCS 2011. pp. 20-21. 7 https://www.britannica.com/topic/international-law/Historical-development 8 KOVÁCS 2011. p. 21. 9 https://www.britannica.com/topic/international-law/Historical-development 5 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. History of middle ages In the middle ages, the most powerful international law instruments were the peace treaties, alli- ances and dynastic marriages. The great separation ended the unity of Christianity. The beforemen- tioned happening can be called the most significant medieval schism, so the East-West schism divided Christendom into Western (Roman Catholic) and Eastern (Orthodox) branches. It began in 1054 as a result of various disputes and actions, and it has never been healed. Pope Paul VI and the ecumenical patriarch Athenagoras I abolished the mutual ex-communications of the pope and the patriarch of Constantinople. Later, another significant medieval schism was the Western Schism between the rival popes of Rome and Avignon and even a third pope. The greatest of the Christian schisms was that involving the Protestant Reformation and the division from Rome.10 Among the documents that were adopted in these years, the Dictatus Papae -‘Those Things Dic- tated by the Pope' (Pope Gregory VII 1075.) has to be highlighted. The infallibility of the Roman church was stated: "That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness."11 At the field of war times, the idea of chivalry (the sum of the ideal qualifications of a knight, including courtesy, generosity, valor, and skill in arms) was followed and breached in many cases. On the other hand, the first international tribunal established to call Peter von Hagenbach to ac- count who has violated the rules of war.12 The Treaty of Tordesillas (7 June 1494.) is an agreement between Spain and Portugal accommo- dated by Pope Alexander IV. The Treaty aimed at settling conflicts over lands newly discovered or explored by Christopher Columbus and other late 15th century voyagers.13 The Hanseatic League (Hansa alliance) was an alliance of trading goods that established and maintained a trade monopoly along the coast of Northern Europe, from the Baltic to the North Sea, during the Late Middle Ages and Early modern period (13-17th century A.D.). The international sea shipping and customary law were summarised in written form: in the Catalan Consolat del Mar (collection of Mediterranean maritime customs and ordinances in the Catalan language, 1474.). 10 https://www.britannica.com/topic/schism 11 The Dictates of the Pope. point 22. https://www.usna.edu/Users/history/abels/hh315/dictatus-papae.html 12 „After it was discovered that his troops had raped and killed innocent civilians and pillaged their property during the occupation of Breisach, Germany, Hagenbach was tried before a tribunal of twenty-eight judges from the allied states of the Holy Roman Empire, which at that time included Austria, Bohemia, Luxembourg, Milan, the Netherlands, and Switzerland. Hagenbach was found guilty of murder, rape, and other crimes against the 'laws of God and man', stripped of his knighthood, and sentenced to death” in: Scharf, Michael and Schabas, William, Slobodan Milosevic On Trial: A Companion (2002) 13 https://www.britannica.com/event/Treaty-of-Tordesillas 6 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. History of modern international law Geographical discovery had a significant influence on the development of the European States and to international law as well. The possibility of colonisation and world trade formed the picture of western European countries; meanwhile, the central and eastern European countries were fallen behind.14 Alberico Gentili (1552-1608), Italian scholar had a great influence on international law. In his main book De jure Belli, published in 1598, he provided a comprehensive discussion on the law of war and the law of treaties. Gentili became a professor in Oxford, called the originator of the secular school of thought in international law.15 Hugo Grotius was born in 1583 in the Netherlands, and later he has been called the father of international law. He mastered history, theology, mathematics and law as well. His primary work, De Jure Belli ac Pacis, was written between 1623 and 1624. Grotius retrained the theoretical distinc- tion between a just and unjust law and considered justice essential. To add, his work at the law of the sea was enduring. Besides, he proclaimed the freedom of seas and opposed closed sea concept.16 Two different primary schools can be identified. Firstly, the naturalist school (Samuel Pufendorf (1632-1694)) who identified international law entirely with the law of nature. On the other hand, the other school is called positivism (Richard Zouche (1590-1660) and Bynkershoek (1673- 1743)) which distinguished between international law and the law of nature and had a more prac- tical concept. Positivism developed as a modern nation-state system after the peace of Westphalia in 1648. Both positivism and naturalism appeared in the work of Vattel (1717-1767) who was a Swiss lawyer. His main work is the Droit des Gens that based on natural law but practically oriented. He introduced the doctrine of the equality of States into international law.17 The above mentioned Westphalia Treaty was one of the main documents of international law in early modern history. The Westphalia area of north-western Germany and also the name of the Treaty that concluded the famous Thirty Years' War. The Thirty Years' War was one of the most destructive conflicts in the history of Europe. It was a series of connected wars began in 1618 when the Austrian Habsburgs tried to impose Roman Catholicism on their Protestant subjects in Bohe- mia. It pitted Protestant against Catholic, the Holy Roman Empire against France, the German princes and princelings against the emperor and each other, and France against the Habsburgs of Spain. The Swedes, the Danes, the Poles, the Russians, the Dutch and the Swiss were all dragged 14 KOVÁCS 2011. p. 31. 15 SHAW 2008. p. 23. 16 SHAW 2008. pp. 23-24. 17 SHAW 2008. pp. 24-26. 7 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. in or dived in. Commercial interests and rivalries played a part, as did religion and power politics. The six-month-long peace conference was opened in Münster and Osnabrück in December 1644 with the involvement of 194 States.18 The Treaty itself not just concluded the devastating war in Europe but also provides crucial international law principles such as the foundation of the modern state system and articulating the concept of territorial sovereignty. The Peace of Westphalia con- firmed the Peace of Augsburg (1555), which had granted Lutherans religious tolerance in the em- pire.19 The Westphalia Peace Conference just was a beginning in a row that led to the Congress of Vi- enna, another main event of international relations. The previous conferences were: in Nijmegen (1678–1679), in Rijswijk (1697), in Utrecht (1713), in Vienna (1738), in Aachen (1748), and Paris (1763) to the Paris peace conference that ended the American War of Independence (1783). After more than two decades of war following the French Revolution, the major event of the Congress of Vienna marked the establishment of a new political and legal order for Europe. The defeat of Napoleon (1769–1821) in 1813–1814 by a vast coalition of powers under the leadership of Britain, Russia, Austria, and Prussia allowed the victorious powers to stabilise Europe. They intended to do by containing the power of France and recreating the balance between the great forces. The Vienna order was built on the principle that the great powers, a group into which France retook its traditional place, would take shared responsibility for the general peace and stability of Europe. The great power principle' also determined the congress system, because the necessary negotiations and decisions took place in the committees of five (Britain, Russia, Austria, Prussia, and France) and of eight (also including Spain, Sweden, and Portugal).20 The Vienna Conference adopted a policy to restore the status quo ante bellum (the situation as it was before the war), in practice it meant to return to 1793 as far as possible. The Congress of Vienna was just a first step in the row of Congresses which have been called as the 'Congress System' although it was never a system. The meaning of the 'Congress System' is that diplomats felt that they should work closely and meet regularly in peacetime to preserve the peace. It was not a proper treaty but a 'gentlemen's agreement' which is a verbal agreement. It was decided that when and where conflict could lead to international war, a congress would meet to talk it out first. The fol- lowing conferences were: 1815 Congress of Vienna, 1818 Congress of Aix-la-Chapelle, 1820 Con- gress of Troppau, 1821 Congress of Laibach and finally, 1822 Congress of Verona.21 18 http://www.historytoday.com/richard-cavendish/treaty-westphalia 19 https://www.britannica.com/event/Peace-of-Westphalia 20 Randall Lesaffer: The Congress of Vienna (1814–1815) http://opil.ouplaw.com/page/congress-vienna-1814-1815 21 Marjie Bloy, Ph.D., Senior Research Fellow, National University of Singapore: The Congress of Vienna, 1 November 1814 - 8 June 1815 http://www.victorianweb.org/history/forpol/vienna.html 8 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. After the Vienna Conference, the international law became 'Eurocentric' to preserve the so-called civilised, Christian States. In comparison, international law became geographically internationalised because of the expansion of European powers.22 President James Monroe enunciated the Monroe Doctrine in his message to the Congress in 1923 (2 December). Declaring that the Old World and New World had different systems and must re- main distinct spheres, Monroe made four essential points: (1) the United States would not interfere in the internal affairs of or the wars between European powers; (2) the United States recognised and would not interfere with existing colonies and dependencies in the Western Hemisphere; (3) the Western Hemisphere was closed to future colonisation; and (4) any attempt by a European power to oppress or control any nation in the Western Hemisphere would be viewed as a hostile act against the United States.23 The USA had constant territorial growth because of the sales contracts that were first proceeded with Napoleon (1803, Louisiana) than in 1867 with Russia (Alaska). Some regions became part of the States after wars, e.g. New-Mexico, Texas, California and Florida.24 The development of military technology and the grown destructive power of weapons have resulted in a multiplied danger in case of armed conflicts. After the Battle of Solferino, the Austri- ans lost 14,000 men killed and wounded and more than 8,000 missing or prisoners; the Franco- Piedmontese lost 15,000 dead and injured and more than 2,000 missing or prisoners. These heavy casualties contributed to Napoleon III's decision to seek the truce with Austria that effectively ended the Second War of Italian Independence. The bloodshed also inspired Henri Dunant to lead the movement to establish the International Red Cross.25 That was the time when the humani- sation of conflicts became a real concept for the international community, and as a first step, the Geneva Convention was accepted in 1864.26 The Hague Peace Conferences27 in 1899 and 1907 irrevocably influenced international law and settled the will of States to solve the disputes in a peaceful way. Besides, international courts were created. On the other hand, in the 20th century, the whole globe had to face the most devastating wars of mankind. The First World War not just undermined the concept of a dynamic and optimistic Europe and the century of peace but also ended the self-confidence of European superpowers and the idea of 22 SHAW 2008. p. 27. 23 https://www.britannica.com/event/Monroe-Doctrine 24 KOVÁCS 2011. p. 36. 25 https://www.britannica.com/event/Battle-of-Solferino 26 SHAW 2008. p. 37. 27 See: Chapter 6. 9 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. European civilisation.28 Speaking before the U.S. Congress on 8 January 1918, President Woodrow Wilson enumerated the last of his Fourteen Points, which called for a "general association of na- tions…formed under specific covenants to afford mutual guarantees of political independence and territorial integrity to great and small states alike."29 From the point of history, the creation of the League of Nations is a significant step in the development and evaluation of international rela- tions. The League of Nations was the very first international organisation where the States were attempting to create a frame to prevent war and preserve peace within the nations. It was suffering from severe weaknesses; on the other hand, the effort of countries is valuable. Japan involved China in 1931, just two years later, they left the League. Italy attacked Ethiopia; Germany committed a series of internal and external aggressions. The USA has never been a mem- ber of the League.30 In 1933 Germany withdraw from the League. The Soviet Union was expelled from the organisation in 1939 following its invasion of Finland. The Second World War was a huge trauma for the international community, and the League was succeeded in 1946 by the United Nations (U.N.).31 Peace treaties after the First World War Date Place State (with the Allied Powers) 7 May 1919. Versailles Germany 10 September 1919. Saint-Germain-en-Laye Austria 27 November 1919. Neuilly Bulgaria 4 June 1920. Trianon Hungary 10 Augustus 1920. Sevres* Turkey (*replaced by the Treaty of Lausanne in 1923) In the last seven decades, since the Second Great War was ended, the international community was able to prevent the outbreak of another World War. On the other hand, regional and internal con- flicts became new forms of aggression that the existing norms and practices are not ready to handle or solve. The nations have to face with the new forms of crimes, such as transnational organised crime, wildlife crime, terrorism and others. The U.N. is the most important international organisa- tion that can obligate the States. International law has to develop in line with the new challenges of the 21st century. For example, the environmental legislation regime has been mainly formed in the last couple of decades. There are more and more international organisations, the number of 28 SHAW 2008. p. 30. 29 President Woodrow Wilson's Fourteen Points http://avalon.law.yale.edu/20th_century/wilson14.asp 30 For membership information: http://worldatwar.net/timeline/other/league18-46.html 31 SHAW 2008. pp. 31-31. 10 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. intergovernmental organisations (IGOs) has multiplied, and the civil sphere (non-governmental organisations, NGOs) has a great representative role. NOTA BENE ✓ The importance of ancient times in the development of international law ✓ The first international treaties ✓ City-States and the Roman Empire ✓ Dictatus Papae ✓ Treaty of Tordesillas ✓ Hansa alliance ✓ Alberto Gentili ✓ Hugo Grotius ✓ Westphalia Treaty ✓ Congress of Vienna ✓ Congress System ✓ Monroe Doctrine ✓ The challenges of modern ages ✓ The League of Nations and the United Nations ✓ Peace treaties after the First World War RECOMMENDED READING The Oxford Handbook of the History of International Law Edited by Bardo Fassbender. Oxford Univer- sity Press, 2013. Sulyok Gábor: Treaties, Origin In Rüdiger Wolfrum (Edited) Max Planck Encyclopedia of Public In- ternational Law. Oxford: Oxford University Press, 2015. pp. 1-12. Sulyok Gábor: Breach of Treaties in the Ancient Near East JOURNAL OF THE HISTORY OF IN- TERNATIONAL LAW 19. pp. 1-27. (2017) 11 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Chapter 2. Subjects of international law In any entities (individuals and companies) of the legal system can possess legally enforceable rights and duties. The domestic law recognises them as a ‘legal person’ “possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties.” We have to raise the question which entities have legal personality. Without a legal personality, institutions and other groups cannot operate. In domestic law, legal personality is given by the legislation of the state. Each state has its legislation connecting to legal entities and providing certain rights and duties. Usually, legal personality is given to individuals and limited companies, to the forms of public partnership.32 There is no difference in international law regarding the term of legal personality. Legal capacity means that the legal entity may hold the right and duties provided by law. Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or assume duties, according to the mere dictates of his own will, as manifested in juristic acts, without any restraint or hindrance arising from his status or legal condition.33 On the other hand, the typical subjects of municipal law are not familiar subjects of international law, and individuals are exceptionally sub- jects of international law. Besides, States are specific subjects of international law and international organisations as well.34 States The criteria of statehood The criteria of statehood derived from the Montevideo Convention (1933)35 A State as a person of international should pass the following qualifications: (a) a permanent population; (objective) (b) a defined territory; (objective) (c) government; (objective) (d) capacity to enter into relations with the other States. (subjective) 36 The first requirement is the permanent population. The largeness of the population is irrelevant. We can name States with a large population, such as China or India or with small populations, such 32 SHAW 2008. p. 195. 33 The Law Dictionary http://thelawdictionary.org/capacity/ 34 NAGY KÁROLY 1999. p. 9. 35 Convention on Rights and Duties of States. Signed at Montevideo 26. December 1933, entered into force 26. December 1934. 36 Montevideo Convention Art.1. 12 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. as Luxemburg or Nauru. The nature of population did not settle by international law: the popula- tion may largely consist of nomads (such as in Somalia), it may be ethnically (relatively) homoge- neous (such as in Iceland) or very diverse (such as in the former Soviet Union), it may be inferior (such as in Sierra Leone, wherein 2000 nearly 70 per cent of the population lived below the poverty line) or it may be prosperous (as in the many Western States). The fulfilment of the criteria of the population does not depend on the nationality of the population. Nationality depends on the state- hood because States have a right to create their legislation on how the nationality is granted. The States can grant nationality because they are considered as States.37 The second criterion is a defined territory. The only important requirement is the existence of a core territory. Other than that, the international hasn’t posited any further requirement, such as minimum or maximum size. There are States with a small territory, such as Luxemburg or Nauru, especially islands; on the other hand, there are large countries, such as the USA or Russia, China or India.38 The criterion of government is interpreted at the Island of Palmas arbitration by Huber. In Hu- ber’s opinion, the government itself is not enough to fulfil the requirement of statehood. Still, it has to be effective as well “….have displayed sovereignty over the Island of Palmas (or Miangas) in an effective continuous and peaceful manner.”39 Effective governments allow the state to contact other entities. In- ternational law doesn’t specify at the field of government. As long as law and order can be guaran- teed, the requirements considered as fulfilled.40 The government must be sovereign and independ- ent so that within its territory it is not subject to the authority of another State. A failed state is unable to perform the two fundamental functions of the sovereign nation-state in the modern world system. Firstly, it cannot project authority over its territory and peoples; furthermore, it can- not protect its national boundaries. Somalia is an excellent example as a failed state, which de- scended into state collapse under rival warlords. Failed states usually struggle with humanitarian and emergency issues and crumbling infrastructure.41 Lastly, the capacity to enter into international relations is a subjective criterion of statehood. International relations between States can appear in the form of diplomatic relations or direct ne- gotiations. The capacity to enter into international relations includes the ability to adopt interna- tional conventions and treaties. 37 Ali Zounuzy Zadeh: International Law and the Criteria for Statehood: The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States. p. 22. 38 Jan Klabbers: International Law. Cambridge University Press, New York, 2013. pp. 70-71. 39 Island of Palmas Arbitration (USA v. Netherlands). Reports of International Arbitral Awards. 1928. VOLUME II pp. 829-871. p. 857. 40 KLABBERS 2013. p. 71. 41 https://www.britannica.com/topic/failed-state 13 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Recognition of States Recognition is a formal acknowledgement by another State that an entity possesses the qualifica- tions of statehood. International law is dominated by two competing theories of recognition: “de- claratory” view and “constitutive” view. The constitutive theory says that recognition of an entity as a State is not automatic and a State is only considered as a state when it is recognised as such. The already existing States have considerable discretion to recognise an entity as a state or not. The declaratory theory is the opposite of the constitutive theory. The declaratory theory holds that recognition is irrelevant because the states have no discretion in determining whether an entity constitutes a State. Regarding the declaratory theory, the status of statehood is based on fact, not on individual state discretion. The majority of contemporary scholars and commentators favour this theory.42 The Montevideo Convention also referred to the recognition of States: “The political existence of the state is independent of recognition by the other states. Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states ac- cording to international law.”43 The Montevideo Convention follows the declarative theory of recognition. The recognition is a political act, and in connection with the relations between States, it’s constitu- tive. On the other hand, the recognition of new entities as States is a merely political decision, based on mainly political motivations and interest.44 There is no such an obligation towards States to recognise the new entities as States, but there is an obligation not to recognise as lawful under some circumstances. Even if that entity satisfies all criteria of statehood, it is possible to withdraw recog- nition because “unilateral act”. Non-recognition is considered as an option if the new state as a partner in international relations appears to be so severe that the community of States that the other countries would like to leave this new entity out of the international community.45 42 William Worster: Sovereignty: two Competing Theories of State Recognition. http://www.exploringgeopolitics.org/publica- tion_worster_willliam_sovereignty_constitutive_declatory_statehood_recognition_legal_view_internatio- nal_law_court_justice_montevideo_genocide_convention/ 43 Art. 3. 44 KLABBERS 2013. p. 73. 45 Christian Hillgruber: The Admission of New States to the International Community. European Journal of International law 9 (1998), pp. 491-509. p. 494. 14 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. The recognition can be classified as the following: Effect of the recognition: De iure: final and full recognition “The recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is uncondi- tional and irrevocable.”46 De facto: temporary, restricted recognition Ad-hoc: recognition only for one occasion, e.g. exchange of war prisoners. The procedure of recognition: Express: the state expresses verbis State that the new entity is a state. Implicit: diplomatic relations, an international treaty. If a State starts diplomatic ties with another entity, the recognition of the other entity is implied. “The recognition of a State may be express or implicit. The latter results from any act which implies the intention of recognising the new state.”47 Way of Recognition: Individual: one state recognises another entity as a new State. Collective: two or more States recognise another entity as a new State. The consequences of recognition: extend to the level of intergovernmental relations; the recog- nition of citizenship, the possibility of normal diplomatic relations. The recognition of governments has to be separated from the recognition of States. These are two different issues. The government cannot be recognised without the recognition of the state as a legal person. However, the state can be recognised without the recognition of the government. The problem usually arises from the unconstitutional change of the government. Different theories have been developed in connection with the recognition of governments. The Tobar doctrine is a doctrine of non-recognition of governments that first enunciated by Car- los Tobar, the Minister of Foreign Relations of Ecuador, in March 1907. The governments that came into power unconstitutionally should not be recognised until the inhabitants accept the gov- ernment via, e.g. elections. The Estrada doctrine is a policy, named after the Mexican foreign minister who first propounded it in 1930. The doctrine constitutes that the States should abstain from taking any position on the validity of a new government in another State, on the basis that taking such a place would constitute an unjustified interference in the domestic affairs of that other state. 46 Montevideo Treaty Art. 6. 47 Montevideo Treaty Art. 7. 15 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Some certain acts or events cannot influence the statehood and the legal personality of the States. Firstly, occupation or other illegal use of force against the state (for example, in the case of Kuwait). An occupation is a form of international armed conflict that arises when a territory, or parts thereof, come under the authority of foreign hostile armed forces, even if it is not met with armed resistance. Changes of the national emblems (flag, etc.) of the State do not influence statehood, neither the changes of the name or constitution. Changes in the government do not affect statehood. A State becomes extinct because of the substantial changes in the elements of statehood. Changes can happen in the territory, population or government, in some cases, by a combination of all three. Extinction takes place only in the following instances: merger (A+B=C, e.g. Tanganyika and Zan- zibar became Tanzania), assimilation (e.g. German unification), disintegration (C= A+B, e.g. Czechoslovakia = the Czech Republic and the Slovak Republic). The regime change that happened in several countries at the beginning of the 1990s caused affected by questionable decisions of the international community. The Russian Federation got the seat of the Soviet Union in the Security Council; on the other hand, Yugoslavia went through a proper admission procedure and became a UN member state only in 2000.48 The legal personality of States: objective; full; unrestricted. International Organisations The term International organisation means an organisation established by a treaty or other instru- ment governed by international law and possessing an international legal personality. International organisations may include as members, in addition to States, other entities.49 The characteristics of international organisations: developed by States and based on the participation of States (intergovernmental organisa- tions (IGOs) - a non-governmental organisation (NGO) is a not-for-profit, voluntary citi- zens’ group, which is organised on a local, national or international level to address issues in support of the public good);50 established by a treaty or other instrument governed by international law; established by a founding document; 48 NAGY KÁROLY 1999. pp. 121-124. 49 Draft articles on the responsibility of international organizations, with commentaries Art. 1. 50 https://www.apa.org/international/united-nations/acronyms.pdf 16 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. has a unique institutional system and several organs (usually a secretariat, a decision-making committee or council and a plenary organ); the legal personality of an organisation needs to be distinct from that of its member States.51 International organisations are subjects of international law and, as such, are bound by any obliga- tions incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.52 The legal personality of international organisations: subjective: depends on the recognition of States, except the United Nations; “The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.”53 “On this point, the Court's opinion is that fifty States, representing the vast majority of the mem- bers of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality rec- ognised by them alone, together with the capacity to bring international claims.”54 derivative: given by the founding States; restricted: as it states in the founding treaty. Individuals The legal personality of individuals is exceptional is international law and limited to two main areas: active: human rights; passive: direct obligations of individuals and the international responsibility of individuals (crimes against mankind and war crimes).55 Peoples and Nations The self-determination of peoples and nations is a fundamental principle of international law. Minorities Unusually the States provides legal personality via internal acts and bilateral agreements to minor- ities to give rights.56 51 KOVÁCS 2011. p. 290. 52 Advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt 53 UN Charter Art. 104. 54 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C. J. Reports 1949, p. 174. p. 185. 55 KOVÁCS 2011. p. 315. 56 KOVÁCS 2011. p. 376. 17 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Mankind The common heritage of mankind, sometimes also called the common heritage of humankind or humanity, compared with age-old concepts such as res nullius and res communis omnium usus. The new concept assumed prominence after the speech of Arvid Pardo, the Maltese ambassador to the United Nations, delivered at the United Nations General Assembly in November 1967, calling for the deep seabed beyond national jurisdiction and the resources contained therein to be declared the common heritage of mankind. The concept was accepted at the law of the sea, but it has since been expanded to other issues, such as outer space and the Moon, Antarctica, human rights, human genomes, and plant genetic resources.57 The Sovereign Order of Malta The Sovereign Order of Malta is a religious order of the Catholic Church since 1113 and a subject of international law. The Sovereign Order of Malta has diplomatic relations with over 100 States and the European Union, and permanent observer status at the United Nations. It is neutral, im- partial and apolitical. Today, the Order of Malta is active in 120 countries caring for people in need through its medical, social and humanitarian works.58 The Holy See and Vatican City Vatican City is the smallest independent state in the world in terms of inhabitants and size. Vatican City State was founded following the signing of the Lateran Pacts between the Holy See and Italy on 11 February 1929. These were ratified on 7 June 1929. Its nature as a sovereign State distinct from the Holy See is universally recognised under international law. International Committee of the Red Cross The International Committee of the Red Cross is a sui generis legal person of international law. It was created by the Swiss internal law but gained more and more tasks by the Geneva Conventions and finally practices the duties of an intergovernmental organisation. It has quasi diplomatic privi- leges and immunities due to its neutral status and humanitarian work.59 Transnational companies Transnational companies are subjects of international law under the terms of the protection of the investment, provided by international public and private law. 57 Edwin Egede: Common Heritage of Mankind 30 July 2014. http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0109.xml 58 KOVÁCS 2011. p.376. 59 KOVÁCS 2011. p. 375 18 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. NOTA BENE ✓ The meaning of legal personality and the legal capacity ✓ The criteria of statehood ✓ Montevideo Convention ✓ The definition of the recognition of States ✓ Declarative and constitutive theories ✓ The classification of recognition of States ✓ Recognition of governments ✓ Tobar doctrine ✓ Estrada doctrine ✓ Extinction of States ✓ The legal personality of States and international organisations ✓ The definition of international organisations ✓ Individuals in international law ✓ Special legal persons of international law RECOMMENDED READING The UN in general: http://www.un.org/en/index.html The main organs of the UN: http://www.un.org/en/sections/about-un/main-organs/ Bob Reinalda: Routledge History of International Organizations. New York: Routledge, 2009. Vatican City: https://www.britannica.com/place/Vatican-City Minority Rights: International Standards and Guidance for Implementation. UN, 2010. Available at: http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf Szalai Anikó: Protection of the Roma Minority under International and European Law. Hague: Eleven In- ternational Publishing, 2015. Peter Muchlinski, Federico Ortino, and Christoph Schreuer: The Oxford Handbook of International Investment Law. Oxford University Press, 2008. 19 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Chapter 3 Sources of international law There are many differences between domestic law and international law. Sometimes it's challenging to find the relating law on a specific issue. Domestic law usually provides a hierarchy of norms and a basic catalogue of sources and legal acts. In contrast, international law is not so easily accessible, less coherent and certain. International law is derived from various sources. The commonly accepted list that provides the sources of international law can be found in Article 38(1) of the Statute of the International Law of Justice. The Statue of the International Law of Justice is an annexe to the Charter of the United Nations. It's also important to note that there is no formal hierarchy between the sources of international law.60 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recog- nised by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilised nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.61 a.) International conventions and international treaties62 The term of international convention in the Statue refers to all of the bilateral and multilateral treaties. The UN Treaty Series provides a wide range of information regarding international treaties. The United Nations Treaty Series (UNTS) is a publication produced by the Secretariat of the United Nations containing all treaties and international agreements registered or filed and recorded by the Secretariat since 1945.63 Besides, the series of 'Multilateral Treaties deposited with Secretary- General', published by the Secretariat of the United Nations from 1959 to 2009 are available online. 60 AUST 2010. pp. 5-6. 61 ICJ Statue Art. 38 (1) (2) 62 See: Chapter 5 of this Book 63 https://treaties.un.org/Pages/Content.aspx?path=DB/UNTS/pageIntro_en.xml 20 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. There is a publication of Multilateral Treaties Deposited with the Secretary-General, but it was discontinued in April 2010.64 b.) Customary international law Customary international law, or as it is stated in the Statute of ICJ international custom, must be distinguished from customary law. Customary law is a term of domestic law and deals with family matters, land and other internal issues. On the other hand, customary international law or interna- tional customs are essential sources of international law. A rule of custom "evolves from the prac- tice of States, and this can take a considerable or a short time." 65 Customary international law is a dynamic source of law in the light of the nature of the international legal system and because of the lack of centralised governmental organs.66 The evidence of substantial uniformity of practice by a remarkable number of States is inevitable for customs. State practice can be expressed in various ways: in governmental actions concerning other States, legislation, diplomatic notes, min- isterial or other official statements of the States. The evidence of custom can be appeared in the decision of international organisations, especially in the resolutions of the UN General Assembly.67 The customs can be regional as well, not just universal. Regional customary law especially appears in the practice of South-American countries because of their cohesion based on a common lan- guage, political and economic characteristics. The International Court of Justice also acknowledges the existence of regional customs if there is a comprehensive practice of States that are accepted as regulation for their relationship in question.68 Customary international law has two main constitutive elements. The first is the coincident, per- manent practice of the States (objective element), and the second is the opinio juris (subjective element). Besides, the interpretation of these elements, especially the understanding of the subjec- tive component is quite loose by the International Court of Justice:69 "...international custom as evidence of a general practice accepted as law the Court may not disregard the essential role played by general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice...It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's interna1 affairs. The Court does not consider that, for a rule 64 https://treaties.un.org/Pages/Content.aspx?path=Publication/MTDSG/Page1_en.xml 65 AUST 2010. p. 6. 66 SHAW 2008. p. 73. 67 AUST 2010. p. 6. 68 KOVÁCS 2011. p. 145. 69 KOVÁCS 2011. p. 143. 21 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the signifi- cance of that attitude is to confirm rather than to weaken the rule."70 The objective element of customary international law is the practice of the States. The objective element means the cohesive practice of the States in time and space. The time dimension of cus- toms has a traditional perception that implies if the practice existed more than 99 years ago, the criteria considered as fulfilled. On the other hand, because of the technical and scientific develop- ment in some law areas, only a couple of decades are enough to clear the practice of States (such as space law). And this was strengthened by the International Court of Justice as well: "although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law…, an indispensable requirement would be that within the period in question, short though it might be, State practice,…and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved."71 The subjective element of the customary international law is the opinio juris. Opinio juris is a belief that following the practice is not just a simple gesture but a real legal obligation. As it clearly stated in the judgments of the International Court of Justice: "not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation."72 But what is happening if a State doesn't want to accept the general practice and customs? When the norm of international law is in its rudimental stage, the State has the opportunity to consistently and openly object to it. After a time, a norm may apply to other States as customary international law that has consistently and regularly followed it with the belief that they are legally obligated to do so. But the norm will nevertheless not apply to the State that objected to it in its formative stages. This State called persistent objector.73 70 Case Concerning Military and Paramilitary activities. (Nicaragua v. USA) Judgment. I.C.J. Reports 1986. p. 98. 71 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Nether- lands) Judgment I.C.J. Reports 1969 p. 43. 72 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Nether- lands) Judgment I.C.J. Reports 1969 p p. 44. 73 Customary International Law. American Society of International Law and the International Judicial Academy December 2006, Volume 1, Issue 5 22 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Codification of international customary law For a very long time, written sources were not so important in international law, so the codification of international legal norms has started only at the beginning of the 19th century. The reasons for codification were the certainty of law and better availability. The first written sources, treaties were accepted at the most urgent fields of international relations: warfare regulations and the peaceful dispute settlement procedures.74 The Charter of the United Nations refers to codification in its 13 Article: "the General Assembly shall initiate studies and make recommendations for the purpose of: promoting international co-operation in the political field and encouraging the progressive development of international law and its codification."75 The International Law Commission was established by the General Assembly, in 1947, to undertake mandate as mentioned earlier of the Assembly. The following topics are on the working programme of the Commission: identification of customary international law, subsequent agreements and subsequent practise about the interpretation of treaties, immunity of State officials from foreign criminal juris- diction; provisional application of treaties; protection of the environment concerning armed con- flicts; protection of the atmosphere; crimes against humanity; jus cogens; the succession of States in respect of State responsibility.76 Besides, there is a debate relating to the progressive development of customs by the Commission. In some cases, the written treaty or convention goes beyond the clear international customary law and incorporate differently or not widely accepted norms as well. The debate about the relationship between codification and progressive development is not new; it goes back to the beginning of the ILC and earlier, it has been the subject of continued discussion both in the literature and in the Commission from its earliest days.77 The question regarding codification is: treaty or customs, which one is better? The problem cannot be decided quickly, because both international customs and international treaties have advantages and disadvantages. An adopted regulation can be changed by the lapse of time if all or at least many of the States are following the new way. On the other hand, adopting a written treaty usually lasts longer, and there are special norms for the modification that can harden the adoption of new rules. Legal certainty can be a problem in connection with customs. Written forms of law and interna- tional treaties are especially useful at this field. The obliged parties are also easily ascertainable about international treaties; meanwhile, in connection with international customary law, it can be 74 KOVÁCS 2011. pp. 150. 75 UN Charter Art. 13. (1) 76 http://legal.un.org/ilc/ 77 See: The Work of the International Law Commission. 8th Edition. Volume 1. UN Publication, New York pp. 46-47. 23 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. uncertain. "Treaties and customary international law are indeed importantly different as lawmaking processes, but they are not so different with regard to compliance and enforcement."78 International Treaties International Customs As a source of law Written Unwritten Content Certain Might be uncertain Specific (ratification problems Might be uncertain (persistent Obliged parties and the possibility of reserva- objector, regional customary tions might raise concerns) law) Under the rules of the treaty By the modification of States' Modification or general international law, practice, depends on the law usually takes long area c.) The general principles of law recognised by civilised nations The term "recognised by civilised nations" means all of the independent States and all of the na- tions.79 The general principles of international law have to be distinguished from the governing principles of international law.80 Unilateral acts of States The unilateral acts of States are usually not considered as a source of international law just if some requirements are fulfilled. Unilateral acts, while not sources of international law as understood in article 38(1) of the Statute of the ICJ, may constitute sources of obligation. The requirements were established by the International Court of Justice at the case of The Nuclear Tests.81 "When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.”"It is well recognised that declarations made by way of unilateral acts, concerning legal or factual 78 Timothy Meyer: How Different are Treaties and Modern Customary International Law? A Response to Verdier and Voeten https://www.asil.org/blogs/how-different-are-treaties-and-modern-customary-international-law-response-verdier- and-voeten 79 KOVÁCS 2011. p. 155. 80 See: Chapter 4. 81 Nuclear Tests Case (Australia v. France), Judgrnent, I.C.J. Reports 1974, p. 253. 24 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. situations, may have the effect of creating legal obligations…The binding character of the undertaking results from the terms of the act and is based on good faith; interested States are entitled to require that the obligation be re- spected."82 Requirements: the intention to be bound of the State making the declaration in question, the element of publicity or notoriety, principle of good faith, the possibility of recognition, and the statement is made by those who can undertake obligation in the name of the Sate. 83 Jus cogens The term of jus cogens means compelling law, also called the peremptory norms of general inter- national law. These are the most important norms of international law and any other sources of international law permit no derogation. Most of the scholars and States agree in the existing of compelling legal norms. On the other hand, there is a debate concerning the exact content, sources of jus cogens and the means of identification, and application, as well as to its precise effects and role within the international legal order also questionable. Besides, many international law instruments refer to jus cogens such as the 1969 Vienna Convention on the Law of Treaties (Art. 64): "if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates." Also, the declaration on guiding principles adopted by the International Law Commission in 2006 (Principle 8): "a unilateral declaration which is in conflict with a peremptory norm of general international law is void." And the Draft Articles on Responsibility of States for Internationally Wrongful Acts (Art. 26 of the draft accepted in 2001): "nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law."84 The concept of jus cogens based upon an acceptance of fundamental and superior values within the system and also refers to the Natural Law thinking. The jus cogens norms are not just rules of inter- national law but rather "rather rules of a particular and superior quality".85 During the discussion, if the Vienna Convention on the Law of Treaties many suggestions were made to add exampled for jus cogens: a treaty contemplating an unlawful use of force contrary to the principles of the Charter, a treaty reflecting the performance of any other act criminal under inter- national law, a treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide, acts which constitute crimes under international law; treaties violating human rights, the equality of States or the principle of self-determination were mentioned. Later, only the 82 Nuclear Tests Case, Summary of Judgement p. 3. 83 SHAW 2008. p. 122. 84 Anne Lagerwall: Jus Cogens http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo- 9780199796953-0124.xml 85 SHAW 2008. pp. 125-126. 25 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. general prohibition was adopted in the treaty because they do not want to limit the scope of the article just to the listed norms.86 Judicial decisions and the teachings of the most highly qualified publicists Judicial decision and the teachings of the most highly qualified publicists are listed as subsidiary means for the determination of rules of law. So they are no real sources of law but help to under- stand the meaning of the law. The judicial decisions mainly refer to the findings of the International Court of Justice, but in this form, the interpretation of the clause it's a bit challenging. The decisions of the ICJ have force only inter partes (between the parties): "the decision of the Court has no binding force except between the parties and in respect of that particular case." The principle of Roman law, praetor ius dicere potest, facere non potest, valid at the field of international law (the judge only interprets, but not creates the law). But, the ICJ has preceded a coherent practice so that the parties can predict the direction of the decision. The ICJ has phrased the preceding decisions of the Court, and the advisory opinions as well.87 Soft law The term "soft law" refers to instruments which do not have any legally binding force, or whose binding force is weaker than the binding force of other sources of international law, the "hard law" (actual binding legal instruments and laws). The final documents of conferences are typical forms of soft law. Soft law has great importance at international law, and even the application is quite favourable by States.88 It's hard to define soft law because various defections can be found in the literature. Regarding Shelton soft law norms are "normative provisions contained in non-binding texts".89 The term of soft law encompasses soft rules that are included in treaties, non-binding or voluntary resolutions, recommendations, codes of conduct, and standards. Ex aueque et bono The Statue of the International Court of Justice states that: the provisions of the Statue shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree to that. In this case equity not just forms but grounds the decision of the ICJ. It happens if the parties agree that positive law (treaties, customs and other sources of international law) exists. Still, it's not acceptable or not favourable for them, or the dispute cannot be decided upon the law.90 86 Yearbook of the ILC, 1966, Vol. II. p. 248. 87 KOVÁCS 2011. pp. 164-165. 88 KOVÁCS 2011. p. 162. 89 Shelton, Dinah, Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Oxford: Oxford University Press, 2000. 90 KOVÁCS 2011. p. 169. 26 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. International law and municipal law International law became more and more important in international relations and the number of international conventions as well as legal norms has been multiplied in the last centuries. Until the 19th-century law was only dependent on the will of sovereign states and was accepted by the na- tional authorities, that confused the scholars whether the application and follow of international law depend on the choice of the sovereign States or not. Besides, how the conflict between inter- national law and domestic law can be resolved?91 The leading scholars of monism are Hegel and Kelsen. The monism refers to international law and domestic law as the same, so there is no theoretical problem to apply international law.92 He- gel, the German thinker, analysed the issues, and according to that particular school of thought, international law was a branch of state law. The compulsory character of international law was derived from the convergent will of all States. Scholars of that period conceived international law as a 'common law' of nations. The first attempt of Kelsen to answer the questions as mentioned earlier was the book of "Das Problem der Souveränität und die Theorie des Völkerrchts" published in 1920, and he was very critic towards Hegel. Hegel refers to the Grundnorm (basic norm) as an Ur- sprungsnorm (original norm). The hypothetical Grundnorm of the entire system must be found in the federal (or international) system.93 The dualists considered international law and domestic law as different. The international law based upon agreements between States and customs.94 One of the scholars, Triepel, gained inter- national recognition in the field of international law through his work International Law and Na- tional Law from 1899 (Völkerrecht und Landesrecht). Developing the consequences of the concept of sovereignty, Triepel examined the relationship between international law and national law as a re- lationship between independent legal systems.95 Regarding dualism, international law has to find a way to domestic law. For international treaties, this means that the treaties have to be transformed into domestic law. Anzilotti's work is the "Lectures on International Law (Corso di diritto intema- zionale)". In the view of Anzilotti, the "States’ legislative competence is essentially a function of public international law, and some of the rules concerning conflict of laws do indeed pertain to this system of law.”96 91 SHAW 2008. p. 29. 92 KOVÁCS 2011. p. 60. 93 Francois Rigaux: Hans Kelsen on International Law. European Journal of International Law (1998). pp. 325-343. 94 SHAW 2008. pp. 29-30. 95 Jacobson, Arthur, and Bernhard Schlink, editors. Weimar: A Jurisprudence of Crisis. Berkeley: University of California Press, 2000. p. 172. 96 Giorgio Gaja: Positivism and Dualism in Dionisio Anzilotti. European Journal of International Law (1992) 123 27 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. NOTA BENE ✓ The sources of international law and Art. 38 of the ICJ ✓ The definition of international conventions ✓ The elements of customary international law ✓ Opinio juris ✓ The importance of codification ✓ International Law Commission ✓ Advantages and disadvantages of international customs and treaties ✓ The general principles of law ✓ Unilateral acts as sources of international law ✓ The meaning of jus cogens ✓ Judicial decisions and the teachings of the most qualified publicists ✓ The definition of soft law ✓ The meaning of ex aueque et bono decisions ✓ Monism ✓ Dualism RECOMMENDED READING Andrew T. Guzman and Timothy L. Meyer: Internaitonal Soft Law, 2 J. Legal Analysis 171 (2010), Available at: http://scholarship.law.berkeley.edu/facpubs/695 Professor Christopher Greenwood: Sources of International Law: An Introduction. Available at: http://legal.un.org/avl/pdf/ls/greenwood_outline.pdf Kamrul Hossain: The Concept of Jus Cogens and the Obligation Under The U.N. Charter, 3 Santa Clara J. Int'l L. 72 (2005). Available at: http://digitalcommons.law.scu.edu/scujil/vol3/iss1/3 28 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Chapter 4 Statehood The criteria of statehood The criteria of statehood derived from the Montevideo Convention (1933)97 A State as a person of international should pass the following qualifications: (e) a permanent population; (objective) (f) a defined territory; (objective) (g) government; (objective) (h) capacity to enter into relations with the other States. (subjective) 98 The first requirement is the permanent population. The largeness of the population is irrelevant. We can name States with a large population, such as China or India or with small populations, such as Luxemburg or Nauru. The nature of population does not settle by international law: the popu- lation may largely consist of nomads (such as in Somalia), it may be ethnically (relatively) homoge- neous (such as in Iceland) or very diverse (such as in the former Soviet Union), it may be poor (such as in Sierra Leone, wherein 2000 nearly 70 per cent of the population lived below the poverty line) or it may be prosperous (as in the many Western States). The fulfilment of the criteria of the population does not depend on the nationality of the population. Nationality depends on the state- hood - the States have a right to adopt their legislation on how the nationality is granted. The States can grant nationality because they are considered as States.99 The second criterion is a defined territory. The only important requirement is the existence of a core territory. Other than that, the international hasn’t posited any further requirement, such as minimum or maximum size. There are States with a small territory, such as Luxemburg or Nauru, especially islands; on the other hand, there are large countries, such as the USA or Russia, China or India.100 97 Convention on Rights and Duties of States. Signed at Montevideo 26. December 1933, entered into force 26. December 1934. 98 Montevideo Convention Art.1. 99 Ali Zounuzy Zadeh: International Law and the Criteria for Statehood: The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States. p. 22. 100 Jan Klabbers: International Law. Cambridge University Press, New York, 2013. pp. 70-71. 29 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. The criterion of government is interpreted at the Island of Palmas arbitration by Huber. In Hu- ber’s opinion, the government itself is not enough to fulfil the requirement of statehood. Still, it has to be effective as well “….have displayed sovereignty over the Island of Palmas (or Miangas) in an effective continuous and peaceful manner.”101 Effective governments allow the state to contact other entities. International law doesn’t specify at the field of government. As long as law and order can be guar- anteed, the requirements considered as fulfilled.102 The government must be sovereign and inde- pendent so that within its territory it is not subject to the authority of another State. A failed state means a state that is unable to perform the two fundamental functions of the sovereign nation- state in the modern world system. Firstly, it cannot project authority over its territory and peoples; furthermore, it cannot protect its national boundaries. Somalia is a great example as a failed state, which descended into state collapse under rival warlords. Failed states usually struggle with human- itarian and emergency issues and crumbling infrastructure.103 Lastly, the capacity to enter into international relations is a subjective criterion of statehood. International relations between States can appear in the form of diplomatic relations or direct ne- gotiations. The capacity to enter into international relations includes the capacity to adopt interna- tional conventions and treaties. Recognition of States Recognition is a formal acknowledgement by another State that an entity possesses the qualifica- tions of statehood. International law is dominated by two competing theories of state recognition, the “declaratory” view and the “constitutive” view. The constitutive theory says that recognition of an entity as a State is not automatic and a State is only considered as a state when it is recognised as such. The already existing States have considerable discretion to recognise an entity as a state or not. The declaratory theory is the opposite of the constitutive theory. The declaratory theory holds that recognition is irrelevant because the states have no discretion in determining whether an entity constitutes a State. Regarding the declaratory theory, the status of statehood is based on fact, not on individual state discretion. The majority of contemporary scholars and commentators favour this theory.104 101 Island of Palmas Arbitration (USA v. Netherlands). Reports of International Arbitral Awards. 1928. VOLUME II pp. 829-871. p. 857. 102 KLABBERS 2013. p. 71. 103 https://www.britannica.com/topic/failed-state 104 William Worster: Sovereignty: two Competing Theories of State Recognition. http://www.exploringgeopolitics.org/publica- tion_worster_willliam_sovereignty_constitutive_declatory_statehood_recognition_legal_view_internatio- nal_law_court_justice_montevideo_genocide_convention/ 30 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. The Montevideo Convention also referred to the recognition of States: “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its con- servation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its in- terests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states ac- cording to international law.”105 The Montevideo Convention follows the declarative theory of recognition. The recognition is a political act, and in connection with the relations between States, it’s constitu- tive. On the other hand, the recognition of new entities as States is a merely political decision, based on mainly political motivations and interest.106 There is no such an obligation towards States to recognise the new entities as States, but there is an obligation not to recognise as lawful under some circumstances. Even if that entity satisfies all criteria of statehood, it is possible to withdraw recog- nition because “unilateral act”. Non-recognition is considered as an option if the new state as a partner in international relations appears to be so severe that the community of States that the other countries would like to leave this new entity out of the international community.107 The recognition can be classified as the following Effect of the recognition De iure: final and full recognition “The recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is uncondi- tional and irrevocable.”108 De facto: temporary, restricted recognition Ad-hoc: recognition only for one occasion, e.g. exchange of war prisoners. 105 Art. 3. 106 KLABBERS 2013. p. 73. 107 Christian Hillgruber: The Admission of New States to the International Community. European Journal of International law 9 (1998), pp. 491-509. p. 494. 108 Montevideo Treaty Art. 6. 31 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Procedure of recognition Express: the state expresses verbis state that the new entity is a state. Implicit: diplomatic relations, an international treaty. If a State starts diplomatic re- lations with another entity, the recognition of the other entity is implied. “The recognition of a State may be express or tacit. The latter results from any act which implies the intention of recognising the new state.”109 Way of Recognition Individual: one state recognises another entity as a new State. Collective: two or more States recognise another entity as a new State. The consequences of recognition: extend to the level of intergovernmental relations; the recog- nition of citizenship, the possibility of normal diplomatic relations. The recognition of governments has to be separated from the recognition of States. These are two different issues. The government cannot be recognised without the recognition of the state as a legal person, but the state can be recognised without the recognition of the government. The problem usually arises from the unconstitutional change of the government. Different theories have been developed in connection with the recognition of governments. The Tobar doctrine is a doctrine of non-recognition of governments that first enunciated by Car- los Tobar, the Minister of Foreign Relations of Ecuador, in March 1907. The governments that came into power unconstitutionally should not be recognised until the inhabitants accept the gov- ernment via, e.g. elections. The Estrada doctrine is a policy, named after the Mexican foreign minister who first propounded it in 1930. A State abstains from taking any position on the validity of a new government in another State, on the basis that taking such a position would constitute an unjustified interference in the domestic affairs of that other state. Some certain acts or events cannot influence the statehood and the legal personality of the States. Firstly, occupation (an occupation is a form of international armed conflict that arises when a ter- ritory, or parts thereof, come under the authority of foreign hostile armed forces, even if it is not met with armed resistance) or other illegal use of force against the state (for example in the case of Kuwait). Changes of the national emblems (flag, etc.) of the State do not influence statehood, 109 Montevideo Treaty Art. 7. 32 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. neither the changes of the name or constitution. Changes in the government do not affect state- hood. A State becomes extinct because of the substantial changes in territory, population or government, or even, in some cases, by a combination of all three. Extinction takes place only in the following cases: merger (A+B=C, e.g. Tanganyika and Zanzibar became Tanzania), assimilation (e.g. German unification), disintegration (C= A+B, e.g. Czechoslovakia = the Czech Republic and the Slovak Republic). The regime change that happened in several countries at the beginning of the 1990s caused affected by questionable decisions of the international community. The Russian Federation got the seat of the Soviet Union in the Security Council. On the other hand, Yugoslavia went through a proper admission procedure and became a UN member state only in 2000.110 The legal personality of States objective; full; unrestricted. NOTA BENE ✓ In which document can we find the elements of statehood? ✓ List the main criteria of statehood! ✓ Summarise the main aspects of the permanent population as a criterion of statehood! ✓ Summarise the main aspects of the defined territory as a criterion of statehood! ✓ Summarise the main aspects of the effective government as a criterion of statehood! ✓ Summarise the main aspects of the capacity to participate in international relations as a criterion of statehood! ✓ Define the recognition of statehood! ✓ Summarise the classification of the recognition of statehood and define each aspect! ✓ What is the difference between the recognition of statehood and the recognition governments? ✓ What are the principal doctrines of the recognition of governments? ✓ Summarise the formation and extinction of states. ✓ Define the legal personality of states – main characteristics. 110 NAGY KÁROLY 1999. pp. 121-124. 33 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. RECOMMENDED READING Ebenroth – Kenner: The enduring political nature of questions of state succession and secession and the quest for objective standards. University of Pennsylvania, Journal of International Econo- mic Law. vol. 17. no. 3. 1996. https://www.law.upenn.edu/journals/jil/articles/vo- lume17/issue3/EbenrothKemner17U.Pa.J.Int'lEcon.L.753(1996).pdf States in International Law: https://www.britannica.com/topic/international-law/States-in-inter- national-law 34 Updated version of „Basics of International Law” Course Book, University of Szeged, 2017 written by Orsolya Johanna Sziebig Dr. All rights reserved. Chapter 5 Law of Treaties International treaties are one of the main sources of international law, also mentioned in the Statue of the International Court Justice. The legal sources regarding the law of treaties consist of the customary international law (the practice of the States) and the international conventions espe- cially sentenced to this topic. Two prominent international conventions were accepted concerning the law of tre

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