Exam 2 Public International Law PDF

Lecture 7 - The Reception of International Law in Domestic Legal Orders 1. Key Differences Between International and Domestic Legal Systems Horizontal structure: ○ No central authority; states are sovereign, independent, and equal. ○ Decentralized legal functions; stat...

Lecture 7 - The Reception of International Law in Domestic Legal Orders 1. Key Differences Between International and Domestic Legal Systems Horizontal structure: ○ No central authority; states are sovereign, independent, and equal. ○ Decentralized legal functions; states retain wide-ranging freedom of action. No sovereign legislative body: ○ States create rules through treaties and customary international law. No global executive body: ○ No international police force or comprehensive law enforcement system. ○ The UN Security Council provides limited enforcement under specific conditions. No courts with general compulsory jurisdiction: ○ Even the International Court of Justice (ICJ) requires state consent for jurisdiction. Observation: Despite structural weaknesses, international law is generally observed. (Louis Henkin: "Almost all nations observe almost all principles of international law almost all of the time.") 2. Theories of International Law Application Monism Views domestic and international law as part of a unified legal system. Key Features: ○ Supremacy of international law (Hans Kelsen’s theory). ○ No need for transformation; international law is directly applicable. ○ In conflicts between domestic and international law, international law prevails. ○ Emphasizes the unitary nature of laws governing states and individuals. Dualism Treats domestic and international law as distinct systems. Key Features: ○ Different subjects: states in international law vs. individuals in domestic law. ○ Different sources: custom/treaties in international law vs. statutes in domestic law. ○ International law requires transformation or incorporation into domestic law to be applicable. ○ Reflects state sovereignty and independence in deciding how international norms are implemented. 3. Legal Frameworks for International Law in Domestic Systems Article 26 VCLT (Vienna Convention on the Law of Treaties) Pacta sunt servanda: Every treaty is binding upon the parties and must be performed in good faith. Article 27 VCLT Primacy of international law: Domestic law cannot be used as a justification for failing to perform a treaty. Domestic Implementation Approaches: The process varies by country and depends on the state's legal tradition: ○ Monist systems: International law automatically becomes part of domestic law. ○ Dualist systems: International law must be formally incorporated via legislation. 4. Self-Executing and Non-Self-Executing Norms Self-Executing Norms: ○ Provisions of international treaties that are sufficiently precise and can be directly applied by domestic courts. ○ Example: Human rights provisions guaranteeing specific individual rights. Non-Self-Executing Norms: ○ Require transformation into domestic law for implementation. ○ Example: Broad obligations requiring legislative or administrative action, such as environmental treaties. Key Point: Each state's national law determines whether a norm is self-executing. 5. Compliance and Enforcement Mechanisms Ensuring Compliance with International Law: Decentralized Mechanisms: ○ State responsibility rules. ○ Countermeasures (e.g., trade restrictions, sanctions). Institutional Mechanisms: ○ Dispute resolution through ICJ or arbitration. ○ Collective enforcement under the UN Security Council. Self-Help Measures: ○ Countermeasures, including proportional use of force in self-defense. Dispute Settlement Mechanisms: Diplomatic: ○ Negotiation, mediation, good offices, inquiry.  Legal: ○ Arbitration and judicial settlement (ICJ, regional courts). 6. Examining Compliance Through Key Principles Key Principles of International Law: State Sovereignty: States retain independence in determining compliance. Good Faith (Art. 26 VCLT): Obligations must be performed sincerely. Accountability: Mechanisms exist to address breaches, such as reparations or sanctions. Limitations on Compliance: Lack of central enforcement authority in international law. Dependence on state consent for binding dispute resolution mechanisms. Uneven application of international norms in monist vs. dualist systems. 7. Exam Tips and Key Focus Areas 1. Understand the distinction between monism and dualism and their practical implications. 2. Be able to explain how international law interacts with domestic law under Articles 26 and 27 VCLT. 3. Know the difference between self-executing and non-self-executing norms. 4. Discuss the challenges and methods of enforcing international law, focusing on state responsibility and dispute resolution. 5. Use case examples where possible to illustrate key points (e.g., ICJ judgments or treaty compliance). Lecture 8 - The Responsibility of States for International Wrongful Acts 1. General Framework of State Responsibility Definition: State responsibility arises when a State commits an internationally wrongful act. Key Elements (Article 2, ILC Articles on State Responsibility): ○ Attribution: The conduct must be attributable to the State. ○ Breach: The conduct must constitute a breach of an international obligation. Features of State Responsibility: ○ It is a secondary rule, triggered when a primary rule (international obligation) is breached. ○ Responsibility is independent of domestic law (Article 3, ILC Articles). ○ Obligations are heightened for breaches of jus cogens norms (e.g., prohibitions on genocide or torture). 2. Attribution of Conduct to a State Article 4: Conduct of State Organs Includes all entities exercising legislative, executive, judicial, or other state functions. Acts remain attributable even if the organ acts beyond its authority (ultra vires acts). Article 5: Conduct of Entities Empowered by the State Covers non-state entities authorized by the State to exercise elements of governmental authority. Article 6: Conduct of Organs at the Disposal of Another State When one State temporarily places its organs at the disposal of another, their conduct is attributable to the latter. Article 8: Conduct Directed or Controlled by the State Actions of private individuals or groups may be attributed to the State if they act under its direction or control. Article 10: Insurrectional Movements Conduct of an insurrectional movement is attributable to the State if the movement later becomes the government. 3. Breach of International Obligations What Constitutes a Breach? ○ A violation of any international obligation binding on the State. ○ Both actions and omissions can constitute breaches. Special Obligations: Jus Cogens Norms ○ Breaches of peremptory norms (e.g., prohibitions on genocide, slavery) have specific consequences. ○ Obligations erga omnes: Breaches affect the international community as a whole. 4. Circumstances Precluding Wrongfulness Articles 20-25, ILC Articles: These circumstances justify an act but do not eliminate the obligation to compensate for damage. 1. Consent (Article 20): ○ If the injured State consents to the conduct.  2. Self-Defense (Article 21): ○ Acts consistent with Article 51 of the UN Charter. 3. Countermeasures (Article 22): ○ Lawful actions taken in response to a prior breach by another State. 4. Force Majeure (Article 23): ○ An unforeseeable event beyond the control of the State making performance impossible. 5. Distress (Article 24): ○ Acting to save lives in situations of extreme peril. 6. Necessity (Article 25): ○ The act is necessary to safeguard an essential interest against a grave and imminent peril. Exceptions: Circumstances precluding wrongfulness do not apply to breaches of jus cogens norms. 5. Consequences of Internationally Wrongful Acts 1. Obligations of the Responsible State: ○ Cessation: The wrongful act must stop immediately. ○ Non-repetition: The State must guarantee that the act will not recur. ○ Reparation (Articles 31-34): Includes restitution, compensation, or satisfaction: Restitution: Restore the situation to what it was before the wrongful act. Compensation: Cover financially assessable damage. Satisfaction: Acknowledge the breach and provide assurances of non-repetition. 2. Invocation by Other States: ○ Injured States can invoke responsibility for breaches affecting them directly. ○ Erga Omnes Breaches: Any State may invoke responsibility for breaches of obligations owed to the international community as a whole. 6. Case Examples and Applications 1. Ultra Vires Acts: ○ State is responsible for acts of its organs even if they exceed their authority (e.g., military overreach). 2. Insurrectional Movements: ○ Example: Attribution of responsibility to a new government for actions committed during a rebellion. 3. Jus Cogens Breaches: ○ Responsibility extends to all States, e.g., breaches of genocide conventions. 7. Exam Tips and Focus Areas  1. Understand the Key Elements of State Responsibility: ○ Attribution and breach are central concepts. 2. Memorize Circumstances Precluding Wrongfulness: ○ Be able to distinguish between situations like necessity and self-defense. 3. Focus on Jus Cogens Norms: ○ Discuss how breaches of these norms differ in terms of responsibility and consequences. 4. Use Case Examples to Illustrate Points: ○ Apply principles to hypothetical scenarios for better clarity. 5. Explain Reparation Mechanisms: ○ Highlight differences between restitution, compensation, and satisfaction. Summary for Quick Revision State Responsibility: Triggered by attribution + breach. Attribution: Includes state organs, authorized entities, and insurrectional movements. Breach: Violation of international obligations (heightened for jus cogens). Circumstances Precluding Wrongfulness: Justify acts but require compensation. Reparation: Cessation, non-repetition, restitution, compensation, and satisfaction. Lecture 9 - The International Court of Justice (ICJ) 1. Overview of the ICJ Role: The ICJ is the principal judicial organ of the United Nations, tasked with resolving disputes between States and providing advisory opinions on legal questions referred by authorized UN bodies. Established: 1945, replacing the Permanent Court of International Justice (PCIJ). Located: The Hague, Netherlands. Legal Basis: Governed by its Statute, which is an integral part of the UN Charter. Primary Functions: 1. Contentious Cases: Settles legal disputes between States. ○ Binding judgments. 2. Advisory Opinions: Provides non-binding opinions on legal questions referred by UN organs or specialized agencies. 2. Organization and Structure of the ICJ Judges: Composition: 15 judges elected by the UN General Assembly and Security Council.  Term: 9 years, with the possibility of re-election. Representation: Reflects the principal legal systems and civilizations of the world. Ad hoc Judges: States involved in a case can appoint judges if they lack representation on the bench. Other Key Features: Languages: English and French. Presidency: Judges elect a President and Vice-President for three-year terms. Registry: Provides administrative and legal support to the Court. 3. Jurisdiction of the ICJ Ratione Personae (Who Can Appear): Only States can be parties to contentious cases (Article 34 of the ICJ Statute). International organizations or private entities may not directly participate but can be referenced in advisory proceedings. Ratione Materiae (What Can Be Heard): Cases involving treaties, customary international law, or general principles of law. Contentious cases require: ○ Existence of a dispute: A disagreement over a point of law or fact (Mavrommatis Palestine Concessions Case, 1924). Ratione Consensus (Consent to Jurisdiction): 1. Special Agreement: States agree to submit a specific dispute. 2. Compromissory Clauses: Clauses in treaties referring disputes to the ICJ. 3. Optional Clause (Article 36(2)): States may declare acceptance of ICJ jurisdiction in advance for specific types of disputes. 4. Forum Prorogatum: Implied consent when a State responds to proceedings without objecting to jurisdiction. Monetary Gold Principle: The ICJ cannot decide a case if it would require ruling on the legal rights or obligations of a third State not party to the case (Monetary Gold Case, 1954). 4. Procedure in Contentious Cases 1. Application Stage: ○ The applicant State files a written application outlining jurisdiction, legal grounds, and remedies sought. 2. Written Proceedings:  ○ Memorials, counter-memorials, and replies exchanged between parties. 3. Oral Proceedings: ○ States present arguments before the Court. 4. Deliberation and Judgment: ○ Judges deliberate in private before issuing a majority decision. ○ Judgments are binding on the parties (Article 59 of the ICJ Statute). 5. Advisory Opinions Purpose: Non-binding opinions on legal questions posed by UN organs or specialized agencies. Key Features: ○ Open to a broader range of entities than contentious cases. ○ Often influential in shaping international law (e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004). 6. Enforcement of ICJ Decisions Binding Nature: Contentious case judgments are binding only on the parties to the case. ICJ decisions do not have precedential value but are highly persuasive in future cases. Challenges: The ICJ lacks enforcement mechanisms. States must comply voluntarily, or enforcement relies on the UN Security Council under Article 94 of the UN Charter. 7. Strengths and Limitations of the ICJ Strengths: Provides a peaceful mechanism for resolving disputes. Develops and clarifies international law. Reflects global representation in its composition. Limitations: Jurisdiction depends on State consent, limiting its reach. Non-binding nature of advisory opinions. Enforcement relies on voluntary compliance or the UN Security Council. 8. Key Cases to Reference 1. Monetary Gold Case (1954): Established limits on jurisdiction regarding third States. 2. Nicaragua v. United States (1986): Clarified principles of use of force and State responsibility. 3. Legal Consequences of the Wall Advisory Opinion (2004): Influential in the interpretation of self-determination and occupation law. 4. Bosnian Genocide Case (2007): Addressed genocide obligations under the Genocide Convention. 9. Exam Tips and Focus Areas 1. Understand the Court’s Jurisdictional Basis: ○ Focus on optional clauses, compromissory clauses, and the Monetary Gold Principle. 2. Differentiate Contentious Cases and Advisory Opinions: ○ Highlight their procedures, purposes, and outcomes. 3. Emphasize Enforcement Challenges: ○ Explain reliance on voluntary compliance and Security Council involvement. 4. Use Key Cases to Support Arguments: ○ Relate cases to principles of jurisdiction, State consent, and enforcement. Summary for Quick Revision ICJ’s Role: Principal judicial organ of the UN with dual functions (contentious cases and advisory opinions). Jurisdiction: Dependent on State consent; applies to disputes involving treaties, custom, and general principles. Procedure: Application, written submissions, oral hearings, and binding judgments. Enforcement: Relies on State compliance and UN mechanisms. Limitations: Jurisdictional restrictions and lack of direct enforcement power. Lecture 10 - Introduction to Administrative Law 1. What is Administrative Law? Definition: Administrative law governs the powers, procedures, and acts of public administration. It regulates how government agencies operate and interact with individuals. Historical Evolution:  ○ 19th Century: Focused on maintaining law and order and protecting territories. ○ Post-Industrial Revolution: Expanded to providing community services and wealth distribution. ○ Modern Era: Encompasses the delivery of public goods, services, and regulation of complex societal issues. Purpose: ○ Implements and enforces constitutional principles. ○ Balances public authority with individual rights. 2. Core Components of Administrative Law 1. Administrative Authorities and Their Powers: ○ Powers must be derived from legislation. ○ Exercise of authority must align with public interest. 2. Procedural Rules for Administrative Action: ○ Ensure transparency, fairness, and accountability in administrative decisions. 3. Substantive Requirements: ○ Actions must comply with the law, respect rights, and meet the principles of justice. 4. Judicial Protection Against Administrative Actions: ○ Provides mechanisms to challenge administrative decisions, including judicial review. 3. Public vs. Private Law Public Law: Regulates relationships between individuals and the State. Covers areas like constitutional law, administrative law, and criminal law. Private Law: Governs relationships between private individuals and entities. Includes contracts, property, family law, and torts. Key Difference: Public law addresses State authority, while private law focuses on private interactions. 4. Tools of Public Administration 1. Judicial Acts: ○ Decisions that enforce or implement laws (e.g., granting permits, imposing fines). 2. Factual Acts: ○ Administrative activities that do not involve formal decisions (e.g., inspections, public announcements). 5. Public Administration Principles 1. Merit-Based Recruitment: ○ Hiring and promotion based on qualifications and performance, not political affiliations. 2. Life Tenure of Civil Servants: ○ Ensures stability and independence, with dismissal only for grave misconduct. 3. Accountability: ○ Public administration must act transparently and be held accountable for decisions. 4. Public Interest: ○ Administrative actions must prioritize societal welfare over private gains. 6. Administrative Law Beyond Borders Comparative Administrative Law: Administrative law is influenced by globalization, requiring cross-border solutions to issues like environmental protection, health, and safety. Global Administrative Law (GAL): Definition: A framework addressing accountability, transparency, participation, and legality in global administrative bodies. Examples of Areas Needing GAL: ○ Environmental regulation. ○ Labor standards. ○ Trade and intellectual property enforcement. European Administrative Law: Multilevel Governance: ○ Decision-making occurs across national and EU levels. ○ Joint administration for areas like food safety and environmental protection. Direct Administration: EU institutions directly enforce laws. Indirect Administration: EU laws are implemented by member states. 7. Key Challenges in Administrative Law 1. Balancing Authority and Freedom: ○ Ensuring that administrative actions respect individual rights while maintaining order. 2. Accountability Deficit in Global Administration: ○ Lack of oversight mechanisms for international bodies. 3. Adapting to Multilevel Governance:  ○ Coordinating between different levels of administration within states and international organizations. 8. Exam Tips and Focus Areas 1. Understand the Role of Administrative Law: ○ Be able to explain how it regulates government functions and balances public interest with individual rights. 2. Focus on Key Principles: ○ Public interest, merit-based recruitment, and accountability are central themes. 3. Memorize Comparative and Global Administrative Law: ○ Highlight the importance of globalization in shaping modern administrative law. 4. Use Examples: ○ Refer to practical scenarios like EU multilevel governance or cross-border regulations to illustrate concepts. 5. Contrast Public and Private Law: ○ Be clear on their differences and interconnections. Summary for Quick Revision Definition: Administrative law governs public administration and ensures legal compliance. Core Principles: Accountability, transparency, merit-based recruitment, and public interest. Public vs. Private Law: Public law governs state-citizen interactions; private law governs individual relationships. Global Influence: Comparative and global administrative law address cross-border issues and international governance. Challenges: Balancing authority with rights, addressing accountability deficits, and managing multilevel governance. Lecture 11 - The Protection of Individuals in International Law 1. Introduction to Individual Protection in International Law Shift in Focus: ○ Early international law prioritized states as primary subjects. ○ Modern international law increasingly recognizes individuals as direct rights-holders and duty-bearers. Key Developments: ○ Establishment of human rights frameworks. ○ Prosecution of individuals for international crimes (e.g., genocide, war crimes). ○ International mechanisms to protect individuals from state abuses. 2. Sources of Protection for Individuals 1. International Human Rights Law: Core principles: Dignity, equality, and universality. Main instruments: ○ Universal Declaration of Human Rights (UDHR, 1948): Non-binding but foundational. ○ International Covenants (1966): International Covenant on Civil and Political Rights (ICCPR). International Covenant on Economic, Social and Cultural Rights (ICESCR). ○ Regional frameworks: European Convention on Human Rights (ECHR). African Charter on Human and Peoples' Rights. American Convention on Human Rights. 2. International Humanitarian Law (IHL): Protects individuals during armed conflict. Key instruments: ○ Geneva Conventions (1949) and Additional Protocols. ○ Hague Conventions. 3. International Criminal Law: Focus: Individual accountability for international crimes. Key institutions: ○ International Criminal Court (ICC). ○ Ad hoc tribunals (e.g., ICTY, ICTR). ○ Hybrid courts (e.g., Special Court for Sierra Leone). 4. Refugee Law: Protects individuals fleeing persecution. Key instrument: 1951 Refugee Convention and its 1967 Protocol. 5. Customary International Law: Certain rights (e.g., prohibition of torture, slavery) are recognized as customary norms and binding on all states. 3. Key Concepts and Principles 1. Human Rights as Universal and Inalienable: ○ Rights are inherent and cannot be transferred or revoked arbitrarily.  2. Non-Discrimination: ○ Individuals are entitled to equal protection without distinction (e.g., race, gender, religion). 3. Progressive Realization: ○ Economic, social, and cultural rights require gradual implementation depending on state resources. 4. Prohibition of Jus Cogens Violations: ○ Certain rights (e.g., prohibition of genocide, torture) are non-derogable and universally binding. 5. Erga Omnes Obligations: ○ States have obligations towards the international community to uphold certain rights (e.g., self-determination). 4. Enforcement Mechanisms 1. Treaty-Based Mechanisms: UN Human Rights Committees: ○ ICCPR: Human Rights Committee (HRC). ○ ICESCR: Committee on Economic, Social, and Cultural Rights. Regional Courts and Commissions: ○ European Court of Human Rights. ○ Inter-American Court of Human Rights. ○ African Court on Human and Peoples' Rights. 2. UN Charter-Based Mechanisms: Universal Periodic Review (UPR): ○ Reviews human rights records of all UN member states. Special Procedures: ○ Independent experts monitor specific issues (e.g., torture, arbitrary detention). 3. International Criminal Tribunals: Prosecute individuals for violations of international law. ○ ICC: Focuses on genocide, war crimes, crimes against humanity, and aggression. ○ ICTY, ICTR: Ad hoc tribunals for Yugoslavia and Rwanda. 4. Diplomatic and Political Pressure: States and international organizations apply sanctions or public condemnation. 5. Challenges in Protecting Individuals 1. State Sovereignty vs. Individual Rights:  ○ States often prioritize sovereignty over external scrutiny of human rights practices. 2. Enforcement Gaps: ○ Many mechanisms lack binding power or effective enforcement. ○ Reliance on voluntary state compliance. 3. Resource Constraints: ○ Developing countries struggle with progressive realization due to limited resources. 4. Non-State Actors: ○ Increasing role of non-state actors (e.g., armed groups, corporations) complicates enforcement. 5. Selective Accountability: ○ Powerful states or individuals often evade accountability. 6. Key Case Examples 1. Filartiga v. Pena-Irala (1980): ○ Landmark case under the Alien Tort Statute in the US, recognizing universal jurisdiction for torture. 2. Prosecutor v. Jean-Paul Akayesu (ICTR, 1998): ○ First conviction for genocide under international law. 3. Al-Skeini and Others v. United Kingdom (ECHR, 2011): ○ Established extraterritorial applicability of human rights obligations. 4. Myanmar (Rohingya Case, ICC and ICJ, ongoing): ○ Allegations of genocide and crimes against humanity. 7. Exam Tips and Focus Areas 1. Understand Key Frameworks: ○ Focus on major human rights treaties, humanitarian law, and criminal law mechanisms. 2. Distinguish Between Concepts: ○ Compare treaty-based enforcement (binding) and charter-based mechanisms (non-binding). 3. Memorize Non-Derogable Rights: ○ Identify rights that cannot be suspended even during emergencies (e.g., right to life, prohibition of torture). 4. Use Case Examples: ○ Cite landmark cases to illustrate principles of universal jurisdiction, state accountability, and individual protection. 5. Discuss Enforcement Challenges: ○ Address sovereignty, resource constraints, and the role of non-state actors. Summary for Quick Revision  Core Instruments: UDHR, ICCPR, ICESCR, Geneva Conventions, Refugee Convention. Key Principles: Universality, non-discrimination, jus cogens, and erga omnes obligations. Mechanisms: Treaty-based (HRC, regional courts), charter-based (UPR, ICC), and ad hoc tribunals. Challenges: Sovereignty, enforcement gaps, resource constraints, and selective accountability.