Public International Law PDF

Public International Law (PIL)​ Definition: PIL governs the interactions between states and entities with international legal personality (e.g., states, international organizations, individuals). Covers activities like international agreements, diplomacy, trade, human rights,...

Public International Law (PIL)​ Definition: PIL governs the interactions between states and entities with international legal personality (e.g., states, international organizations, individuals). Covers activities like international agreements, diplomacy, trade, human rights, and armed conflicts. History: 1648 Peace of Westphalia: Established modern state sovereignty after the Thirty Years' War. Hugo Grotius: "Father of International Law," emphasized treaties' binding force, freedom of the seas, and conflict laws. Evolution of International Structures: 1. Post-WWI: Formation of the League of Nations (failed due to WWII). 2. Post-WWII: Creation of the United Nations with a focus on international peace and security. Key UN Organs (Article 7, UN Charter): 1. General Assembly (GA) 2. Security Council (SC) 3. Economic and Social Council (ECOSOC) 4. International Court of Justice (ICJ) 5. Secretariat 6. Trusteeship Council (inactive) Actors in International Law: 1. States: Full legal personality; sovereign equality (UN Charter, Article 2(1)). 2. International Organizations: Created by treaties, e.g., UN, NATO; have specific rights/duties. 3. Individuals: Subject to international obligations and rights (e.g., human rights treaties). 4. Indigenous Peoples: Rights to self-determination debated; recognized under Article 1(2) of the UN Charter. 5. NGOs: Domestic legal personality but limited international recognition. 6. Corporations: Growing role in international economic law; limited legal personality. Constitutional Law​​ Constitutionalism: Ancient Concept: Limiting rulers' power (e.g., customs, principles). Modern Concept: Rule of law governs state power; arbitrary use of power is constrained by constitutional frameworks. Constitutions: 1. Narrow Definition: A document defining a country’s legal structure and principles. 2. Broad Definition: Includes legal and non-legal norms (e.g., customs, conventions). Features: Codified: Written, rigid, and entrenched (e.g., USA). Uncodified: Flexible, based on conventions (e.g., UK). Amendment Mechanisms: ○ Rigid: Require supermajorities or referenda. ○ Flexible: Simple parliamentary approval. ○ Hybrid: Combination of both. Sovereignty: 1. Types: ○ Internal: Authority within a state. ○ External: Non-interference from other states. ○ Popular, National, Parliamentary, and Royal sovereignty. 2. State and Government: ○ State: A socio-political entity with sovereignty. ○ Government: Institutions exercising state sovereignty. Separation of Powers (SOP): Origin: Montesquieu’s Trias Politica. Concept: Division of government into three branches: ○ Legislature: Lawmaking. ○ Executive: Law enforcement and administration. ○ Judiciary: Interpretation and dispute resolution. Purpose: Prevent concentration of power and ensure accountability. Judicial Review: 1. Forms:  ○ Ex Ante: Review bills before becoming laws. ○ Ex Post: Review existing laws. ○ Concrete: Linked to specific cases. ○ Abstract: Independent of specific cases. 2. Outcomes: ○ Disapplication: Law stands but is set aside in specific cases. ○ Annulment: Law ceases to exist. Governance Systems: 1. Presidential System: ○ Head of Government = President; elected by citizens. ○ Advantages: Stability, direct mandate. ○ Disadvantages: Risk of authoritarianism, political gridlock. 2. Parliamentary System: ○ Head of Government = Prime Minister; chosen by parliament. ○ Advantages: Flexibility, inclusiveness. ○ Disadvantages: Instability, party dominance. 3. Semi-Presidential System: Dual executive (President and PM share responsibilities). Public International Law (PIL) - Lecture 2 Sources of International Law 1. Primary Sources (Article 38 ICJ Statute): ○ Treaties: Formal agreements between states (e.g., VCLT defines treaties and principles like pacta sunt servanda in Article 26). ○ International Custom: General practices accepted as law (opinio juris + state practice). Key Cases: North Sea Continental Shelf (uniform practice), Nicaragua Case (not universal but accepted). ○ General Principles of Law: Common to major legal systems (e.g., good faith, ne bis in idem). 2. Secondary Sources: ○ Judicial Decisions: Non-binding but influential. ○ Teachings of Publicists: Scholarly contributions. 3. Hierarchy and Exceptions: ○ Treaties and custom often dominate; general principles fill gaps. ○ Jus cogens: Peremptory norms (e.g., prohibition of genocide). Cannot be overridden. ○ Persistent Objector Rule: States can opt out of customary law during its formation. Constitutional Law - Week 3 Separation of Powers 1. Traditional Division: ○ Executive: Enforces laws. ○ Legislative: Makes laws. ○ Judiciary: Interprets laws. 2. Horizontal (State Level): ○ Federal: Shared sovereignty, bicameral parliaments, regional autonomy (e.g., USA). ○ Unitary: Centralized sovereignty, unicameral parliaments, limited regional autonomy (e.g., France). 3. Vertical (Multi-level Governance): ○ Devolution and decentralization in federal systems vs. central control in unitary states. Constitutional Law - Week 4 Monism vs. Dualism 1. Monism: International law directly applies domestically upon ratification. ○ Treaties become part of the national legal order (e.g., Netherlands, Germany). ○ Requires clear, precise, and self-executing provisions. 2. Dualism: Treaties require transposition into domestic law. ○ International law does not automatically apply (e.g., UK, Canada). 3. Comparative Examples: ○ Netherlands: Monist with dualist tendencies for non-self-executing treaties. ○ Canada: Dualist; treaties need legislative implementation. ○ South Africa: Dualist except for human rights treaties (monist approach). Constitutional Law - Week 5 Constitutional Crises 1. Causes: ○ States of Emergency: Exceptional powers can erode boundaries. ○ Constitutional Silence: Gaps in provisions. ○ Constitutional Ambiguity: Confusion in text interpretation. 2. Managing Crises: ○ Judicial Review: Proportionality principle to limit overreach.  ○ International Pressure: Sanctions, mediation, or military intervention. ○ Popular Sovereignty: Protests, uprisings, or elections. 3. Constitutional Interpretation: ○ Textual (literal meaning). ○ Purposive (intent of framers). ○ Precedent-based (past decisions). ○ Political custom and tradition. Tips for Application 1. Treaty Law: ○ Use Article 2 VCLT for treaty definitions and binding criteria. ○ Discuss examples like the Rome Statute for ICC jurisdiction. 2. State Structure: ○ Compare features of federal and unitary states (e.g., shared vs. centralized sovereignty). ○ Explain bicameral vs. unicameral parliamentary designs. 3. Crises Examples: ○ Explore real-world constitutional crises and emergency measures (e.g., post-9/11 powers in the US). Week 8: Jurisdiction and Immunities Case Study: The Lotus Case (1927 PCIJ) Facts: A collision on the high seas between a French (Lotus) and a Turkish (Boz Kourt) vessel led Turkey to prosecute the French watchman. Key Issue: Could Turkey exercise jurisdiction over acts occurring outside its territory? Ruling: ○ International law permits states to exercise jurisdiction unless explicitly prohibited. ○ Established the permissive rule: States have jurisdiction if no prohibitive rule exists. ○ Highlighted the principle of territorial sovereignty. Impact: Strengthened the idea that international law gives states significant freedom within their territory but limited powers extraterritorially unless explicitly allowed. Types of Jurisdiction: 1. Territorial Jurisdiction: ○ Objective: Jurisdiction over crimes completed on the state’s territory. ○ Subjective: Jurisdiction over crimes initiated within the state but completed elsewhere.  2. Extra-Territorial Jurisdiction: ○ Active Nationality: Over a state's citizens, regardless of their location. ○ Passive Nationality: Over crimes committed against a state’s citizens abroad. ○ Universal Jurisdiction: Crimes like piracy or genocide that harm the international community. ○ Protective Principle: Jurisdiction over acts threatening state security (e.g., terrorism). Immunities: Personal Immunity (ratione personae): ○ Protects high-ranking officials (e.g., heads of state) from foreign prosecution while in office. ○ Covers private and official acts but ends when they leave office. ○ Case Example: Arrest Warrant Case (2002): DRC’s Foreign Minister was protected from prosecution while in office. Functional Immunity (ratione materiae): ○ Applies to official acts attributable to the state, even after the official leaves office. ○ Does not protect against prosecution for international crimes (e.g., war crimes, genocide). Week 9: State Responsibility Elements of State Responsibility (Art. 2 ARSIWA): 1. Breach of International Obligation: ○ A primary rule (e.g., prohibition of torture) must be violated. ○ The violation is determined solely by international law. 2. Attribution to the State: ○ Conduct by state organs (e.g., military, government) or private actors under state control. ○ Case Example: Tehran Hostages Case (1980): Iran was held responsible for failing to protect the US embassy. Circumstances Precluding Wrongfulness: Legal justifications for wrongful acts include: ○ Consent of the injured state. ○ Self-defense (Art. 51 UN Charter). ○ Necessity, force majeure, or distress. Exception: Acts violating jus cogens norms (e.g., genocide) cannot be justified. Legal Consequences:  1. Cessation of Wrongful Conduct: E.g., Wall Case (2004): Israel was asked to dismantle the wall in Palestinian territory. 2. Reparations (Art. 34-37 ARSIWA): ○ Restitution: Restoring the situation to its original state. ○ Compensation: Monetary damages. ○ Satisfaction: Acknowledgment of wrongdoing. Week 9: Prohibition of Use of Force Key Provisions: Art. 2(4) UN Charter: Prohibits use of force except: ○ Self-defense (Art. 51): Armed attack triggers this inherent right. E.g., Ukraine’s response to Crimea annexation (2014). ○ UNSC Authorization (Chapter VII): The UNSC can authorize force to maintain peace, as seen in the Gulf War (1991). Humanitarian Intervention: Often cited but lacks clear legal grounding. Example: NATO’s 1999 intervention in Kosovo lacked UNSC authorization and remains controversial. Week 10: International Humanitarian Law (IHL) Conflict Types: 1. International Armed Conflict (IAC): ○ Between states. ○ Governed by Geneva Conventions and Additional Protocol I. 2. Non-International Armed Conflict (NIAC): ○ Between a state and organized armed groups. ○ Requires intensity and organization thresholds. ○ Governed by Common Article 3 of the Geneva Conventions and Additional Protocol II. Principles of IHL: Distinction: Combatants vs. civilians. Proportionality: Balance military advantage vs. collateral damage. Humanity: Minimize unnecessary suffering. Week 10: International Criminal Law (ICL) ICC Jurisdiction (Art. 5 Rome Statute): Covers genocide, crimes against humanity, war crimes, and aggression. Trigger mechanisms: ○ State referral. ○ UNSC referral. ○ Prosecutor’s initiative (proprio motu). Case Example: Bemba Case (ICC): Addressed command responsibility. Superior knew of crimes and failed to act, resulting in conviction. Week 10: International Environmental Law (IEL) Principles: 1. No Harm Principle: States must prevent transboundary harm (e.g., Trail Smelter Case). 2. Precautionary Principle: Take preventive actions despite scientific uncertainty. 3. Polluter Pays Principle: Polluters bear cleanup costs. Sustainable Development Goals (SDGs): Focus on balancing economic growth with environmental protection for future generations. Would you like additional details on specific cases or principles? You said: sure ChatGPT said: ChatGPT Let’s go deeper into some of the notable cases and principles from the material: Key Cases and Principles 1. The Lotus Case (1927 PCIJ) Background: ○ A French and a Turkish ship collided on the high seas, leading to fatalities. ○ Turkey prosecuted the French officer when the ship docked, asserting extraterritorial jurisdiction. ○ France contested, arguing Turkey lacked jurisdiction under international law. Ruling: ○ PCIJ established two rules: 1. Permissive Rule: Jurisdiction is allowed unless explicitly prohibited by international law. 2. Prohibitive Rule: States cannot exercise jurisdiction in another state’s territory without consent or a permissive rule. ○ Turkey’s prosecution was valid because international law did not expressly prohibit it. Significance: ○ Set a foundational precedent for jurisdictional disputes. ○ Emphasized that international law is based on what is expressly regulated, granting states significant freedom otherwise. 2. Tehran Hostages Case (1980 ICJ) Background: ○ After Iranian revolutionaries seized the US Embassy in Tehran, the US claimed Iran violated the Vienna Convention on Diplomatic Relations by not protecting diplomats. Ruling: ○ The ICJ held that Iran was responsible because: The seizure was initially by private actors but was later endorsed by Iranian authorities (attribution under Art. 2 ARSIWA). Failure to protect foreign embassies breached Iran’s obligations under international law. Significance: ○ Reinforced the principle of state responsibility for actions of both state organs and private actors under its control. ○ Highlighted obligations under the Vienna Convention. 3. Wall Case (2004 ICJ Advisory Opinion) Background:  ○ Israel constructed a security barrier in Palestinian territories, citing security concerns. ○ Palestine and others argued it violated international law, including the prohibition of force and human rights norms. Ruling: ○ ICJ ruled the barrier violated international law as it: Breached Palestinian rights to self-determination. Contravened international humanitarian law, particularly the Fourth Geneva Convention. ○ Israel was obligated to dismantle parts of the barrier and provide reparations. Significance: ○ Demonstrated the ICJ’s role in addressing international disputes involving violations of jus cogens norms and erga omnes obligations. ○ Highlighted the limits of self-defense when it infringes on others’ rights. 4. Bemba Case (ICC) Background: ○ Jean-Pierre Bemba, a Congolese politician, was tried for crimes against humanity and war crimes committed by his troops in the Central African Republic. ○ The prosecution was based on command responsibility (Art. 28 Rome Statute). Ruling: ○ Bemba was found guilty as a superior commander who: Knew his forces were committing crimes. Failed to take reasonable measures to prevent or punish these acts. Significance: ○ Established a precedent for holding military leaders accountable for failing to control their subordinates. ○ Strengthened the enforcement of international humanitarian law through individual criminal responsibility. 5. Trail Smelter Case (1941 Arbitration) Background: ○ A Canadian smelter caused cross-border pollution affecting US farms. ○ The US sought compensation under the principle of state responsibility. Ruling: ○ The tribunal held Canada liable for the transboundary harm and ordered compensation. ○ Established the no-harm principle: States must ensure activities within their jurisdiction do not harm other states.  Significance: ○ A foundational case for international environmental law. ○ Influenced the development of principles like prevention and polluter pays. 6. The Prohibition of the Use of Force (Art. 2(4) UN Charter) Key Principle: ○ States must not use or threaten force against another state’s territorial integrity or political independence. Exceptions: ○ Self-Defense (Art. 51): Triggered by an armed attack. Must be necessary and proportionate. Example: Ukraine’s right to defend against Russia's annexation of Crimea (2014). ○ UNSC Authorization (Chapter VII): UNSC can authorize force to maintain international peace and security. Example: UNSC-authorized coalition during the Gulf War (1991). Controversy: Humanitarian Intervention ○ E.g., NATO’s Kosovo intervention (1999) lacked UNSC authorization. ○ Often justified on moral grounds but not legally recognized as an exception. 7. Precautionary Principle (Environmental Law) Meaning: ○ When there is uncertainty about environmental harm, states must take preventive measures. Case Example: Pulp Mills Case (ICJ): ○ Uruguay constructed pulp mills on a river shared with Argentina. ○ Argentina alleged harm due to lack of environmental assessment. ○ ICJ emphasized the obligation to conduct prior environmental impact assessments in transboundary contexts. Significance: ○ Reinforces the need for precaution in environmental protection. ○ Establishes a balance between development and conservation.