International Law Lecture Notes PDF

INTERNATIONAL LAW [WEEK 1:] INTRO TO CON. LAW AND CONSTITUTIONALISM Constitutionalism: Definitions: - Ancient -- Idea (or collection of ideas) designed to regulate the powers and actions of the ruler - Modern -- THE SOCIAL CONTRACT -- Idea of a limited government, in which the limi...

INTERNATIONAL LAW [WEEK 1:] INTRO TO CON. LAW AND CONSTITUTIONALISM Constitutionalism: Definitions: - Ancient -- Idea (or collection of ideas) designed to regulate the powers and actions of the ruler - Modern -- THE SOCIAL CONTRACT -- Idea of a limited government, in which the limitations are based on a collective agreement, e.g. the public power is guaranteed by the constitution and the rule of law Constitutional law: - Any law derived from a constitution (law captured in constitutions) - Any law trying to accomplish the ideals of constitutionalism What are constitutions: - Narrow understanding: - Constitution refers to a specific document (either one or a collection0 - Broad understanding: - Constitution refers to a whole de-jure and de-facto collection of rules that govern the state Features of constitutions: - Codified - Uncodified - Amendment -- mechanism for constitutional change aimed at improvements - Rigid (Constitutional entrenchment allows for stable institutions) -- constitution is unamendable, needs referendum or a high majority (2/3) - Flexible -- needs simple majority (1/2) - Hybrid -- both elements (some parts are unamendable, some are amendable) - Supreme law of the land Sovereignty: - The ultimate power to exercise authority over oneself - Constituent power -- authority to create a constitution, power to create a constitution - Dimensions of sovereignty: - Internal: Power to exercise authority within a state - External: Power to resist attempts of external sources to exercise their authority over the state - Sources of sovereignty: - Royal sov.: The monarch - Parliamentary sov.: The parliament - National sov.: Representatives of the state - Popular sov.: The people - referendum - Provincial sov.: Federal sub-divisions - Plural sov.: - State: Socio-political entity exercising its own sovereignty trough institutions - Country? - Nation? - Government: Collective of actors and institutions managing the state and its affairs [WEEK 2:] SEPARATION OF POWERS (Trias politica) Philosophy of Montesquieu -- necessity to distribute the powers of the state between branches in order to achieve and guarantee the rights of citizens and rule of law -- constitutionalism The pure SoP is based on: - Institution (Legislature, Executive, Judiciary) - Function (The role of the institution -- legislative, executive, judicial) - Membership (People in the institutions -- No individual shall be part of multiple separated powers)) Goal of SoP: Separate powers (trough constitution) Therefore, limit the powers of the government Therefore, guarantee the rights of citizens Therefore, achieve constitutionalism Legislature: - Architecture for making legislation (the system to make laws): - Direct - Representative -- parliament - Legislative powers (Formation of Kelsen's pyramid): - The Constitution Constitutionally designed legislation - The Parliament (Legislative Instrument -- Statutes) Delegated legislation - The Executive (Executive Instrument -- Decrees, Administrations) - \*Explanation: The constitution cannot be composed of all the laws, so it gives the power to make laws to a legislative body, that can also transfer the power to make certain laws to a subordinate executive body - Role of parliament: - Checks on Executive - Right of information - Right of Investigation - Power of the Purse - Power of Legislation Executive: - Collective responsible for running the state -- the government - Led by ministerial cabinet - Role of Executive: - Setting legislative priorities - Implementing policy and legislation - Conducting foreign and domestic policy - Structuring the public budget - Internal: - Commander in chief - Figurehead for National Unity - Appoints officers - Executes Laws - Leads departments - External: - Official diplomatic representation - Treaty making - Military interventions - Foreign affairs Judiciary: - The collective of courts responsible for interpretation of legislation, judicial review and treaty law compliance - Protects human rights - Judicial review: - Proceeding made by a judge or a court on the lawfulness of a decision or action made by a public body - The decision is made based on hierarchy of laws (Kelsen's pyramid) and the principles of solving legal conflict (Lex superior, posterior, specialis) - Types of JR: - Ex ante review -- checks the lawfulness of a bill before it becomes an active legislation (a proposal for a law) - Ex post review -- checks the lawfulness of legislation in force - Concrete review -- checks the lawfulness of active legislation triggered by a court event - Abstract review -- checks the lawfulness of active legislation [not] triggered by a court event - Systems of JR: - Centralized: JR only possible at higher or specialized courts - Decentralized: JR possible at every court - Outcomes of JR: - Disapplication -- the law still stands but is not treated as applicable in the particular context - Annulment -- the law ceases to exist Governance Systems: - Presidential - Parliamentary - Parliamentary-presidential - Parliamentary-monarchy (constitutional monarchy) - Monarchical (absolute monarchy) [WEEK 3:] STATE STRUCTURE Federal state: - Constitutional recognition of internal divided territories - Regional autonomy over horizontal SoP - Shared sovereignty - Bicameral parliaments - Sub-divisions participate in constitutional amendment Unitary state: - No constitutional recognition of internal divided territories - Centralized horizontal SoP - Centralized sovereignty - Unicameral parliaments - Regions do not participate in constitutional amendment Federal sub-types: - Symmetrical - powers are equal - Asymmetrical - difference in powers Representation in parliament: - Unicameral in Unitary state - Bicameral in Federal state - Bicameral in Unitary state Reasons for - Federalization: - In coming together states (USA) -- used as a preservation of autonomy - Holding together -- to preserve unity - Preservation of socio-cultural norms - Centralization: - Promotion of national unity - Reduce risk of secession [WEEK 4:] INTERNATIONAL LAW IN CONSTITUTIONAL LAW International law -- set of rules between states/sovereigns Treaty -- international agreement between states with the purpose of creating rights and obligations for states Constitution provides process for integration of international law: - Treaty conclusion: - Treaty-making: - Negotiation and signature of a treaty by the head of state or executive - Ratification: - Declaring a treaty binding -- usually by a law making body - Treaties place in hierarchy Dualism -- Int. law is separate from the national law and needs to be transposed in order to be legally binding and invoked Monism -- Int. law is automatically part of national law Monism/Dualism is a spectrum and there is no pure form of one or the other Consequence of Monism/Dualism: Which language is binding? Which wording is bonding? When can the clauses of the treaty be invoked? Would domestic law prevail over the treaty? - In Dualism the applicable law is the transposed law, not the original and takes affect after this procedure - In Monism the applicable law is the original law as written in the treaty, not its translation nor transcription nor transposition, it takes affect immediately after ratification Examples: Netherlands: monist, but has dualist tendencies when regarding unclear wording in treaties Germany: Monist, as the original form of the treaty is the one valid Canada: Dualist to protect the federal system (Implementation done by the legislative, but ratification by executive) USA: Mixed SA: Dualist, but when regarding human rights follows a pure monist approach [WEEK 5:] CONSTITUTIONAL CRISIS Moments in which decision makers are unable or unwilling to manage societal conflicts within the confinements of constitutionally provided boundaries Sources of constitutional crisis: - States of emergency: - Grant of special powers to state agents (mostly executive) during times of emergency -- which are often prescribed in the constitution - Proportionality principle - Non-feasibility of constitutional provisions - Constitution says that in theory something should happen, but is not feasible in reality - Constitutional silence - Lack of reference - Constitutional ambiguity - Lack of clarity of a constitutional provision - Meaning: - Express: just what is written in the exact text, syntax - Implied: the implication of meaning, a reference, found maybe elsewhere in the text - Lack of express meaning leads to implication of meaning, leading to bending of meaning Constitutional argumentation (based on): - Text and structure - Purpose - Judicial precedence - Political custom and tradition - Honored authority Management of crisis: [WEEK 6:] PIL Introduction - PIL is a system of rules and principles that regulate the relations between states and entities -- [provided that they have international legal personality] - Key historical events: - Treaty of Westphalia (1648) -- birth of modern principle of what a state is (sovereign territorial unit) - Hugo Grotius (Mare Libre) -- father of international law - Treaty of Westphalia Creation of States Use of Treaties Birth of International Organizations - WW1 League of Nations WW2 UN: - Organs of UN (Article 7 UNCH): - General Assembly - Security Council - International Court of Justice - Economic and Social Council - Trusteeship Council - Secretariat - Major issues: - Cold War (SC paralyzed) - Decolonization (UN Special committee on Decolonization) - Globalization: - Growing number of international organizations (EU, NATO, AU, CoE) and judicial bodies (ICC, ECtHR, ACtHR, ITLOS, ICTY, STL) - INTERNATIONAL LEGAL PERSONALITY: - Entities capable of international rights and obligations: - CAT -- States are OBLIGED not to torture - ICCPR -- Individuals have RIGHT not to be tortured - Take actions on international level: - Bringing a case in front of international tribunal - Ability to enter into treaties - Actors in IL: - States (Art. 2(1) UNCH -- states enjoy the same degree of international legal personality) - International Organizations -- association of states established by a treaty - Individuals -- Rights and obligations under human right treaties - Indigenous people -- Right to self-determinations (Art. 1(2) UNCH) - NGO's - Corporations [WEEK 7:] Sources of International Law 1. Article 38 ICJ Statute (First 3 are primary): 1. International conventions (Treaty, charter, protocol) 2. International custom 1. General principles of law 1. Judicial decision, precedence, academic teachings Conventions: - Most common source - Bilateral or multilateral - Regional or Global - Regulating inter-state actions - Establish international organizations - Refer a dispute to the ICJ VCLT (Vienna convention on the law of the treaties): - Treaty on treaties, containing basic principles of treaty law and a definition of a treaty - Basic principles: - Treaties are based on state consent - Pacta sunt servanda -- treaties are considered binding and performed in bona fide - Treaties are only binding on party states Conclusion of treaties: - Negotiation Adoption into text Authentication of the text Consent to be bound Entry into force - Ratification is required in order for the treaty to be binding (signature is not sufficient) - Exeptions (12 VCLT) International Customary Law: - International customs require: - State practice (Objective element): - Consistent and uniform (not universal) - Generally accepted (regional customs exists) - Of a certain duration (Instant customs exists) - Opinio juris (Subjective element) -- sense of obligation - Acts on domestic level (enacting laws) - Acts on international level (conducting traties) - Membership in international organizations - Consent to be bound in ICL: - Customary law is binding to all - Consent is either implied or tacit - Exeption to binding force of ICL: - Notion of persistent objector: - State consistently objected to a practice - Still in creation of becoming a customary law - Continues to opt out of practicing the specific custom event after it gained a customary law status General principles: - Derived from domestic principles - Principle of ne bis in idem (no repetition of prosecution) - Pacta [WEEK 8:] Sovereignty Emergence of Sovereignty - Treaty of Westphalia (1648): Marked the emergence of sovereign nation-states. - Ended the Holy Roman Empire\'s dominance. - Established the principle of state sovereignty: Each state has supreme authority over its territory and domestic affairs, free from external interference. Scope of Sovereignty - Basic Constitutional Concept: Governs relations in the international community. - State Sovereignty: Legal personality, statehood, and supreme authority over a territory and its people. - Equality of States: All states are equal under international law. - Limitations: - Sovereignty is not absolute; it can be limited by international law (e.g., human rights law, state immunities). Jurisdiction Definition of Jurisdiction - Central Feature of Sovereignty: The power of a state to regulate conduct within its legal framework. - Forms of Jurisdiction: 1. Prescriptive (Legislative): Capacity to make laws. 2. Enforcement: Capacity to ensure compliance with laws. 3. Adjudicative: Capacity of courts to decide legal matters. Limits to Jurisdictional Power - Enforcement Jurisdiction: Can only be exercised within a state\'s territory. - Prescriptive Jurisdiction: Can be both territorial and extraterritorial, but enforcement in another state\'s territory requires consent. The Lotus Case (1927) - Facts: Collision between French and Turkish ships on the high seas. Turkey prosecuted the French officer. - PCIJ Ruling: - Permissive Rule: States cannot exercise power in another state\'s territory without a permissive rule (e.g., custom or treaty). - Prohibitive Rule: States have discretion to extend laws extraterritorially unless prohibited by international law. Approaches to Jurisdiction - Lotus Presumption: Extraterritorial jurisdiction is permitted unless restricted by international law. - Principles of Jurisdiction: Extraterritorial jurisdiction is prohibited unless permitted by a specific principle. Bases of Jurisdiction Territorial Principle - A state has jurisdiction over all matters within its territory, regardless of the nationality of the individuals involved. - Doubtful Areas: - Objective Territoriality: Jurisdiction over offenses completed within the territory. - Subjective Territoriality: Jurisdiction over offenses commencing within the territory but completed abroad. Extraterritorial Principles 1. Active Nationality: Jurisdiction over nationals abroad. - Nottebohm Case (1955): Genuine connection required for nationality. - Barcelona Traction Case (1970): Nationality of corporations determined by place of incorporation. 2. Passive Nationality: Jurisdiction over offenses where the victim is a national. - Lotus Case: Turkey\'s claim based on passive nationality. 3. Protective Principle: Jurisdiction over acts threatening national security or vital interests. - Examples: Falsification of currency, terrorism. 4. Universal Jurisdiction: Jurisdiction over crimes affecting the international community (e.g., piracy, genocide). - Princeton Principles (2001): Universal jurisdiction based on the nature of the crime. - Eichmann Case (1961): Israeli court exercised universal jurisdiction over Nazi crimes. Effects Doctrine - Jurisdiction over acts abroad that have effects within the state (e.g., economic impact). - Originated from U.S. antitrust laws; controversial. Immunities State Immunity - Par in parem non habet imperium: Equals cannot judge each other. - Historical Development: From absolute immunity to restrictive immunity (only for sovereign acts, not commercial acts). - Sovereign vs. Commercial Acts: - Jure Imperii: Sovereign acts (immune). - Jure Gestionis: Commercial acts (not immune). Immunities of State Agents/Officials 1. Functional Immunities (Ratione Materiae): - Immunity for official acts, even after leaving office. - Protects state sovereignty and internal organization. 2. Personal Immunities (Ratione Personae): - Immunity for high-ranking officials (e.g., heads of state, foreign ministers) for both official and private acts. - Ends after leaving office. - Arrest Warrant Case (2002): Belgium issued an arrest warrant for DRC\'s foreign minister; ICJ ruled it violated international law. Immunities and International Crimes - Functional Immunity: Does not apply to international crimes (e.g., war crimes, genocide). - Nuremberg Tribunal (1945): Official position does not exempt from responsibility. - Personal Immunity: Prevails for senior officials during their term, even for international crimes. - Rome Statute (ICC): Official capacity does not exempt from prosecution. Peaceful Settlement of International Disputes Definition of a Dispute - Legal Dispute: To be settled by applying legal norms (Hans Kelsen). UN Charter and Dispute Settlement - Article 2(3): Obligation to settle disputes peacefully. - Article 33: Methods include negotiation, mediation, arbitration, and judicial settlement. Methods of Dispute Settlement 1. Diplomatic Methods: - Negotiation, mediation, inquiry. 2. Legal Methods: - Arbitration, ICJ, other international tribunals (e.g., WTO, UNCLOS). International Court of Justice (ICJ) - Functions: - Contentious Jurisdiction: Settles disputes between states. - Advisory Jurisdiction: Provides legal opinions to UN organs. - Jurisdiction: - Voluntary; states must accept ICJ jurisdiction (e.g., special agreement, optional clause). - Forum Prorogatum: Implied acceptance of jurisdiction through conduct. Key Cases - Lotus Case (1927): Extraterritorial jurisdiction. - Nottebohm Case (1955): Genuine connection for nationality. - Arrest Warrant Case (2002): Immunities of state officials. - Eichmann Case (1961): Universal jurisdiction over international crimes. [WEEK 9:] State Responsibility International Law Commission (ILC) - Role: Independent body of experts that promotes the progressive development of international law. - Prepares draft articles and recommendations. - Example: Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001). - Sources of International Law: - Treaties, customary international law, general principles of law, judicial decisions, and teachings of publicists (Art. 38 ICJ Statute). State Responsibility - Introduction - Primary Rules: Define obligations states must follow (e.g., prohibition of torture, genocide). - Secondary Rules: Determine consequences of violating primary rules (e.g., state responsibility). - Example: - Primary Rule: Prohibition of torture. - Secondary Rule: State responsibility for breaching this prohibition. Elements of State Responsibility (Art. 2 ARSIWA) 1. Breach of an International Obligation: - Conduct must violate a primary rule. - Example: Tehran Hostages Case (1980) - Iran breached the Vienna Convention by failing to protect the U.S. Embassy. 2. Attribution of Conduct to the State: - Conduct must be attributable to the state (e.g., acts by state organs, private actors under state control). - Article 8 ARSIWA: Private actors\' conduct is attributable if they act under state direction or control. - Nicaragua Case (1986): Effective control test for attribution. - Tadic Case (ICTY, 1999): Overall control test for classifying conflicts (IAC vs. NIAC). Circumstances Precluding Wrongfulness (Art. 20-25 ARSIWA) - Consent: Valid consent by a state. - Self-Defence: Inherent right under Art. 51 UN Charter. - Force Majeure: Irresistible force or unforeseen event. - Distress: Saving lives in extreme situations. - Necessity: Protecting essential interests from grave peril. - Countermeasures: Lawful responses to wrongful acts. - Exceptions: Cannot justify breaches of peremptory norms (e.g., genocide, torture). Legal Consequences of State Responsibility - Cessation of Wrongful Conduct: Obligation to stop the breach (e.g., The Wall Case, 2004 - Israel ordered to cease construction of the security barrier). - Reparation: Obligation to make full reparation for injury caused. - Forms of Reparation: - Restitution: Restoring the pre-breach situation. - Compensation: Monetary compensation for damage. - Satisfaction: Acknowledgment of wrongdoing, apology, or other non-material remedies. Invocation of Responsibility - Injured State: Entitled to invoke responsibility and demand cessation and reparation. - Erga Omnes Obligations: Obligations owed to the international community as a whole. - Example: Barcelona Traction Case (1970) - Obligations erga omnes include prohibition of genocide and torture. - Non-Injured States: Can invoke responsibility for breaches of erga omnes obligations but cannot claim compensation for themselves. Prohibition of the Use of Force Jus ad Bellum vs. Jus in Bello - Jus ad Bellum: When and why force may be used (today's focus). - Jus in Bello: How force may be used (International Humanitarian Law - next week). Prohibition of the Use of Force (Art. 2(4) UN Charter) - Absolute Prohibition: States must refrain from the threat or use of force against the territorial integrity or political independence of any state. - Exceptions: 1. UN Security Council Authorization (Chapter VII UN Charter): - Art. 39: SC determines threats to peace, breaches of peace, or acts of aggression. - Art. 42: Authorizes use of force to restore peace (e.g., 1990 Gulf War). 2. Right of Self-Defence (Art. 51 UN Charter): - Inherent Right: States can defend themselves against armed attacks. - Conditions: - Armed Attack: Must be of significant intensity (e.g., territorial invasion, massive destruction). - Necessity: Immediate response with no alternative means. - Proportionality: Response must be proportionate to the attack. Humanitarian Intervention - Definition: Use of force to protect civilians from atrocities. - Contested Legality: - Example: NATO's 1999 intervention in Kosovo lacked UN SC authorization. - Not Customary Law: No legal basis under Art. 2(4) UN Charter. - Responsibility to Protect (R2P): - Concept: Sovereignty includes the responsibility to protect civilians from atrocities. - Legal Basis: UN World Summit Outcome Document (2005). - Criticism: Often used to justify unilateral interventions without UN SC approval. Key Cases - Tehran Hostages Case (1980): Breach of diplomatic obligations. - Nicaragua Case (1986): Self-defence and attribution of conduct. - The Wall Case (2004): Legal consequences of state responsibility. - Tadic Case (1999): Classification of conflicts and attribution of conduct. - Barcelona Traction Case (1970): Erga omnes obligations. [WEEK 10:] International Humanitarian Law (IHL) Jus in Bello - Meaning: Governs how military operations must be conducted. - Core Principle: Balance between military necessity and humanity. - Difference from Jus ad Bellum: Jus ad bellum deals with the legality of the use of force, while jus in bello regulates the conduct of hostilities. Historical Background - Battle of Solferino (1859): Inspired Henry Dunant to establish the International Committee of the Red Cross (ICRC). - ICRC Goals: 1. Assist victims of armed conflict. 2. Develop treaties to regulate the conduct of armed conflict (Geneva Law and Hague Law). Sources of IHL - Geneva Law: Protects vulnerable groups and victims of armed conflict. - 1949 Geneva Conventions (I-IV): Customary international law. - GC I: Wounded and sick in the field. - GC II: Wounded, sick, and shipwrecked at sea. - GC III: Treatment of prisoners of war (PoW). - GC IV: Protection of civilians in wartime. - 1977 Additional Protocols (AP I & II): - AP I: Applies to international armed conflicts (IAC). - AP II: Applies to non-international armed conflicts (NIAC). - Hague Law: Regulates means and methods of warfare. - 1907 Hague Convention IV: Customary international law, regulates belligerent occupation. Application of IHL - Armed Conflict: Defined in Tadić Case (ICTY, 1995) as resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups. - Types of Armed Conflict: 1. International Armed Conflict (IAC): Between states or involving foreign intervention. 2. Non-International Armed Conflict (NIAC): Between a state and an organized armed group or between such groups within a state. - NIAC Threshold: Protracted violence, intensity, and organization of parties. Basic Principles of IHL - Principle of Distinction: Distinguish between combatants/military objectives and civilians/civilian objects. - Prohibition of indiscriminate attacks. - Doctrine of collateral damage: Proportionality test. - Prohibition of Unnecessary Suffering: Combatants hors de combat must not suffer unnecessarily. - Treaties regulate lawful and unlawful weapons (e.g., dumdum bullets). International Criminal Law (ICL) Historical Background - Post-WWII: Establishment of the International Military Tribunal (IMT) at Nuremberg and Tokyo. - 1990s: Creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). International Criminal Court (ICC) - Establishment: Treaty-based court, entered into force on July 1, 2002. - Complementarity: ICC acts when states are unwilling or unable to prosecute. - Jurisdiction: - Ratione Materiae: Genocide, crimes against humanity, war crimes, and crime of aggression. - Ratione Loci: Crimes committed on the territory of a state party. - Ratione Personae: Accused is a national of a state party. - Ratione Temporis: Crimes committed after July 1, 2002. - Trigger Mechanisms: 1. State party referral. 2. UN Security Council referral. 3. Prosecutor initiates investigation (proprio motu). Criminal Responsibility - Individual Criminal Responsibility (Art. 25 ICC Statute): Commission, ordering, aiding, abetting, planning, or inciting crimes. - Superior/Command Responsibility (Art. 28 ICC Statute): Superior knew or should have known about crimes and failed to prevent or punish them. - Example: Bemba Case (ICC). Sources of ICL - Art. 21 ICC Statute: 1. ICC Statute, Elements of Crimes, and Rules of Procedure. 2. Applicable treaties, international law principles, and IHL. 3. General principles of law derived from national legal systems. International Environmental Law (IEL) Definition and Purpose - Definition: Governs human interaction with the environment, focusing on the protection of natural resources and systems. - Purpose: Addresses global environmental issues requiring international cooperation (e.g., transboundary pollution, climate change). Historical Development - Early Treaties: - 1867 Convention between France and Great Britain on Fisheries. - 1902 Convention to Protect Birds Useful for Agriculture. - Landmark Cases: - Trail Smelter Arbitration (1941): Established state responsibility for transboundary pollution. - Nuclear Weapons Advisory Opinion (ICJ, 1996): Recognized the environment as part of human living space. - Key Conferences: - 1972 Stockholm Conference: First international conference on the environment, led to the creation of the UN Environment Programme (UNEP). - 1992 Rio Earth Summit: Focus on sustainable development, adopted the Rio Declaration. - 2012 Rio Summit: Renewed commitment to sustainable development goals (SDGs). Principles of IEL - Principles to Prevent: - No Harm Principle: States must not cause environmental harm to other states. - Precautionary Principle: Lack of scientific certainty is no excuse for inaction. - Environmental Impact Assessment (EIA): Required for activities with significant transboundary impact. - Principles to Balance: - Polluter-Pays Principle: Polluters bear the costs of pollution. - Common But Differentiated Responsibilities (CBDR): Developed states have greater responsibility for environmental damage. - Inter-Generational Equity: Balance between present and future generations. - Principle of Participation: Affected groups must participate in decision-making. Sustainable Development - Definition: Development that meets present needs without compromising future generations\' ability to meet theirs. - Elements: 1. Inter-generational equity. 2. Sustainable exploitation of natural resources. 3. Balanced use of resources, considering other states\' needs. 4. Integration of environmental considerations into development plans. Key Cases - Tadić Case (ICTY, 1995): Definition of armed conflict. - Trail Smelter Arbitration (1941): State responsibility for transboundary pollution. - Nuclear Weapons Advisory Opinion (ICJ, 1996): Environment as part of human living space. - Bemba Case (ICC): Superior/command responsibility. [WEEK 11:] Introduction to Human Rights What does IHRL deal with? - Human rights are the freedoms and protections that belong to all individuals - IHRL regulates obligations that states owe to individuals - Inherent dignity that all individuals possess (equality before the law): - Creationism (religion) - Natural law (sciences) - Social contract theories (reasonable individual) - Development of modern understanding of a sovereign state: - Monopoly on legitimate force - Imagination of reciprocal dependence - Protection of minorities in democracies IHRL: - Articulates standards of respect and protection to individuals - Guides states in creating laws - Sets in place modes of oversight and reparations - Acts concretely (what is permissible and what is forbidden) - Is based on the principle of state consent - IHRL is unique area of PIL - Different from IHL -- IHRL applies both in times of peace as well as in armed conflict - Different from International Criminal Law (ICL) -- IHRL addresses states IHRL Framework: 1965-2006: 9 core treaties: - UDHR + ICCPR + ICESCR = International Bill of Human Rights - Treaties monitored by independent and unpaid bodies of experts (NOT Binding) - States submit periodic reports of implementation Regional HR Framework: EU system: - Council of Europe: - 46 member states - European Convention on HR (1950) - European Court of Human Rights (enforcement mechanism): - By anyone claiming to be a victim - Admissibility requirement -- exhaustion of legal processes - Court judgements are binding (art 46,44(2)) - 90% rejection rate due to overwhelm Inter-American system: - Organization of American States (OAS) - American Convention on HR - Enforced by two-teer system: - Inter-American Commission on HR (IACHR): - Individual complaints - Non-binding - Violation and no friendly settlement can lead to a case at the IACtHR - Inter-American Court on HR (IACtHR): - No direct access for individuals - Only if state made additional declaration of recognition of court's jurisdiction (US declined) - Binding African system: - African Charter on Human and People's Rights - Enforcement: - African Commission on HPR: - Individuals or groups - Commission is not a court -- non-binding - African Court on Human and People's Rights: - Binding - Only a few member states accepted the competence of the court to receive direct complaints - Otherwise a forward from the ACHPR is needed Arab system: - League of Arab States - Arab Charter on Human Rights (universality but religiously limited) - Arab Committee on HR - Monitors charter does not accept individual or collective complaints - Arab Court of Human Rights - Not enough ratifications Asian system: - Association of South Eastern Nations (ASEAN) -- adopted the ASEAN Charter - Asian Intergovernmental Commission on HR - ASEAN Declaration on HR: - Non-binding Evolution of HR: - 3 Generations: - 1^st^ civil and political rights - 2^nd^ cultural, economic and social rights - 3^rd^ solidarity rights - UDHR -- adopted a UNGA resolution: - Includes: civil, political, economic, social, cultural, minority and collective rights - STRENGHTS: - Universal equality and dignity - Inter-connectedness of rights - Bedrock for domestic developments - Led to other treaties...(ICCPR, ICESCR) - WEAKNESSES: - Non-binding (although many provisions became customary law) - Broadly formulated - Did not represent all peoples - Universality debate: - Criticism: - Only reflects western values - UNGA did not represent all people - Ignores social groups - Developing countries cannot afford all HR - Defense: - Most votes in favor were from non-western states - UDHR was a result of experts from a variety of cultures - HR are not anti-ethical to development Sources of IHRL obligations: - Treatiescustomjudicial decisions/communications of IHRL bodies - General comments (Secondary source): - Non-binding interpretations - Recommendations, communications, codes of conduct (also non-binding) Obligations and duties of IHRL: Beneficiary and duty bearer in HRL: - Each state party is a duty bearer, and all individuals are beneficiaries (ICCPR art. 2) - Beneficiary: - All natural persons - Duty bearers: - States (NO individuals) - Responsible for conduct of state organs and agents - Responsible for conduct of private individuals if there was a lack of due diligence by the state Types of obligations in HRL: - Binary system of obligations: - Negative: - Obligation to respect not take any measures that could result in a violation - Positive - Obligation to ensure respect Proactively prevent, and enact due diligence to investigate and punish perpetrators/compensate victims Application of IHRL: - States must ensure and respect HR established, to everyone within their jurisdiction - Jurisdiction: - Territorial - Extraterritorial: - Spatial model: effective control over territory (occupation) - Personal model: effective control over the victim (detention) - Intermediate model: other state's consent Restrictions to IHRL obligations: - Reservations: - Statements during treaty making process - Effective If invoked prior to becoming a party to a treaty - Persistent objector: - Only customary international law - Effective if objection is invoked just as a norm is beginning to emerge - Ineffective if invoked after norm achieves CIL status or is against a jus cogens norm - General regime of limitations - Limited rights (right to life, liberty) - Qualified rights (freedom of expression, association, respect for private and family life) - Can be limited in order to protect rights of another - Only legitimate if: - Prescribed by law - Pursues a legitimate aim (national security, public safety...) - Necessary in a democratic society - Relevance and proportionality - Absolute rights (freedom from torture, slavery) - No limitation possible - Derogations: - Possible if permitted by a treaty - Formal and substantive requirement - War and public emergency - Certain rights do not allow derogation (jus cogens norms) - Limitations are during normal circumstances and derogations are only during specific circumstances - Withdrawal: - Possible if permitted - Effective only following notification - CIL and jus cogens norms still apply [WEEK 12: ] Right to life: - Entitlement of all individuals -...to be free from acts & omissions indented or expected to cause unnatural or premature death (General Comments 46) - Unborn life - Conflicts with mother's right to life - ACHR art.4, life starts with conception - Right to die - Margin of appreciation - Appropriate safeguards Sources: - Treaty law: - ICCPR art 6(1) - ECHR art 2 - ASEAN Declaration art 11 - IACHR art 4 - CIL: - Prohibition of arbitrary deprivation of life - Believed by some to be jus cogens - Non-binding guidelines mostly addressing law enforcement officials Typology: - Core right - Not absolute, very limited exceptions - Non-derogable - Rightful act of war the only exception Obligations: - Negative obligation to respect: - No arbitrary deprivation - Arbitrary = unlawful - Non-refoulment (Masih Shakeel v. Canada) - Positive to ensure respect (prevent & react): - State organs and private entities: - Adapt legislation (on use of lethal force) - Train and educate (police, forces, judges, prosecutors...) - Protect individuals who are at real risk of lethal violence - Investigate, adjudicate, punish perpetrators and ensure remedies - Refoulment (seek assurances from other state) Death penalty: - Abolitionists - DP is abolished - Retentionists - DP is implemented - No universal prohibition - Some treaties recognize as exception to right to life - Some treaties prohibit its usage - Highly regulated: - Only for crimes of severe gravity - Certain individuals excluded - Not unlawful nor discriminatory - After a due process - Certain execution methods are banned - ICCPR parties who abolished the DP CANNOT: - Reintroduce it (General comments 36) - Transfer individual to an retentionist state (non-refoulment) Use of lethal force by law enforcement: - During execution of operations: - Required legal basis - Necessary to protect human life from: - Imminent serious injury or death (not property etc...) - Last resort - Obligation to use non-lethal alternatives first - Principle of proportionality - Must be carefully directed - Beyond execution of operations: - Obligations still apply: - Operations must be planned and controlled to minimize risk to life - Accountability and remedies Freedom from torture, inhuman & degrading treatment Sources: - Treaty law: - ICCPR art 7 - ECHR art 3 - ASEAN Declaration art 11 - IACHR art 5 - UNCAT -- specialized treaty - CIL: - Jus cogens - Additional guidelines mainly addressing law enforcement Obligations: - Negative to respect: - No conduct amounting to degrading or inhumane treatment, torture - Includes non-refoulment - Positive to ensure respect: - State organs and private entities (adopt, train and educate, investigate, adjudicate, punish, remedy) - Refoulment: seek assurances Typology - Core right - Absolute right Ill-treatment: - Minimum level of severity required - Relative assessment Degrading treatment: - Invokes fear, anguish, inferiority and humiliation Inhumane treatment: - Premeditated treatment causing actual bodily injury or physical/mental suffering Torture: - Involvement of state Threat of torture: - Can amount to torture - If inflicts same amount of pressure - Consequences vary [WEEK 13:] Freedom of expression: Introduction to Freedom of Expression - Definition: Freedom of expression is the right to express opinions, ideas, and information without interference from public authorities. - Importance: It is a cornerstone of democracy, enabling public debate, accountability, and the exchange of ideas. - Potential Issues: Speaking out can sometimes lead to personal risks, such as retaliation, harassment, or legal consequences. Sources of Freedom of Expression Freedom of expression is protected under various international and regional human rights instruments: Universal Human Rights Instruments - Article 19, Universal Declaration of Human Rights (UDHR): - Everyone has the right to freedom of opinion and expression, including the freedom to seek, receive, and impart information through any media, regardless of frontiers. - Article 19, International Covenant on Civil and Political Rights (ICCPR): - Similar to UDHR but adds that the exercise of this right carries \"special duties and responsibilities.\" - Restrictions are allowed if they are: - Provided by law. - Necessary for: - Respecting the rights or reputations of others. - Protecting national security, public order, public health, or morals. - Article 20, ICCPR: - Prohibits propaganda for war and advocacy of hatred that incites discrimination, hostility, or violence. - Other Universal Instruments: - Article 4, Convention on the Elimination of All Forms of Racial Discrimination: Prohibits racist speech and organizations. - Articles 12 and 13, Convention on the Rights of the Child:Protects children's right to freedom of expression. Regional Human Rights Instruments - Article 10, European Convention on Human Rights (ECHR): - Protects freedom of expression but allows restrictions for reasons such as national security, public safety, and the protection of others\' rights. - Article 11, EU Charter of Fundamental Rights: Similar to ECHR. - Other Regional Instruments: - American Convention on Human Rights (Articles 13 and 14). - African Charter on Human and Peoples' Rights (Article 9). - Arab Charter of Human Rights (Article 32). - ASEAN Human Rights Declaration (Article 23). Scope of Freedom of Expression Freedom of expression encompasses several related rights: Freedom of Opinion - Internal Dimension: Everyone is entitled to hold opinions without interference. - No Restrictions: No one should face discrimination or repression for their views. Freedom of Expression - External Dimension: Includes the right to seek, receive, and impart information and ideas through any medium (oral, written, print, art, internet, etc.). - Media Freedom: Derived from individual freedom of expression, it protects journalists and media outlets. - Freedom of Information Laws: The public has the right to access government-held information, subject to legitimate restrictions. Media Freedom - Protection of Journalists: States must protect journalists from threats, violence, and harassment. - Who is a Journalist? Includes professional reporters, bloggers, and anyone engaged in self-publication. - Whistleblowers: Protected under Article 10 ECHR (e.g., Guja v. Moldova, 2008). Freedom of Information - Right to Access Information: Governments must disclose information of public interest unless there are legitimate reasons for withholding it. - Global Adoption: Freedom of information laws have been adopted worldwide, with many countries enacting them in the 20th and 21st centuries. Limitations on Freedom of Expression Freedom of expression is not absolute and can be limited under certain conditions: Three Tests for Restrictions 1. Lawful: The restriction must be prescribed by law. 2. Legitimate: The restriction must serve a legitimate aim (e.g., national security, public order, protection of others\' rights). 3. Necessary in a Democratic Society: The restriction must be proportionate and necessary. Specific Examples of Limitations - Defamation: False statements damaging reputation can lead to civil or criminal penalties. - Hate Speech: Advocacy of hatred, violence, or discrimination is prohibited. - Blasphemy: Criticism of religion is distinct from incitement to hatred based on religious beliefs. - Privacy: Balancing freedom of expression with the right to privacy, especially for public figures. Challenges in the Digital Age - Online Platforms: The rapid growth of online news and social media has created new vulnerabilities, such as disinformation. - Media Regulation: Ethical and regulatory codes are needed to ensure responsible behavior by news creators and platforms. - Case Law: Cases like Delfi AS v. Estonia highlight the challenges of regulating online content while protecting freedom of expression. Key Case Law - ECHR, Castells v. Spain (1992): Emphasized the importance of free political debate in a democratic society. - ECHR, Von Hannover v. Germany (2005): Balanced freedom of expression with the right to privacy for public figures. - ECHR, Axel Springer AG v. Germany (2012): Further clarified the balance between freedom of expression and privacy. [WEEK 14:] Right to liberty and fair trial Right to liberty Sources: - Treaty law: - All major international and regional treaties - CIL: - Prohibition of arbitrary detention (jus cogens) - Soft law: - Nelson Mandela rules Concepts: - Right to liberty refers to physical liberty - Rule: NO deprivation of liberty - Deprivation: - Objective: - Confinement to a restricted space for a certain length of time - Subjective: - Lack of consent to the confinement - Restriction of liberty (different than deprivation, General Comments 35): - Curfews, police supervision, compulsory residence, house arrest, involuntary hospitalization Typology: - Not an absolute right (ICCPR art 9, ECHR art 5) - Partly jus cogens (NO arbitrary detention) - Derogation in time of emergency (ICCPR art 4, ECHR art 15) Obligations: - Negative: - NO arbitrary deprivation of liberty: - Unlawful, unnecessary, unpredictable, discriminatory - Non-refoulment - Positive: - State organs and private entities also must respect (private prisons) - Non-refoulment: seek assurances General safeguards: - Information: - Reasons for detention - Right to challenge detention: - Independent court of law, access to lawyer - Right to humane treatment: - Treatment of detainees, detention conditions - Remedies for unlawful detention: - Depends on circumstances Enforced disappearances: - Deprivation of liberty - State involvement in the act - Refusal to acknowledge the deprivation or concealing the fate or whereabouts of the victim The right to fair trial Sources: - Treaty law: - All major IHRL instruments - CIL: - Human Rights Council of UN: part of CIL and is jus cogens - ECtHR: partial jus cogens - Soft law: - Basic Principles on Independence Concepts: - NOT outcome, but procedure and organization - Criminal charge: - Classification in domestic law - Nature of the offence - Severity of the penalty - Determination of civil rights and obligations - Disputes between private individuals - Disputes between individual and a state - Not purely public (taxes) Obligations: - Negative: - NO action shall be taken that could jeopardize the right and its safeguards - Non-refoulment: if there is a risk of denial of justice - Positive: - Investments in the court system - Ensure that authorities adhere to the guarantees - Non-refoulment: seek assurances General safeguards: - Institutional: - Competent, Independent and Impartial tribunal: - Tribunal: - Binding decision - Independent - Impartial: - No personal bias - Procedural: - Equality of access - Fair and public hearing - Reasonable time Military Courts - Issues: - IHRL does not prohibit MC trying civilians - Lack of competence, independence and impartiality - Fusion of judicial and executive power - Possible lack of fairness, public hearing, adequate legal defense, lack of higher court that can review the judgement - States must demonstrate: - Necessity of military court's existence - Trials have adopted the safeguards in accordance with IHRL [WEEK 15:] Equality and Non-Discrimination Equality: - Formal: - De jure equality - Equality before the law & prohibitions of direct discrimination - Likes must be treated alike - Substantive: - De facto equality (more modern approach) - Equality of opportunity and of result - Prohibition of indirect discrimination - Affirmative action Sources: - Treaty law: - ICCPR art 2, 3, 26 - ECHR art 14 - ICERD, CEDAW, CRC, CRPD, specialized treaties - CIL: - IACtHR -- jus cogens - Soft law: - Declarations, HR committee Subordinate norms: - Must be invoked together with another right in the instrument (ECHR art 14) Autonomous norms: - Guarantees a right in general (UDHR art 6, ICCPR art 26) Prohibited grounds: - Open-ended list: - General treaties (ECHR art 14) - Exhaustive list: - Specialized treaties (ICERD art 1(2)) Obligations: - Negative: - Abstain from actions that constitute discrimination: - Direct discrimination (de jure) - Law prohibiting female police officers - Indirect (de facto) - Height requirement to join the police - Positive: - Prevent, respond and redress - Promote guarantee and secure equality - Temporary special measures: - Aimed at correcting the position of members of a target group - Permitted only to a certain extent: - Legitimate and proportional manner Approach to determine discrimination: I. Does the issue fall within the ambit of a right? II. Has there been a difference in treatment that caused the prejudicial effect? III. Was it anchored in a prohibited ground? IV. Was it justified? Not every difference in treatment is discrimination: - Difference in treatment is justified and serves a legitimate and proportionally adequate goal Burden of proof: - Complainant must show: - Freedoms set out in the instrument (prima facie link) - Difference in treatment - Prohibited ground - Respondent must show: - Difference in treatment is reasonably justified Women's rights: - General prohibition in IHRL - Specialized treaty: CEDAW - Tackles formal and substantive equality (art 1) - Eliminate both effects and root causes of discrimination - Optional protocol to CEDAW: - CEDAW Committee - Can hear individual complaints - Non-binding - Violence against women: gender-based violence = direct discrimination - Prohibition of GBV -- CIL from 2017 - Regional treaties on VAW: - IACPPE of VAW - Istanbul Convention - Bodies of jurisprudence: - CEDAW Committee - IACtHR - ECtHR