Public International Law PDF

**[Public international law ]** **[Introduction : ]** [**[alessandro.chechi\@eui.eu]**](mailto:[email protected]) +-----------------------------------------------------------------------+ | PLAN | |...

**[Public international law ]** **[Introduction : ]** [**[alessandro.chechi\@eui.eu]**](mailto:[email protected]) +-----------------------------------------------------------------------+ | PLAN | | | | I. The notion of International Law (IL) | | | | II\. The enforcement of IL | | | | III\. The evolution of IL | | | | IV\. Some fundamental principles governing international relations. | | | | V. IL in the news | +-----------------------------------------------------------------------+ [I/ The notion of International Law] **Is there a definition of IL?** 1. 2. 3. - - - - - Overall objective = facilitate relation for global order/ peace, to be honest, to avoid lack of communication. International law is always the product of state consent. It is not there to serve states, it is made by states themselves, they are the principal actors. Different legal sources (treaties, agreements). States are just fictions created by humans because we need them to achieve certain roles. People are behaving for the state. States have the powers to create and apply the law. Relationship between states and international organizations. Human rights have been given to us so we can enjoy more rights. **Is IL really "law"?** Treaties made tend to international law. IL is not effective. Theoretical point of view: the "existence" of IL has been challenged by some legal scholars because they aren't the legal structures like a parliament. Realist point of view: IL is not law because it is not respected / complied with There are scholars and experts that are criticized. There is no parliament, government and according to some theories if there is not that (supreme organs) to give orders to citizens, there is no law, there is a relation that is missing. The realist point of view, some are saying that this law is not respected, we don't care about it. So, it doesn't exist. Henkin said that what really matters is not that we don't need the same institutions for compliance and everything but just have to consider that it is reflected in the states..... The primary objective is to facilitate peaceful relations between states. New weapons have consequences and so IL is for this is doing a lot. Many times, we hear that states shouldn't do something (quite a treaty or come in one), but states can do everything they want, they are free. The USA left 10 international treaties. But it doesn't demonstrate the ineffectiveness of IL. Pragmatic solution by Prof. Henkin → [what really matters is that:] - - - - - The fact that a State does not ratify or "quit" a treaty does not demonstrate the ineffectiveness of IL **Is IL really "international"?** See at the educational background and language of legal experts Diversity in textbooks and opinions about key issues such as for instance individuals as subjects of IL, NATO's intervention in Kosovo, the invasion of Iraq and the annexation of Crimea, and cybersecurity. → **"Multipolar" or "interstate" law are better definitions?** International law does exist. There are different perspectives on certain events. [II/ The enforcement of International Law] The scope of international law is very wide, and it is about everything. But about the enforceability, there is a problem. Enforcement = application = implementation Implementation of IL is decentralized→ depends on the will of States The role of the United Nations and other International Organizations (IOs) The role of the bodies / organs established by international treaties The domestication of international law required a proactive action by the states. There is no vertical relationship like in the state. There is a horizontal way because States has to comply with the rules and the same states have created them. [ Reasons why States comply with IL:] - - - - - - [III/ The evolution of International Law] 1648 (Peace Treaty of Westphalia) -- 1919 (end of First World War): traditional international law 1648-\> recognize each other, make the effort to create relations. War in Europe continued like before. 1919 -- today: modern international law States faced catastrophe, new weapons, and stuff so they agreed that change was necessary. At the end of WW1, a new phase started, states accepted to create for themselves some limitations. International law developed with time. →Increasing legal restraints placed on States (and on their sovereign powers) deriving from customary IL, treaties and participation in international organizations. Under modern international law the concept of State sovereignty should be understood as territorial independence subject to no legal constraints except those imposed by IL! '\[Le\] principe de l'État «souverain» \... est aujourd'hui l'ennemi numéro un de la civilisation, le dangereux fomenteur du nationalisme et des conquêtes. Le concept de l'État souverain, de l'État qui, dans ses limites territoriales, peut faire des lois, indépendamment de ce qui se passe en dehors de ces limites, est aujourd'hui anachronique et faux' (Luigi Einaudi, "Contro il mito dello stato sovrano", Risorgimento Liberale, 3 janvier 1945) Sovereignty is very much the subject of many states, political leaders complain that states should stop giving up sovereignty, national interest is not fulfilled. If we really want to achieve those aims in the Un charter states have to cooperate, and giving up sovereignty doesn't mean that power is lost but an organization can deal better with global problems, some problems are not only national. [ Some trends under modern international law:] - - - There is a visible, material change of situation. The ICC is here to complement the national jurisdiction. Only judge crimes against...(blablabla). Multilateralism, global changes, we can face these situations. Some countries leave international organizations but not because it doesn't work but for example as a protest. [The History of International Law:] *http://www.tiki- toki.com/timeline/entry/459289/The-History- of-International-Law/* [IV/ The fundamental principles of IL] Definition of territorial sovereignty: "Customary norm that bestows upon every State the right to exercise in an exclusive manner the authority to govern over its own territorial community" (B. Conforti) Article 2: sovereign equality of all its members State has the power to oppose an intervention of another country. In case they are abroad (the representations) there is an immunity (1M, ambass) Ban on intervention in internal or external affairs of other States "\[T\]he principle \[of non intervention\] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones" (ICJ, Nicaragua case 1986, para. 205) Peaceful settlement of disputes -\> seats the rules Prohibition of the threat or use of force Respect for human rights (art.1/art.2/ Fundamental Charter) Article 2 paragraph 6 of the charter, disputes cannot be resolved by violence. Respect of human rights [V/ International Law in the news] 1\. Russia -- Ukraine war? 2\. The COVID-19 pandemic? 3\. Waves of migrants heading for European shores? 4\. Weather events due to climate change? 5\. AI developments by private companies? 6\. Israel military intervention against Hamas ? -\> "Lawfare" **[The Subjects of International law]** +-----------------------------------------------------------------------+ | PLAN | | | | 1\. The subjects of International Law (IL): the State | | | | 2\. Recognition of States | | | | 3\. The principle of self-determination | | | | 4\. State succession | | | | 5\. The other subjects of IL | +-----------------------------------------------------------------------+ 1. An "entity" capable of possessing rights and duties as well as the power to protect its rights by bringing legal or diplomatic actions An "entity" with international legal personality An "entity" does not exist in IL without international legal personality The principal subject of IL is the State Legal personality means that it can act and is recognised as international. Because it wouldn't be able to apply the law without. Criteria of Statehood. There are 4 criteria of statehood (set forth in the Montevideo Convention on the Rights and Duties of States of 1993), which must exist at the moment of the "birth" / ["creation" of a State:] 1\. Population 2\. Territory 3\. Government 4\. Independence 1993: states decided to identify the 4 key elements that should be proved by an entity that claims to be a state, and then the international community would agree that it is a state with that, it can sign treaties,... It has to be fulfilled at the moment of creation. There is a global consensus about what a state is. The 4 criteria of statehood are rooted in the principle of effectiveness: with regard to its creation, no entity should be regarded as a State within the meaning of IL, unless it has a government which controls a territory and its inhabitants effectively and independently from any other State. Today there is a single globally shared political paradigm...shared also by the Taliban in Afghanistan. [(1) Population, within the State territory: number, stable residence and heterogeneity are irrelevant] a. b. [(2) Territory] → Physical dimension → whether the territory is tiny or disputed is irrelevant. The establishment / expansion of maritime sovereignty through underwater cultural heritage. - - → Legal dimension → possession and exclusive exercise of internal and external territorial jurisdiction / sovereignty. [The internal aspect of territorial jurisdiction/ sovereignty concerns the power of a State to : ] - - - Jurisdiction to enforce: IL does not permit the extraterritorial enforcement of domestic laws No State can take measures on the territory of another State to enforce its laws without the consent of that other State→reparation Example: abduction (or extraordinary rendition) Adolf Eichmann Hassan Mustafa Osama Nasr, also known as Abu Omar Cesare Battisti [There are five legal bases upon which a State (and its tribunals) is allowed to affirm jurisdiction over the conduct of individuals (jurisdiction to adjudicate):] 1\. the territoriality principle 2\. the nationality principle 3\. the protective principle 4\. the passive personality principle"' 5\. the universality principle [(3) Government, capable of maintaining order and stability, thus avoiding anarchy →There is no required political form under IL] [(4) Independence→capacity to enter autonomously into relations with other States] "In consequence of its internal independence and territorial supremacy, a State can adopt any Constitution it likes, arrange its administration in a way it thinks fit, make use of legislature as it pleases, organize its forces on land and sea, build and pull-down fortresses, adopt any commercial policy it likes and so on" (Oppenheim) However, absolute independence does not exist today→participation in international organizations and treaties Examples: dependent States (colonies, satellites, micro-States) Examples of Micro-States States created with military assistance are not independent and thus do not fulfill this criterion: see the Turkish Republic of Northern Cyprus (invasion in 1974, declaration of independence in 1983). 2. Recognition is a discretionary political act exercised unilaterally by a State acknowledging the existence of another State [The political aspect exemplified:] - - Is the recognition of a new State a precondition or a consequence of international legal personality? Two theories: declaratory and constitutive 26 Declaratory theory = recognition is a mere formality; a State exists if the criteria of statehood are fulfilled. - - Constitutive theory = an "entity" will not acquire legal personality even if it fulfills the criteria of statehood→the establishment of a new State depends on recognition by other States. [Problems:] - - - The reality: neither the declarative nor the constitutive theory dominates, the practice sees the application of a mixture In some situations recognition is declaratory (decolonization); in other situations recognition is constitutive (former Yugoslavia) For sure, no "entity" can participate in international relations if the vast majority of States refuses to recognize it as being a State recognition→accorded collectively by a group of States with a peace treaty with specific acts adopted within an International Organization (IO), such as the UN and the EC/EU *[Collective recognition --EC/EU]* The policy of the EC/EU after 1989 → "Declaration regarding East Europe and the Soviet Union" and "Declaration regarding Yugoslavia" of 1991 → [listing requirements for recognition:] 1\. Respect for the UN Charter 2\. Respect for the rights of minorities 3\. Respect for the inviolability of all frontiers 4\. Commitment to settle by agreement or arbitration all disputes 5\. Acceptance of all relevant commitments to disarmament and nuclear non-proliferation [In addition, former Yugoslav States had to submit a formal application to an arbitral body (Badinter Commission) by 23 December 1991 containing a declaration that:] 6\. they wished to be recognized as independent States 7\. accepted the commitments decided by the EC/EU 8\. intended to respect human rights law 9\. supported the EC/EU and UN efforts in resolving the crisis 10\. had no territorial claims towards neighboring States The EC/EU endorsed the constitutive theory The EC/EU sought a commitment on the part of the "entities" waiting to be admitted to the international community as States in respect of certain fundamental values *[Collective recognition -- UN]* Articles 3 and 4 UN Charter If the majorities are satisfied even a State not recognized by some UN States can obtain UN membership UN membership is not synonymous of statehood , but it can implicitly confirm the existence of a State A State can exist without and before attaining UN membership: the case of Switzerland before 2002 A State may voluntarily withdraw or be expelled from UN membership without affecting its statehood status History proves that the UN is a forum to coordinate recognition or non-recognition [Collective (non-) recognition under the UN Charter is guided by these principles:] 1\. a State cannot be created by a regime based on the illegal use of force (conquest) 2\. a State cannot be created with the illegal intervention of one or more States in a civil war situation 3\. a State cannot be created by a regime based on unlawful policies like racism [The ICJ affirmed these 3 principles in:] - - This obligation of non-recognition suggest that collective recognition has constitutive effects - - - - States wanting to apply to the UN have to send a letter to the general secretary, once he verifies all the criterias are fulfilled, gets to the security council. - - - - - - 3. General Assembly resolutions 1514 and 1541 of 1960 Resolution 2625 Of 1970 [InternationalCovenantonCivilandPolitical Rights of 1966 + International Covenant on Economic, Social and Cultural Rights of 1966:] "All peoples have the right to self- determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" →ICJ, Advisory Opinion, Western Sahara (1975) →ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (2004)→watch Broken →ICJ, Advisory Opinion, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (2019)→read The Last Colony by Philippe Sands → Self-determination can be considered one of the fundamental human rights [ Legal scope of the right to self-determination: ] 1\. peoples under colonial domination→ external self-determination 2\. peoples subject to foreign military occupation→external self-determination 3\. racial groups denied full access to government in a State→external or internal self-determination [ Rights and obligations:] - - - The right to self-determination does not apply to the demands of "minorities" Clash between the right to self-determination and the principle of territorial integrity Today IL recognises the right to secede from a State, or to create a new State on the territory of the former State, only in extreme cases, subject to good faith effort to resolve the crisis in a peaceful way with the consent of all parties concerned IL does not encompass a unilateral right to secede Resolution 1514 of 1960: «Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations» Resolution 2625 of 1970:«Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples \[\...\]» [ Quebec : ] →Referendums in 1980 and 1995 and decision of the Canadian Supreme Court (1998) →The Court found that there was no positive entitlement to statehood outside of the colonial context or in the absence of severe repression or exclusion from the state →The mechanism to ensure that a seceding entity respects the rights of other parts of the state is negotiation [ Palestine : ] →the inscription of the "Church of the Nativity and the Pilgrimage Route, Bethlehem" on the list of the UNESCO World Heritage Convention (https://mediaserver.unige.ch/play/83383) →Palestine ratified the UNESCO World Heritage Convention on 8 December 2011 (UNESCO had accepted Palestine as it member state on 31 October 2011) [Crimea→referendum on 16 March 2014, but in violation of international law standards:] - - - - - [The international response to annexation:] The annexation of Crimea is not recognized by States→the obligation of non-recognition aims to prevent the validation of an unlawful situation UN General Assembly Res. 68/262→collective application of the rule of non-recognition UN SC draft resolution vetoed by Russia Russian referendums carried out in occupied Ukraine from 22 to 27 September 2022 Kurdistan 4. The best way to define annexation of Crimea is unlawful annexation.  **Dismemberment**, when a State becomes extinct and gives rise to two or more new States (Yugoslavia, Czechoslovakia) **Merger**, when two or more States become extinct as a result of a fusion and give rise to a new State (Yemen) **Incorporation**, when a State is incorporated in another State, with the incorporated State becoming extinct (Germany) **Secession**, when a State loses part of its territory without becoming extinct, with the ceded territory becoming a new State (or merging with another State) (USSR) 5. ❑ Insurgents and belligerents They use weapon against the military/police/state but they respect humans right Can be legitimate as subject in IL Respect fundamental human rights ❑ National Liberation Movements → Libyan National Transitional Council Conflict internal civil conflict difference is the part of the population that considers those revealed as legitimate entities. They create entities to control the population. Recognised by the population as an alternative option of government. The objective is to transform the state where they are. ❑ De facto regimes→the Turkish Republic of Northern Cyprus which depends on Turkey regime who control a land and who created infrastructures for the people. Not a state but a regime who exist because of its dependance of an existing state. [❑ International Organizations:] International Telegraphic Union Universal Postal Union League of Nations United Nations Council of Europe European Economic Community North Atlantic Treaty Organization... article 23 / article 24 / article 25 /article 27 al 3 of the UN charter -\> security council Permanent association of States Established by a treaty or other international legal instrument Created to attain certain objectives Endowed with administrative organs (internal organs) having rights (immunities), duties, powers and competences exercised at the international level Having international legal personality The treaties established obligations for the international organization. Established with an agreement between states. Sacrifice some national sovereignty in order to reach a goal which cannot be reached by the state itself, alone. In the agreement we find the name of the organ, rules and procedure of election of the bodies. [❑ Non-Governmental Organizations : ] private character not for profit governed by the national law of residence activity at the international level →Geneva Call ([[https://www.genevacall.org/]](https://www.genevacall.org/)) [Examples : ] 1. 2. 3. They are non-governmental so independent from economic and political support and they can decide differently from states. There are no national treaties. Beyond the borders. May be agreements to intervene in a state. Geneva call is a special entity because it also has an international legal personality (they can sit next to the member states in all meetings concerning the Geneva convention) because of the expertise of its members. It is the only one working for the implementation of IL in a special way. They are rules prohibited (use of children, landmines, sexual violence) but they are not implemented by these non states during war so this ONG teach humanitarian IL to person which has contact with these non-state groups. The result is that they convince them to receive the teaching and they become aware of this rule and they sign a deed of commitment in which they decide to commit the rules. They are doing that/ accepting that in order to become legitimate actors, they were not aware of it. Unesco: To come to the state they have to have the consent of the state. This group needs to preserve culture to unit people and have a state with united people. [❑ Multinational corporations : ] Multinational corporations may bring beneficial effects but also disastrous effects in the countries where they operate Multinational corporations may infringe the human rights that the States where they reside or where they operate have committed to respected through the ratification of human rights treaties ( see the Larfarge/Holeim case) Multinational corporations are, in general, not recognized as subjects of international law→ they are only accountable under the national law of the States where they reside (or where they operate) In practice, rights and obligations may be bestowed on multinational corporations under certain circumstances: o Rights under international human rights law and international economic law→protection of property and investments→ICSID arbitral tribunals o Obligations under international human rights law →"Corporate Social Responsibility"→Guiding Principles on Business and Human Rights, UN Human Rights Council, 2011 (not legally binding) Some are more powerful than states. But they also can have disastrous effects like Total energy and their environmental damages. Some don't respect human rights. They have rights and obligations given by IL because they have an impact on life in the state. People can have access to special international tribunals to protect their rights. But the obligations are not legally binding. They have to comply with their activities that have an impact on the rights of individuals. They must comply with national laws: there are countries like Switzerland, France and UK where national authorities controles on the MC: submit reports to demonstrate every year the non-use of state, child labour, environmental impact (French law 2017). But sanctions are very very weak. [❑ Individuals : ] - active: rights passive: responsibilities - - - - - - - [The 1946 judgment of the Nuremberg Military Tribunal:] "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals \[\...\] can the provisions of international law be enforced". "Individuals have international duties that transcend the \[\...\] obligations of obedience imposed by the \[\...\] State \[\...\]. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State \[\...\]". - The 2016 Judgment on the case Prosecutor v. Ahmad Al Faqi Al Mahdi by the International Criminal Court→destruction of cultural monuments in Mali These rights and responsibilities are not derived from their status because they are coming from states, they are given by states. LaGrand-\> they decided to move from Germany to the USA and did a robbery and killed somebody during the robbery ; they've been sentenced to death. ICJ said that the USA violated an article of the Geneva convention. A person arrested can contact the consular to have a legal support. ICJ declared that the USA violated the right and disrespect the treaty they ratified. For the first time in 2016 the ICC said that an individual was responsible for another kind of war crime -\> condemned to 9 years of prison for having destroyed cultural monuments in Mali when it was controlled by terrorist group. [ ❑ Indigenous peoples and minorities: from "objects" to "subjects" of international law] [(cont'd) : ] - - - - - They are no longer objects of international law, they were discriminated against by state and now they have a different statut; if they have reached a better statut in their state, it is because of their fight and protest at the national level. **[Sources and implementation of international law ]** +-----------------------------------------------------------------------+ | PLAN | | | | I. The sources of International Law (IL) | | | | II\. The implementation of IL | +-----------------------------------------------------------------------+ [I/ Sources of International Law] [Article 38 Statute of the International Court of Justice (ICJ):] "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; b\. international custom, as evidence of a general practice accepted as law; c\. the general principles of law recognized by civilized 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". [Article 38 ICJ Statute indicates the following sources of international law (IL):] 1\. International customary law 2\. Conventions 3\. General principles of international law 4\. Judicial decisions 5\. Writings of publicists 6\. Equity [The sources that we are going to look at together:] 1\. International customary law 2\. Conventions 3\. General principles of international law 4\. Judicial decisions 5\. Other sources of international law [To be noted:] →Autonomy of IL →Jurisdictional perspective of Article 38 [→Criticisms on Article 38:] - - 1. [The difference between customary rules and treaty rules : ] - - [ Customary law requires two elements:] 1\. objective (material) 2\. subjective (psychological) [International Custom -- The objective element : ] The objective element: a relatively uniform and constant State practice→the repetition of certain behavior on the part of States for a certain length of time which manifests a certain attitude, without ambiguity, to a certain matter What a State does with regard to a particular matter: public actions and public verbal acts State organs such as heads of States, foreign ministers, high ranking officials, its legislature or its judiciary Types of acts: treaties (bilateral or multilateral), diplomatic correspondence, policy statements, the opinions of official legal advisers, official manuals, executive decisions, order to naval or air forces, State legislation, national judicial decisions, acts of international organizations\... **1. What duration of State practice is required?** ICJ, Judgment North Sea Continental Shelf Cases (1969): "Although the passage of only a short period of time is not necessarily \[\...\] a bar to the formation of a new rule of customary international law \[\...\], an indispensable requirement would be that within the period in question \[\...\] State practice \[\...\] should have been both extensive and virtually uniform \[\...\]; 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" (para. 74) No particular/predetermined duration is established for State practice to become customary law Example of "immediate" / "instant" customs: freedom of extra-atmospheric space after the first satellite flew over the stratosphere (national territory is about 10 miles above the ground in the atmosphere)→all States agreed **2. How uniform and consistent must the practice be?** Major inconsistencies in State practice will prevent the creation of customs, whereas minor inconsistencies will not do so! ICJ, case Nicaragua v. US (1986): "If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself \[\...\], the significance of that attitude is to confirm rather than to weaken the rule" (para. 186) **3. How general/extensive must the practice be?** Universality is not required! And in fact is rarely achieved The practice of specially affected States→the opposition of a minority of interested States can block the creation / consolidation of a new customary norms [The subjective (psychological) element (opinio juris) : ] →States must regard a customary rule as binding →States must be convinced that they are under a legal obligation to obey a rule! The subjective element allows the making of a distinction between customary rules and rules of international "comity"→acts which are not performed by a sense of legal duty! ICJ, Judgment North Sea Continental Shelf Cases (1969): "Not only must the acts concerned amount to a settled practice, but they must also \[\...\] 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 \[\...\] feel that they are conforming to what amounts to a legal obligation. There are many international acts, e.g., in the field of ceremonial and protocol \[\...\] which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty" (para. 77) [International Custom -- Jus cogens : ] IL has the character of jus dispositivum Jus cogens rules→peremptory norms→"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted" (Article 53 of the Vienna Convention on the Law of Treaties (VCLT)) Jus cogens rules are prohibitive (rules of abstention), contain obligations of result (not obligations of conduct) Jus cogens is a special category of customary international law rules→not mentioned in Article 38 ICJ Statute Articles 53, 64, 66 and 71 of the VCLT There is no list of jus cogens rules, however it is generally accepted that jus cogens bans aggressive war, crimes against humanity, war crimes, sea piracy, genocide, racial discrimination, slavery, and torture\... [Obligations erga omnes : ] ICJ's decision in Barcelona Traction (Belgium v. Spain) of 1970: «\[\...\] an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State \[\...\]. \[\...\] \[T\]he former are the concern of all States \[\...\]; they are obligations erga omnes. Such obligations derive, for example \[\...\], from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person \[\...\]» (para. 33). [ICJ's Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 2004:] - - are accepted and recognised by the international community of States as a whole allow all States to claim from the responsible State the cessation of the wrongful act and reparation -- even if they are not specifically affected by the violation →this procedural feature is the difference between rules jus cogens and obligations erga omnes - - - - - - - - [1. International Custom] The persistent objector rule: the State that persistently, consistently and openly dissents from a customary international law rule during the formative stage will not be bound by it Universality is not required for customary rules The persistent objector rule does not apply to peremptory rules / jus cogens Examples of the persistent objector rule: UK, US and France object to the prohibition on the use of nuclear weapons. These three states constantly oppose to a binding rules about the weapons. Customary rules must be proved by the State(s) -- it cannot be presumed. Wherever there is a dispute the parties involved must be using the customary rules. This burden of proof is required in connection with a dispute to be decided by a tribunal (national or international)→ICJ Judgment Germany v. Italy (2012). They need to demonstrate what the practice is. What about "new States"? We have binding rules or customary international rules. ex : Kosovo is going to be a new state it will be recognized. Are they bound to customary law ? Did they know the existence of the rules ? Yes they are because if they want to be part of the international community they have to. The new state have to like apply and complies [2. Conventions] One type one source [The Law of Treaties is a body of rules which provides a definition and regulates the : ] -- formation, -- entry into force, -- the application, -- the validity, -- the amendment and modification, -- the interpretation, -- the suspension and termination\...\...of conventions / treaties / agreements / pacts / covenants (bilateral or multilateral) Example of convention : TFEU, treaty of Rome\...ect. We have customs (prohobition of genocide, world crimes which by nature is not written but the states decide to put teh rules in writing. It's not coutume but a convention here. TFEU : talk about free movement of persons, the functions of the content decided by states for their need. The law treaty used by the state to write a treaty was used by the European community before the adoption of the TFEU. [The Law of Treaties : ] In 1987 the law of treaty was only a customary rule in the sense but that was not written. Effort was made because they decided to write down the customary rule on the law of the treaties. The Law of Treaties does not deal with the substance of a (bilateral or multilateral) treaty, i.e. rights and obligations The Law of Treaties has been codified: the Vienna Convention on the Law of Treaties (VCLT) of 1969 The vast majority of the provisions of the VCLT reflect customary international law rules The law of treaties is not a source but the method to create a valid convention. [The fundamental principles of the Law of Treaties:] ❑ Free consent → the relative effect of treaties→exceptions Articles 34-36 VCLT (obligations and / or rights of third States). States made the rules for themselves. They are applied only by the parties that decided not to be a part of the project; it cannot apply on these States. Exceptions : they providing for obligations for third states : art 35/36/37 of the Vianna convention ❑ Pacta sunt servanda (Article 26 VCLT) ❑ Good faith (Articles 18, 26, 31 VCLT) Example of climate change. Creating strategies for the reduction of pollution, for example everything that doesn't go in the same direction is against political of good faith because they are not faithful. Articles 1, 2, 3, 4, 5 , 29 of the VCLT→the scope of application of the VCLT Article 28 on the non-retroactivity of treaties Exception : extraterritoriality -\> Human rights -\> beyond the physical territory of state Minimum criteria to identify a treaty: \(1) written \(2) between States \(3) governed by international law \(4) it must be intended to create legal obligations [Formation of treaties -- the phases : ] 1\. Negotiation (Article 7 VCLT) -\> is a discussion leading to an agreement, written from the beginning of the preamble with some article with precise terms to make reference to another treaty. 2\. Adoption of the text of a treaty (Article 9 VCLT) 3\. Authentication (Article 10 VCLT) 4\. Consent to be bound (Articles 2(1)(b), 11 + 12-16 VCLT)→signature, ratification, accession\... 5\. Entry into force (Article 24 VCLT) 6\. Deposit (Articles 76-77 VCLT) 7\. Registration & Publication (Article 80 VCLT and Article 102 UN Charter) [Reservations to treaties : ] Definition: Article 2(1)(d) VCLT → different from "interpretative declarations" and "derogations" Function: facilitate the widespread acceptance of multilateral treaties 1951 ICJ Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Article 19 VCLT→difference between permissible and non-permissible reservations Reservations must be expressed, written, justified, notified→to allow acceptance or objection (Articles 20(5) and 23 VCLT) The Convention on Offences relating to Cultural Property of the Council of Europe *(https://www.coe.int/en/web/conventions /full-list/-/conventions/treaty/221)* **What is the Council of Europe (CoE)?** [Convention of the Council of Europe on Offences relating to Cultural Property : ] - - - - [Conventions Difference between customary rules and treaty rules:] customary rules are binding when practice (objective element) and intention (subjective element) are separately proved treaty rules are binding because of the express consent of the States [Conventions Relationship between treaties and customary law→coexistence : ] Treaties may give rise to rules of customary law Treaties may reflect and codify rules of customary law [Conventions Relationship between treaties and customary law→conflict : ] Lex specialis derogat lex generalis Lex superior derogat lex inferiori [3. General principles ] The function of general principles: to fill gaps ; they serve to avoid the problem of non liquet ( = not clear) , the argument that a court cannot decide a matter because there is no law on the subject. General principles may serve to avoid the problem of non liquet: the argument that a court cannot decide a matter because there is no law on the subject This is a reserve source! [The case law of the ICJ shows that there are:] \(a) principles inferred from national systems o Examples: obligation to make reparation ensuing from a breach; res judicata; respect for acquired rights; admissibility of circumstantial evidence... \(b) principles inferred from the nature of the international community and which have no counterpart in national systems o Examples: freedom of maritime navigation, good faith, consent in international adjudication, self- determination... →General principles may become customary law rules if they fulfill the objective and subjective elements are proved. [ In reality, general principles have a very limited relevance as a source of international law:] - - - [4. Judicial decisions] Article 38(1)(d) ICJ Statute: "Subject to Article 59, judicial decisions" constitute "subsidiary means for the determination of rules of law" Article 59 ICJ Statute: "The decision of the Court has no binding force except between the parties and in respect of that particular case" In theory, no authority of precedent in IL In practice, the ICJ and other international tribunals follow previous decisions, in the interest of judicial consistency and juridical certainty given the "chaotic" development of international law Article 38(1)(d) is not confined to the decisions of international courts, it also covers the decisions of domestic courts Domestic courts are State organs and therefore express the position of a State with respect to customary law→objective and subjective elements [5. Other sources of international law] \(A) The secondary law of International Organizations (IOs)→not listed in Article 38 ICJ Statute Difference between primary law (founding treaties concluded by States) and secondary law (the acts adopted by IOs) Examples of secondary law: resolutions, declarations, recommendations, regulations, directives\... \(B) "Soft law" - as opposed to "hard law" → Soft law is not a formal source of IL →Soft law is not considered as binding, but is considered as something more than mere political gestures [Examples of soft law rules:] - - - →have influenced the development of IL →evidence of existing customary law ❑ Universal Declaration on Human Rights (1948) ❑ Declaration on the Rights of Indigenous Peoples (2007) ❑ Declaration on Human Rights Education and Training (2011) ❑ Declaration for Refugees and Migrants (2016) ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996): "General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of opinio juris" (para. 70) [→Soft law entails some legal effects:] - - - [To conclude:] As a rule there is no hierarchy among sources in IL Exceptions to the above : - - [II/ The implementation of IL] Although the existence of a IL rule represents an important step, what matters is the implementation (or enforcement, or adaptation) of such a rule at the domestic level Implementation is the "domestication" of IL rules No legal system is effective if its norms are not enforced Article 26 VCLT: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith" (pacta sunt servanda principle) Article 27 VCLT: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty"→ the logic of the ratification process Principle of the external and internal harmony Problem: international means and procedures for the implementation of IL are weak / insufficient The State is the subject responsible for the implementation of IL: ensure compliance with and avoid breaches of IL [IL leaves it to each State to determine how it will implement its international commitments:] - - Can encompass national policies, domestic legislation, administrative norms, judicial decisions, educational campaigns\... [ The implementation of treaties (following ratification) generally takes one of two forms:] - - - - Distinction between self-executing and non self-executing treaties / norms [ Not self-executing treaties / norms:] - - - **The practice of International Law in some selected areas** [I/ The prohibition of the use (or the threat) of force and the right of self- defense] The UN Charter created a system consisting of 3 fundamental pillars: 1\) the use of force is prohibited → Article 2(4) UN Charter → with the UN Charter "war" ceased to be an institution of international law. 2\) only the use of force in self-defense is allowed → Article 51 UN Charter → exception. 3\) the use of force can only be authorized, monitored, and assessed by the UN Security Council → Chapter VII UN Charter 1\. The unilateral use of force is prohibited. This is a customary rule that has been codified in a number of treaties (the UN Charter) and confirmed by the ICJ with various judgments and advisory opinions→ Advisory Opinion of 2004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Article 2(4) of the UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Article 2(4) UN Charter contains a rule of jus cogens that therefore it is binding on all States. Article 2(4) UN Charter does not use the term "war" but the term "force" in order to cover any armed action in which violence is employed and which fall short of the technical requirements of the state of war → declaration of war. Article 2(4) UN Charter introduced the prohibition of "threat" of force. **What is a threat of force in PIL?** Movement or concentration of armed forces at the border. Violation of airspace and territorial waters Oral or written threats of force. Accumulation of events → the ICJ excluded that the increase in armaments alone constituted a threat (Nicaragua v. US case, 1986) According to Article 2(4) the prohibition of the use of force entails an armed attack directed by one State against "the territorial integrity or political independence" of another State. However, the ICJ stated that no use of force is permissible, irrespective of its purpose (Corfu case, 1949) Article 2(4) prohibits the threat or use of force between States "in their international relations" → the prohibition does not cover situations whereby a State takes measures to maintain order within its jurisdiction (domestic situations) → Article 2(7) UN Charter. 2\. Only the use of force in self-defense is allowed. Article 51 of the UN Charter: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security". Articles 2(4) and 51 are two segments of the same rule. The "inherent right" to use force in self-defense is part of customary law (ICJ, Wall Advisory Opinion, 2004; ICJ, Nicaragua case, 1986) Obligation to report to the UN SC → not to ask permission or authorization. The ICJ has identified many conditions for the legitimate resort to self-defense by a State [A. The State seeking to resort to force in self-defense must prove that it has been the victim of a deliberate and intentional armed attack by another State.] →On the burden of proof see Oil Platforms (Iran v. United States), ICJ Judgment 2003 →Article 51 does not apply to internal armed conflicts → The Wall ICJ Advisory Opinion 2004 [B. Respect for the criteria of proportionality and necessity] Article 51 only allows measures which are proportional to the armed attack and necessary to respond to it. The Caroline incident (1837): there has to exist "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation". Not only were such conditions necessary before self-defense became legitimate, but the action taken in pursuance of it must not be unreasonable or excessive, "since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it". [C. Armed attack against State sovereignty → the attack must target the territory or State assets:] 1\. Turkish invasion of Cyprus (1974) 2\. Attack and occupation of the US embassy in Tehran in 1979 attributable to Iran → illegitimate use of force which allowed self-defence (ICJ, United States Diplomatic and Consular Staff in Tehran (United States v. Iran case, 1980) 3\. Russian invasion of Ukraine (2014, 2022) →In the Nicaragua case, the ICJ did not accept that the right of self-defense could be exercised against the third State that provides assistance to rebels in the form of the provision of weapons or logistical or other support, although this form of assistance could amount to unlawful intervention in the internal or external affairs of the State. [D. The time of the lawful reaction] - - - [E. The types and modalities of an attack.] An attack can be performed or threatened by regular armed forces → direct aggression An attack can be performed also by troops (armed bands or mercenaries) not belonging to the regular army of a State, though acting under directives of the latter → indirect aggression → the State sending such troops is liable and can become the target of self- defence (ICJ, Nicaragua case, 1986, para. 195; Congo v. Uganda, 2005, paras. 146-147) Problems arise when an armed attack is committed by a terrorist group There is no definition of terrorism, however, it can be asserted, for the purposes of this class, that "terrorism" entails the perpetration of "unauthorized" violence against civilians by a group that is not supported by any State (non- State actor) Under IL governments hold the monopoly over the "lawful" use of force 1\. The terrorist "characterization" is employed politically by governments to denote armed groups that seek self-determination and not the execution of terrorist acts: - - - Revolution" is not and cannot be prohibited by international law Peoples have a natural right to use all available means, including force, to protect themselves against gross oppression and bad governance→ the right to self-determination A central difference between international terrorism and self-determination can be identified, depending on whether or not non-state groups use violence against civilians 2\. Is it possible to act in self-defense against a terrorist group in the territory of the State where they are located? Terrorism is a problematic issue because: - - - - - See Resolutions 1368 (2001) and 1373 (2001) adopted by the UN Security Council after the 11 September 2001 attacks upon the World Trade Center in New York [These binding decisions declared that:] - - [F. A State can use force abroad to protect its own nationals only if:] - - - - If the above conditions are fulfilled there is no breach of Article 2(4) UN Charter If these conditions are not fulfilled there is abuse of the right to self-defense [G. Collective self-defence under Article 51 UN Charter: the right of one or more States to act in favour of a third State that has been the subject of an armed attack] The right belongs to customary international law The lawful exercise of collective self- defence requires both a prior declaration and a request by the victim State Examples: - - - Article 51 does not apply to internal armed conflict. Therefore, the application of Article 51 against non-State armed groups is unclear → the practice of States and the opinion of scholars are ambiguous and divergent [II/ The duty to rescue] The Carola Rackete decision (Italian Court of Cassation, 20 February 2020, No. 6626) The duty to rescue is set out in the UN Convention on the law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), the International Convention on Search and Rescue (SAR), and in customary international law [III/ Immunity of the State] Definition: it is a basic principle of international law that the courts of one sovereign State do not adjudicate on the conduct of another State → every State is entitled to immunity from the processes of the forum State →Diplomatic immunity is not covered. [The principle of State immunity is a rule of customary international law and derives from two fundamental principles of IL:] o sovereign equality of States o ban on intervention in internal or external affairs of other States The principle of State immunity (par in parem non habet jurisdictionem) seeks to ensure the peaceful relation between States. Example 1: Luigi Ferrini v. Germany (2004) // Example 2: Maria Altmann v. Republic of Austria // Example 3: Class action against France et SNCF in the US (2000-2006)→US- France "Agreement on Compensation for Certain Victims of Holocaust- Related Deportation from France Who Are Not Covered by French Programs" of 2015 The principle of State immunity entails that a State enjoys immunity in respect of its acts and its properties. Difference between immunity from jurisdiction and execution (ICJ, Germany v. Italy, 2012, paras. 113-116) [Shift from "absolute" to "relative" (or "restrictive") immunity:] - - - [Difference between:] - - **How to distinguish acts jure imperii from acts jure gestionis?** Two criteria: the (1) nature of the activity and / or the (2) purpose of the activity [Examples:] Fincantieri v. Iraq (1994) (Italy) Republic of Iraq v Armamenti e Aerospazio Spa and others (2015) Holubek v. United States (1961) (Austria) EmpireofIran(1963)(Germany) Argentina V.Weltover(1992)(UnitedStates) \[\...\] Contextual criterion (3): judges take account of both the purpose and nature of the activity → Article 2(2) of the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004: "In determining whether a contract or transaction is a 'commercial transaction' \[\...\] reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction" The defense of immunity can be raised before any domestic court in respect of criminal, civil, administrative or any other proceedings State Immunity can always be waived. It represents an exception to the rule that States have absolute jurisdiction within their own territory. The State whose courts do not respect the immunity of a foreign State can be held responsible under international law. Can a State invoke the defense of immunity when sued before the courts of another **State for the civil consequences of serious human rights violations?** **YES but not always ok** Jurisdictional Immunities of the State (Germany v. Italy), Judgment of the International Court of Justice of 3 February 2012 After this judgement, Italy decided to obey this decision, which is binding (art. 44 or 34 of the UN charter) so in January 2013 adopted a law about the ratification of the UN convention on jurisdictional Immunities of States and their Property of 2004. Then the decisions adopted from 2012 and 2014 went in the opposite way of the case ferrini (cannot use immunity of Germany before Italian tribunals and those victims can ask for damages against Germany). The ICJ says that they cannot ignore the immunity of Germany. The disobedience due to the implementation of the ICJ judgement in Italy. In 2014, an individual brought a case in front of Florence Tribunal (one from a concentration camp and the another descendant of a person killed there). The tribunal said that the Italian constitution says that individuals have rights to access to justice, fair trial, equality before law so the immunity doesn't prevail according to that. The article 10 of the Italian constitutions says that every customary norm established, recognized by the ICJ, is automatically accepted in the Italian legal order (no need of the parliament to act). The Florence tribunal pressured the constitutionality of state immunity that obliged the tribunal itself to not take the case against Germany. The court said that the question was unfounded. This question is not founded because that rule cannot enter the Italian legal system. There is no clash between the customary law of immunity and individual rights. The rule of immunity was not put on the table, only the individual rights were debated. The article 10 is only compatible with those complaining with individual rights with the Judgement. The situation is still problematic because many decisions confirm that the immunity state can be denied with the same kind of problems. Individuals still go to the court and ask for damages to Germany. 2015 : immunity for Iran. American civilians that survived the terrorist attack in Israel 20 years ago, it shows that Iran was behind the commission of the attack. There was a decision in the USA in the sense of the victim. Italy has a jurisprudence authorizing that, the victims decided to come to Italy and tried to enforce the judgement. They try to find assets belonging to Iran in Italy to make the money in favor of the American victims. The Americans couldn't have the chance to have the damages because their immunity is recognized even for Iran. 2015 : immunity for Serbia, during the Balkan wars, a helicopter held a sign of the UN, they couldn't attack it but did it and a French journalist died. The victims had to overcome the same obstacle. When the responsible entity is a state, the relatives tried in France to obtain a judgement against the responsible state but the jurisprudence there comply with the ICJ judgement so went to Italy to have the enforcement of the judgement, trying to and assets belonging to the Serbian state. Judgement Germany Italy : art. 8 + 11 + 14 Application of the ICJ of 29 April 2022 Article 43 : immediate response of Italy of the case Germany has been complaining for many months 43 (1) There is a new institution, a fund by the Italian state Who can access to the found = only claimants who had a final judgement delivered by Italian courts entitled to compensation. So the The Tribunal of Roma agreed there was a clash between art. 43(3) and individual rights in the constitution. Also the tribunal declared that there is a clash of the art. 43 (3) and the constitutional judgement 238/2014 because probably the decree allows something that the constitutional court denied. Germany was satisfied. The court said this proceeding offered a reasonable balance because the proceeding would be uncertain about the amount of money. Germany dropped the request for provisional measures. Germany is waiting for a declaration of the court ICJ that Italy violated the immunity principle. is what we say in 2012 valid or not (no exception to state immunity, can't limit or exclude immunity in case of HR violations) [IV/ prohibition of torture] The case of Giulio Regeni Egyptian authority though he was a spy so he was under the control some weeks and was kidnapped on January 2016 and found 10 days later with signs of torture everywhere on his body. Egyptian authorities said he was a victim of a robber then that he was part of a gang and killed 5... He was just a victim of a normal criminality or himself responsible for his death. But the signs of tortue = not just a simple victim of robbery. Negotiation Italy with the Egyptian authority to have a response to the violation of the convention against torture of 1984 and customary international law. State should prevent acts of this type, intervein to investigate to prosecute those responsible for the commission of the crimes. States are those making rules and that should comply, Egypt ratified the convention. The possible action by Italy (started by the family of giulio regeni) - In 2016, the Italian ambassador was come back to home, stop diplomatic and commercial relations but these states are good commercial partners so continued send weapons to the The Egyptian government failed to fulfil its role to offer diplomatic protection to the family. - Germany Italy relation? A lawyer started legal action in Italy and found a legal ground to start a proceeding in Italy? Italian law authorized Italian judges, the victim is Italian so action cannot start in Egypt because proceedings would be unfair but there is a legal entity in Italy that could seat as a defendant : the Egyptian embassy. They found 4 names, those who kidnaped and involved in the torture and the death. These persons would be declared responsible and because are part of the Egyptian state, the state would be involved as the entity behind the engines as the entity responsible of not having prevented the act of torture. The individuals can escape the condemnation (not go to Italy) but the state cannot escape. However, Egypt said it had immunity. But Italy said that based on its decision of 2014 that immunity doesn't work here. Definition of immunity : protection or exemption from something, especially an obligation or penalty. **[Exam : ]** **There are 5 questions, answer 2 or 3 questions and write an essay about it.**Exam : 2 questions among 5 and right a response \+ BC2 20 questions