Introduction to International Law Lecture Notes 2024 PDF

INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Week 1: Introduction to International Law: Sources & Subjects Dr Yulia Ioffe INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Plan for today Welcome and introduction 11:05-11:15 Asse...

INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Week 1: Introduction to International Law: Sources & Subjects Dr Yulia Ioffe INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Plan for today Welcome and introduction 11:05-11:15 Assessment overview 11:15-11:25 Q&A 11:25-11:35 Introduction to international law 11:35-11:50 Break 11:50-12:00 Subjects of international law 12:00-12:30 Sources of international law 12:30-13:00 INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Learning outcomes On successful completion of this module, you will be able to: A) Subject-Specific Knowledge 1. Demonstrate knowledge of key concepts, documents, cases, and actors in international law relating to humanitarian action 2. Discuss key debates and dilemmas in international law relating to humanitarian action 3. Explain how international law shapes humanitarian action B) Intellectual, Academic and Research Skills 1. Critically engage with sources of international law (such as treaties) and academic literature on international law in the humanitarian context 2. Develop your research skills through primary and secondary source analysis 3. Apply knowledge of international law to current humanitarian contexts and scenarios C) Practical and Transferable Skills 1. Present complex arguments both in written form and oral form 2. Identify issues which require researching, as wells as evaluate accurate, current, and relevant information from a range of appropriate sources, including primary legal sources 3. Work collaboratively in small groups as well as independently 4. Engage confidently in debates on contested topics. INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Structure of the module Ten weeks of face-to-face teaching (except this Friday seminar which is online) Reading week: 4-8 November 2-hour lecture (on Tuesdays) + 1-hour seminar a week (on Tuesdays) 60 hours of independent study -> essential readings usually take up to 3 hours per week INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Structure of the module Topics covered: W1 Introduction to International Law: Sources & Subjects W2 Treaties, Treaty Interpretation, Treaty Interpreters W3 Use of Force W4 International Humanitarian Law W5 International Human Rights Law W6 International Criminal Law W7 International Refugee & Migration Law W8 Immunity & Jurisdiction W9 Responsibility of States & International Organisations under International Law W10 Revision INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Teaching assistant—Ms. Franka Pues A doctoral candidate in International Criminal Law and Public International Law at Dickson Poon School of Law https://www.kcl.ac.uk/people/franka-pues INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Attendance Face-to-face lectures and seminars No online option No recording; no lecturecast INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Office hours Drop-in hours: Monday 16:00-17:00 (please call me on Teams or go to the room mentioned on Moodle) Module-related questions—through Moodle Personal questions/concerns—through email: [email protected] I will be answering all messages and emails from students on Mondays 16:00-17:00 & on Wednesdays 11:00-12:00 INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Readings before the lecture INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Readings before the lecture INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Readings before the seminar INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Readings before the seminar INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Further resources INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Textbooks in international law Malcolm Evans, International Law (OUP 2018) Malcolm Shaw, International Law (CUP 2021) Martin Dixon, Textbook on International Law (OUP 2013) James Crawford, Brownlie’s Principles of Public International Law (OUP 2019) Jan Klabbers, International Law (CUP 2021) Gleider Hernandez, International Law (OUP 2022) Paola Gaeta et al, Cassese’s International Law (OUP 2020) Vaughan Lowe, International Law: A Very Short Introduction (OUP 2015) Vaughan Lowe, International Law (OUP 2015) Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994) INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Journals Leading journals for recent articles and case notes: AJIL -American Journal of International Law BYIL -British Yearbook of International Law CLJ -Cambridge Law Journal EJIL -European Journal of International Law ICLQ -International & Comparative Law Quarterly ILM -International Legal Materials ILR -International Law Reports VJIL -Virginia Journal of International Law IRLJ – International Refugee Law Journal HRLR – Human Rights Law Review INSTITUTE FOR RISK AND DISASTER REDUCTION UCL International law blogs EJIL:Talk! http://www.ejiltalk.org Opinio Juris: http://www.opiniojuris.org Just Security: https://www.justsecurity.org Lawfare: https://www.lawfareblog.com Verfassungsblog https://verfassungsblog.de/ Völkerrechtsblog https://voelkerrechtsblog.org/ AfricLaw: https://africlaw.com Oxford Human Rights Hub blog: https://ohrh.law.ox.ac.uk/category/blog/ Refugee Law Initiative blog: https://rli.blogs.sas.ac.uk Introduction to Reading Legal Texts Adapting to Complex Legal Materials Complex Structure: Legal texts are often organised with detailed sections, case law references, and footnotes that require precise reading. Specialised Language: Terms in legal documents carry specific meanings that differ from everyday language, demanding careful interpretation. Critical Reading Skills: Students must approach legal texts with an analytical mindset, focusing on arguments, legal principles, and supporting evidence. Photo by Priscilla Du Preez Understanding the Structure of Legal Texts Chapters, Case Law, and Footnotes Chapters and Sections: Legal textbooks are divided into chapters covering broad topics and sub-sections that delve into specific legal doctrines. Case Law References: Court cases are often cited to illustrate legal principles. Focus on the facts, issues, and reasoning behind decisions. Footnotes and Citations: Footnotes provide essential legal references and clarify judicial reasoning. They often signal the legal sources of arguments. Photo by Mikhail Pavstyuk The Importance of Footnotes and Citations Clarifying Legal Arguments Clarifying Judicial Reasoning: Footnotes explain complex legal reasoning and provide deeper context for legal arguments. Citing Legal Sources: Citations reference important cases, statutes, and scholarly works that form the foundation of legal decisions. Building Legal Credibility: Accurate citations demonstrate thorough research and lend credibility to legal writing and arguments. Photo by Mel Poole Decoding Legal Language Understanding Complex Terms and Latin Phrases Specialised Legal Terminology: Many legal terms have meanings distinct from everyday language. Use legal dictionaries (links in ‘Terms & Definitions’ documents on Moodle) to decode complex words. Latin Phrases: Terms like *opinion juris* (opinion of law or necessity) are often used in legal texts. Keep a reference handy for unfamiliar phrases. Breaking Down Complex Sentences: Legal sentences can be long and intricate. Focus on the main idea, then identify secondary clauses for Photo by Romain Vignes clarity. Recognising Legal Arguments and Reasoning Building from Principles to Precedents Deductive Reasoning: Legal arguments often start from general rules and apply them to specific cases. Focus on how principles are translated into case outcomes. Use of Precedents: Past judicial decisions form the backbone of legal reasoning. Understanding how cases are used as precedents is key. Acknowledging Counterarguments: Good legal arguments address opposing views. Pay attention to how alternative interpretations are dealt with in the text. Photo by Jeremy Mura INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Summative assessment 1) Centrally-Managed Written Exam (70% module mark): 3 hours. Term 3. This is a closed book and in-person exam. Students are required to answer 3 questions out 9 (2 problem-based questions; 1 essay question). 2) Three In-Class MCQ Quizzes (30% module mark): 10-15 minutes each: 15 October 2024 (covers Week 1-2 material); 12 November 2024 (covers Week 3-5 material); 3 December 2024 (covers Week 6-8 material). Closed book and in-person at the start of the lecture. The MCQ Quizzes will assess students’ knowledge of the basic materials covered in the preceding weeks. INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Formative assessment (does not contribute to the final mark) 1) Mock exam (one question): one problem-based question (posted below) will be marked and feedback will be provided. Deadline: 1 November. See on Moodle. 2) Model answer for an essay question: A model answer to an essay question will be discussed in one of the seminars. 3) Examples of questions for the closed-book exam: Students can practice answering these questions in their own time. These questions will not be marked; no feedback will be provided. See on Moodle. 4) Problem questions & essay questions practice: Students will practice IRAC method and practice answering problem questions & essay questions in seminars in Weeks 2-9. 5) Three Practice MCQ Quizzes [that you take in your own time] Each MCQ Quiz includes around 15 MCQ questions. First Practice MCQ Quiz is already released. Second & Third Practice MCQ Quizzes will be released in Week 1. The number of attempts to practice MCQ questions is unlimited. INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Plagiarism UCL Plagiarism Guidelines: https://www.ucl.ac.uk/ioe-writing-centre/reference-effectively-avoid-plagiarism/plagiarism- guidelines If you do not acknowledge the work or ideas of others (this includes colluding), you could be penalised for Academic Misconduct, which is defined as any action or attempted action that may result in you obtaining an unfair academic advantage. DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL What is law? Law is a system of rules, usually made and enforced by a government, that is used to order the way in which a society behaves Through law, rules are established on: - what is permissible and what is prohibited; - what rights, duties, and obligations exist for participants in those systems; - and the place of actors or officials such as legislatures, courts, and the police, with powers to change, interpret, or enforce the rules of the system Law has played an important role in human societies DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL What is law? John Locke: ‘The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom’ DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL What is morality? Morality is a collection of principles that allow people to live together in communities Both law and morality serve to channel our behaviour Law accomplishes this primarily through the threat of sanctions if we disobey legal rules Morality too involves incentives: bad acts may result in guilt and disapprobation, and good acts may result in virtuous feelings and praise DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL What is morality? Immanuel Kant: ‘In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so’ DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Law and Morality DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Where law comes from? Natural law and positive law are rival views about what law is and what its relation to justice/morality is Natural law holds that there are universal moral standards that are inherent in humankind throughout all time, and these standards should form the basis of a just society. It runs on the idea of perfect law based on equity, fairness, and reason. By which we can measure all man-made laws. And to which they must (as closely as possible) conform Positive law—what the authorised law is, rather than what the law ought to be. It is the law as applied by the courts, the actual law ‘properly so called’. It does not deny moral considerations connected with the law but insists upon the separation of moral issues as non-legal in the sense that the quality of law is derived from none of these considerations but from some other objective criteria. Hence it asserts analytical separation of is and ought. In this it rejects the moral claims of natural law theory DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Domestic (municipal) law v international law International law may be defined as the standard of conduct, at a given time for states and other entities such as international organizations, companies, individuals on international level International law—rather than regulating the behaviour of individuals in their relations with one another, it is usually portrayed as a legal framework to govern the relations between ‘states’ (the organized political entities which are the primary subjects of international law) Domestic (municipal law) is the law applying within states, as opposed to international law, the law applying between states and other subjects of international law. INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Types of domestic (municipal) legal systems Civil law— a system of law predominant on the European continent, historically influenced by that of ancient Rome. In this system a court makes decisions based on a set of recorded laws rather than on the decision of a judge or jury Common law—a system of law based on customs and court decisions rather than on written laws made by a parliament. Common law forms the basis of the legal system in the UK, US, and various other countries Religious legal system—a system where the law emanates from texts or traditions within a given religious tradition. Many Islamic nations have legal systems based in whole or in part on the Quran Customary law systems are based on patterns of behaviour (or customs) that have come to be accepted as legal requirements or rules of conduct within a particular country. The laws of customary legal systems are usually unwritten and are often dispensed by elders, passed down through generations. Customary law practices often can be found in mixed legal system jurisdictions, where they've combined with civil or common law Mixed legal systems refer to legal systems where two or more of the above legal systems work together. E.g. the legal system of South Africa is a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL How is international law different? International law is unlike most domestic (municipal) legal systems as it is decentralized. In domestic (municipal) legal systems there is usually a single entity recognized as sovereign. International law recognizes multiple and equal sovereign entities, states, and purports to regulate relations between them With no legislature that stands supreme over states, international law therefore remains a horizontal legal order with no superior authority. This means that states must come together to create new legal obligations, such as through treaties or through customary international law. DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Is international law – law? Louis Henkin: ‘[a]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’ DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Is international law – law? The main criticism is that international law is not law because it is not a system: it has no legislature, judiciary system, enforcement Less known are the mundane functions that international law facilitates: the delivery of international postage, the stability of the world’s telecommunications infrastructure, and the delivery of goods and services across the globe DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Examples of international law in the media? DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Sovereign equality Sovereign equality is the international equivalent of the principle that men are born and remain free and equal in rights In international law, this principle is reflected in Article 2 of the UN Charter, which records that the UN ‘is based on the principle of the sovereign equality of all of its Members’ DEPARTMENT FOR RISK AND DISASTER REDUCTION UCL Consent and reciprocity Under the classical view of international law, the binding nature of international law obligations for states is based on consent. Consent entails that only those obligations to which a state has committed itself will be considered binding An important consideration in this regard is the principle of reciprocity, which means simply that States consent to limit their freedom of action for mutual benefit Reciprocity a pragmatic policy to protect a State’s interests on the basis of law INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Law-making and sources Difficulties in explaining the sources of international law are compounded by the fact that, the authority to develop international law is generally regarded as deriving from the consent of States This is not to say that all international law is made by states; states frequently delegate law-making authority to specific bodies or organs, and they may acquiesce or consent to a legal rule which originated in a non-state institution NGOs, international organisations, and individuals often contribute to creating sources of international law INSTITUTE FOR RISK AND DISASTER REDUCTION UCL ‘Traditional’ sources of international law Three sources: treaties, custom, and general principles Technically, Article 38 of the Statute of the International Court of Justice (ICJ Statute) only lays out the categories of sources to be applied by the ICJ: applicable law Yet, in practice, Article 38 has long been regarded as the authoritative, complete statement of the sources of international law INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Article 38(1) of the ICJ Statute 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; 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. INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Is there a hierarchy of sources in international law? Primary view: no hierarchy between the sources; there is functional equivalence of sources There is criticism of this view that acknowledges ‘informal hierarchies’ among the sources: adjudicators and legal scholars have historically expressed clear preferences for treaties Jus cogens (or a peremptory rule of general international law)—a rule of international law which is peremptory in the sense that it is binding irrespective of the will of individual states parties (i.e. the party cannot opt out of this rule) INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Custom Customary international law consists of rules that come from ‘a general practice accepted as law’ and exist independent of treaty law. Unlike treaty law, which is only applicable to those states that have signed and ratified a particular agreement, customary law is binding upon all states, regardless of whether they are party to a treaty Unlike treaty law, customary international law is limited in that it is not codified in a clear and accessible format, and the rules are generally less specific than those written down in a treaty Examples of customary international law are the prohibition on the arbitrary deprivation of life, the prohibition on torture, and the rule that civilians and civilian objects cannot be the subject of direct attacks during armed conflict INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Two elements of custom Custom involves two fundamental elements: (1) the actual practice of states and (2) the acceptance by states of that practice as law (traditionally known as opinio juris sive necessitatis, ‘an opinion as to law or necessity’) The actual practice of states (the material element) covers various elements, including the duration, consistency, repetition, and generality of a particular kind of behaviour by states. All such elements are relevant in determining whether a practice may form the basis of a binding international custom INSTITUTE FOR RISK AND DISASTER REDUCTION UCL What intensity of practice of states is required? A long-standing debate between international lawyers concerns the duration, consistency, and generality of practice and opinio juris required for a new customary rule to crystallize In Anglo-Norwegian Fisheries, the ICJ said that a small degree of inconsistency does not prevent the emergence of a customary rule when it is outweighed by a large amount of consistent practice (Similar reasoning has been adopted in other cases, Nicaragua (Merits), para 186) ‘Instant custom’—a custom that occur in a relatively short period of time or instantaneously. This can be due to the urgency of coping with new developments of technology, e.g. the rule on the freedom of extra-atmospheric space The rapid pace of technological and scientific change in areas such as global health law (especially the Covid-19 pandemic) or climate change, or in cyberspace, could give rise to more ‘instant custom’ INSTITUTE FOR RISK AND DISASTER REDUCTION UCL ‘Specially affected state’ The particular relevance of certain states in the formation of a customary rule was recognized by the ICJ in North Sea Continental Shelf, where the Court noted that ‘State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform’ (para 74) A classic example of a ‘specially affected state’ would be that the practice of states with actual coastlines, and not that of landlocked States, would be relevant in the delimitation of maritime boundaries INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Evidence of ‘acceptance as law’ (opinio juris) The second element for custom to crystallize, opinio juris, suggests a psychological element on the part of the state as to its opinion on the legal status of a rule A challenge in identifying opinio juris is the difficulty in identifying the relevant materials to infer its existence, as these are similar to those for state practice: legislation, treaties, acts of the government, and judicial decisions However, since opinio juris is a matter of ascertaining the belief of a state, a broad range of additional materials can also be invoked, ranging from guidance to state officials in the form of military manuals or diplomatic guidelines, pleadings before international courts, correspondence from one state to another state or to a private actor, and even the position taken by a state within an international organization The ICJ has occasionally referred to certain General Assembly resolutions to confirm the existence of opinio juris, focusing on the content of the resolution in question and the conditions for its adoption INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Persistent objection The persistent objector doctrine provides that if a state persistently and consistently objects to a newly emerging norm of customary international law during the period of the ‘formation’ of that norm. The objecting state is exempt from the customary norm in question once it has crystallized and for so long as the objection is maintained The persistent objector doctrine, however, does not apply to jus cogens norms even if the requirements for the persistent objector doctrine are met, as no derogations are permitted from peremptory norms Criticism of the persistent objector doctrine: mainly that it favours the interests of the Global North B.S. Chimni: ‘The rule of persistent objector was developed to safeguard the concerns of western capitalist powers after the beginning of the Cold War’ INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Local/regional/particular custom International law provides for rules of customary law that apply only exceptionally to a subset of states: known sometimes as ‘local’ or ‘regional’ or ‘particular’ custom In the ICJ’s Asylum judgment, Colombia had alleged that specific practices of diplomatic asylum existed which were peculiar to Latin American States, and binding on Peru. Recognizing that local custom could exist in principle, the Court concluded that a ‘party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party’, and held that Colombia had failed to prove that any such custom was binding on Peru Other attempts to assert norms of regional custom at the ICJ have been unsuccessful It has been claimed that certain obligations in the European Convention on Human Rights have become regional customary law INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Treaties Treaties, also known interchangeably as ‘conventions’, ‘pacts’, ‘agreements’, ‘charters’, and ‘covenants’, are a formal instrument through which states and international organisations can agree that certain obligations will be binding between them A convenient definition is provided in Article 2(1) VCLT: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ Latin maxim pacta tertiis nec nocent nec prosunt (‘a treaty binds the parties only, and not a third’) Overlap between treaties and other sources of international law: what happens if a treaty comes into being which covers the same ground as a customary rule? More details in Week 2 INSTITUTE FOR RISK AND DISASTER REDUCTION UCL General principles recognized by ‘civilized nations’ Article 38(1)(c) of the ICJ provides that ‘general principles of law recognized by civilized nations’ also constitute a source of international law Colonial language ‘civilized nations’ was condemned in the recent work of the International Law Commission as a relic of outdated Western European chauvinism Today, the term is reconstrued as a term of art to suggest that a principle should exist across a broad range of legal systems, traditions, and regions, but should be taken to mean states The phrase ‘general principles of law’ refers to either general principles of international law or general principles of national law or both Examples: res judicata, good faith, impartiality of judges, access to asylum, non-punishment for irregular entry or stay of vulnerable migrants Difficulties in methodology INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subsidiary means for the determination of rules of law (1) judicial decisions and (2) teachings of the most qualified publicists Not sources of international law in themselves; they are regarded as evidence of the state of the law INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Judicial decisions Judicial decisions include not only the decisions of the ICJ, but also extend to international arbitral awards, the judgments of other international tribunals such as the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), regional human rights courts, and the decisions of the various panels constituted under the World Trade Organization (WTO) No hierarchy of international courts exists But the formally subsidiary character of judicial decisions significantly understates their actual influence and authority, especially those of the ICJ, references to which are abundant throughout international legal literature. Reference to judicial decisions also applies to the decisions of municipal courts INSTITUTE FOR RISK AND DISASTER REDUCTION UCL ‘Writings of the most eminent publicists’ It seems to be generally accepted that the influence of writers on international law was of great importance in the classical days of the subject (before 1945) Potential split: civil law systems and common law systems frequent reference to writers in separate and dissenting opinions is sometimes cited as evidence of this Reasons why the ICJ does not refer to publicists: 1) difficulty in saying who are the most highly qualified publicists; 2) the main authors may still be seen to come from a handful of countries; 3) the citation of individual authors may not sit well with the collegiate drafting of the Court’s judgments A broader and important function played by the most eminent of the writers (who were frequently also practitioners) to give shape and order international law. E.g. Judge James Crawford, Professor at Cambridge, Member of the ILC INSTITUTE FOR RISK AND DISASTER REDUCTION UCL UN Security Council Resolutions Some decisions of the Security Council taken under Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) are of a normative nature (binding on state parties) since they regulate the relations amongst their addressees; provide for the establishment of institutions, such as international criminal courts (e.g. ICTR and ICTY); and even create a regulatory order Although not adopted under Chapter VII of the Charter, the nine resolutions following Resolution 1325 (2000) have become known as the Women, Peace and Security agenda, which forms ‘part of the international tradition of human rights’. These resolutions contribute to state and institutional practice in the field of human rights INSTITUTE FOR RISK AND DISASTER REDUCTION UCL ‘Soft law’ Unlike ‘hard law’, which represents legally binding rules, ‘soft law’ is the name given to the body of standards, commitments, declarations, policy guidelines, codes of conduct, and other instruments which do not impose legally binding obligations on States, or any other legal actors for that matter Examples of ‘soft law’ may be resolutions of the UN General Assembly or the Human Rights Council Because of international law’s decentralized structure, soft law instruments have the potential to contribute to the development of new ‘hard’ law Indeed, the foundational document of international human rights law— the Universal Declaration of Human Rights —is in the form of a General Assembly resolution INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Unilateral acts Unilateral act is a formal declaration formulated by a state with the intent to produce obligations under international law In defined circumstances, the unilateral acts of a State are capable of binding that State To be binding, the unilateral act must be accepted, recognized, or somehow acknowledged by another State. If it is met with absolutely no reaction, it cannot be legally relevant Nuclear Tests case: after protests from Australia and New Zealand following atmospheric nuclear testing in French Polynesian territories, a unilateral declaration by the Prime Minister of France that it would no longer conduct such testing in the South Pacific was held to be a unilateral act assuming an international legal obligation INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law Subjects of international law are entities which are capable of possessing international rights and obligations:  States  International Organizations (WTO, UN, EU)  Non-state actors, e.g. belligerent groups  NGOs  Individuals  Corporations/Multinational enterprises Second half of the 20th century may be described as a move towards the creation of international rights and duties of the individual and groups (with the development of international human rights and criminal law) INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law: states The international legal personality of states has never been put into question. They have been and continue to be the traditional and most important subjects of international law ‘Classical’ criteria for statehood are laid down in Art. I Montevideo Convention on the Rights and Duties of States of 1933: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.’ Recognition of states and collective non-recognition INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law: atypical subjects of international law The Holy See and the Sovereign Order of Malta traditionally have been accepted as subjects of international law International Committee of the Red Cross (ICRC) is an organization established in 1863 as a private Swiss association for fulfilling humanitarian tasks in times of war. The ICRC’s role in the promotion and implementation of the laws of war has led to it being endowed with specific rights under the 1949 Geneva Conventions. It has also entered into international treaties with a number of States and international organizations such as the UN INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law: NGOs While the legal personality of NGOs still is considered by some as an unsettled issue, it should be noted that they are increasingly recognized as relevant actors on the international scene For example, Article 71 of the UN Charter provides for a specific status of consultation for NGOs within the United Nations Economic and Social Council While this recognition within the UN system cannot automatically attribute international legal personality to the organizations concerned, one cannot ignore either that their influence and status have become more important INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law: individuals The position of international law with respect to individuals has changed considerably in the last 50 years Under traditional international law, individuals were under the exclusive control of states. Even the body of general international law which related to the position of aliens was in principle a matter between the State of residence and the State of nationality International law has undergone an evolutionary development: it is undisputed that international treaties may create individual rights and obligations. The most obvious examples are the numerous human rights treaties which have been concluded since 1945. Also international obligations for individuals: after Nuremberg trials the individuals have an obligation no to commit war crimes, crimes against humanity, genocide, crime of aggression INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Subjects of international law: corporations Multinational enterprises or transnational corporations are another candidate for functionally limited international legal personality It is especially the development in international investment law which leads to the conclusion of their—partial—international personality According to the principles applied in the International Centre for Settlement of Investment Disputes (ICSID), states and multinational companies are considered equal parties to a dispute once it has been brought to ICSID dispute settlement procedures (see notably Article 25 Convention on the Settlement of Investment Disputes between States and Nationals of other States INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Criticisms of international law The development of international law has been decidedly centred on Western Europe, including through imperial expansion Postcolonial scholars, in particular those adopting ‘Third World Approaches to International Law’ (TWAIL), have called attention to the colonial legacy in international law Feminist critique of international law Marxist perspectives in international law History of international law –e.g. Chapter 1 in Hernandez’ book INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Criticisms of international law ‘The Messiah will have to arrive before total consensus among international lawyers can be reached on any issue’ Joseph Weiler & Ulrich Haltern INSTITUTE FOR RISK AND DISASTER REDUCTION UCL Thank you