Public International Law Lecture Notes PDF

Public International Law Prof. Evhen Tsybulenko  Please give your Honest Opinion regarding Solution of Food Shortage problem at 3rd world countries  International Law (also called public international law to distinguish from "private in...

Public International Law Prof. Evhen Tsybulenko  Please give your Honest Opinion regarding Solution of Food Shortage problem at 3rd world countries  International Law (also called public international law to distinguish from "private international law", i.e. resolution for conflict of laws) – system of (legally binding) norms and principles written or customary which regulates conduct of states and intergovernmental international organizations. SOURCES OF PUBLIC INTERNATIONAL LAW  Primary: international conventions (expressly recognized by the contesting states) international custom (as evidence of a general practice accepted as law) general principles of the law recognized by civilized nations  Secondary (subsidiary) (as means for the determination of rules of law) judicial decisions" juristic writings  Implementation of international law – realization, execution and enforcement of international law at national, regional and local levels. Principles of PIL  - Pacta sunt servanda (Every treaty in force is binding upon the parties to it and must be performed by them in good faith). - equal rights and self-determination of peoples - sovereign equality and independence of all States - non-interference in the domestic affairs of States - the prohibition of the threat or use of force - peaceful settlement of international disputes - universal respect for, and observance of, human rights and fundamental freedoms for all  A classic definition of a state: “Inter-American convention on the rights and Duties of States!” (Montevideo, 26.12.1933) - a permanent population - a defined territory - Government - capacity to enter into relations with other states. (sovereignty: internal & external)  Establishment of borders: 1. Delimitation (Latin: Delimito) 2. Demarcation (French: Demarcation)  The Antarctic Treaty (Washington, 1 December 1959) The Antarctic Treaty (Washington, 1 December 1959) Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959 Annex I: Environmental Impact Assessment; Annex II: Conservation of Antarctic Fauna and Flora; Annex III: Waste Disposal and Waste Management.  Convention for the Conservation of Antarctic Seals (London, 1 June 1972) Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 20 May 1980) Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 2 June 1988) Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991)  Recognition - is a political act by which one state acknowledges an act or status of another state or government, thereby according it legitimacy and expressing its intent to bring into force the domestic and international legal consequences of recognition. Recognition can be accorded either de facto or de jure, usually by a statement of the recognizing government.  "succession of States" - the replacement of one State by another in the responsibility for the international relations of territory "predecessor State" - the State which has been replaced by another State on the occurrence of a succession of States "successor State" - the State which has replaced another State on the occurrence of a succession of States;  Vienna Convention on Succession of States in respect of Treaties 22 August 1978 Vienna Convention on Succession of States in Respect of States Property, Archives and Debts 8 April 1983  The Elements of State Responsibility: 1. Attribution of conduct to the state 2. Breach of an international obligation of the state:  Defenses or Excuses: 1. Consent 2. Self-defense 3. Force Majeure 4. Distress and necessity 5. Countermeasures  10 July 1985 New Zeland Auckland harbor “Rainbow Warrior” ICJ Judgment of 27 June 1986 Case concerning the military and paramilitary activities in and against Nicaragua (Nicaragua v. USA)  Treaty Agreement Accord Contract Pact Truce Settlement Covenant Compact Concordat Memorandum Act Declaration Statute Charter Classification of Treaties: 1. By object: - political - economic - on special questions  2. By subject: - between states - between states and IGO - between IGO, etc. 3. By number of participants - multilateral - bilateral  4. By coverage: - universal - regional - local  5. By participation: - open - closed - semi-closed  Analysis of Treaties 1. Name 2. Short name (if applicable) 3. Date of adoption 4. Date of enter into force 5. Namber of participannts - Signed - Ratified 6. Structure 7. Content  Vienna Convention on the Law of Treaties The Convention was adopted on 22 May 1969 and opened for signature on 23 May 1969 by the United Nations Conference on the Law of Treaties  “treaty” - 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  “negotiating State” - a State which took part in the drawing up and adoption of the text of the treaty; “contracting State” - a State which has consented to be bound by the treaty, whether or not the treaty has entered into force; “party” - a State which has consented to be bound by the treaty and for which the treaty is in force; “third State” - a State not a party to the treaty  CONCLUSION OF TREATIES 1. Capacity of States to conclude treaties 2. Full powers  “full powers” - a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty; 3. Adoption of the text 4. Authentication of the text 5. Means of expressing consent to be bound by a treaty: - Consent to be bound by a treaty expressed by signature - Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty - Consent to be bound by a treaty expressed by ratification, acceptance or approval - Consent to be bound by a treaty expressed by accession  “ratification”, “acceptance”, “approval” and “accession” - in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty 6. Exchange or deposit of instruments of ratification, acceptance, approval or accession 7. Consent to be bound by part of a treaty and choice of differing provisions 8. Obligation not to defeat the object and purpose of a treaty prior to its entry into force  “reservation” - a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;  ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES OBSERVANCE OF TREATIES APPLICATION OF TREATIES INTERPRETATION OF TREATIES TREATIES AND THIRD STATES AMENDMENT AND MODIFICATION OF TREATIES  INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES - Error - Fraud - Corruption of a representative of a State - Coercion of a representative of a State - Coercion of a State by the threat or use of force - Treaties conflicting with a peremptory norm of general international law (jus cogens) TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY  African Union Caribbean Community Commonwealth (former British Commonwealth) European Union League of Arab States NATO Organization for Security and Co- operation in Europe (OSCE) Organization of American States (OAS) Organization of the Islamic Conference Commonwealth of Independent Sates The United Nations System  Affirmation of the Principles of International Law recognised by the Charter of the Nüremberg Tribunal. Resolution 95 (I) of the United Nations General Assembly, 11 Principles of International December Law1946 Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950. Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.  Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI: The crimes hereinafter set out are punishable as crimes under international law:(a) Crimes against peace(b) War crimes(c) Crimes against humanity Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. - Affirmation of the Principles of International Law recognised by the Charter of the Nüremberg Tribunal. Resolution 95 (I) of the United Nations General Assembly, 11 December 1946. - Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948. - Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968. No statutory limitation shall apply to the following crimes, irrespective of the date of their commission… - Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4.XI.1950 Article 7. No punishment without law p. 2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilized nations. Aggression - is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Any of the following acts, regardless of a declaration of war shall qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;. (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.. 1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful..  Genocide "genocide" means any of the following acts committed with INTENT to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.  Enver Pasha: One of the triumvirate rulers publicly declared on 19 May 1916… "The Ottoman Empire should be cleaned up of the Armenians and the Lebanese. We have destroyed the former by the sword, we shall destroy the latter through starvation."  Adolf Hitler While persuading his associates that a Jewish holocaust would be tolerated by the west stated… "Who, after all, speaks today of the annihilation of the Armenians?"  "Crimes against humanity" following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.  War crimes Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. +++++++++++++++++++++++++++++  Enforcement of IHL: Nuremberg and Tokyo International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda International Criminal Court (ICC)  Complementarity ICC only acts when national jurisdictions are: -“unwilling” or -“unable” genuinely to investigate or prosecute The ICC is a court of last resort  Jurisdiction A. TEMPORAL Crimes committed after 1 July 2002  Jurisdiction B. PERSONAL In general: Crimes committed on territory, or by nationals, of a State Party In addition: Security Council referral Non State Party accepts jurisdiction for a specific situation  Jurisdiction C. SUBSTANTIVE Genocide Crimes against Humanity War Crimes Aggression (Kampala amendments)  Jurisdiction D. EXERCISE OF JURISDICTION Referral to Prosecutor by State Party Referral to Prosecutor by Security Council Prosecutor initiates investigation on his/her own initiative (need for authorization by Pre-Trial Chamber)  International criminal offences Terrorism Children and Human Trafficking Property Crimes Drugs Financial crimes Corruption Environmental Crimes  Interpol Core functions: Secure global police communications services Operational data services and databases for police Operational police support services  Peaceful Settlement of International Disputes: Diplomatic Methods: Negotiation Good offices Mediation Conciliation Inquiry/Neutral Evaluation  Legal Methods: – Arbitration – The International Court of Justice (ICJ) – Other Courts and Tribunals International Organizations  Examples of treaties or conventions conferring jurisdiction on the ICJ Convention on the prevention and punishment of the crime of genocide Convention relating to the status of refugees Treaty of friendship (India/Philippines) Universal copyright convention European convention for the peaceful settlement of disputes Single convention on narcotic drugs Optional protocol to the Vienna convention on diplomatic relations, concerning the compulsory settlement of disputes International convention on the elimination of all forms of racial discrimination Convention on the law of treaties Convention on the suppression of the unlawful seizure of aircraft Convention for the suppression of unlawful acts against the safety of civil aviation International convention against the taking of hostages United Nations convention against illicit traffic in narcotic drugs and psychotropic substances United Nations framework convention on climate change Convention on biological diversity Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and their destruction  States recognizing the compulsory jurisdiction of the Court (with or without reservations) Australia Austria Barbados Belgium Botswana Bulgaria Cambodia Cameroon Canada Colombia Costa Rica Cyprus Denmark Dominican Republic Egypt Estonia Finland Gambia Georgia Greece Guinea-Bissau Haiti Honduras Hungary India Japan Kenya Liberia Liechtenstein Luxembourg Madagascar Malawi Malta Mauritius Mexico Nauru New Zealand Netherlands Nicaragua Nigeria Norway Pakistan Panama Philippines Poland Portugal Senegal Somalia Spain Sudan Suriname Swaziland Sweden Switzerland Togo United Kingdom of Great Britain and Northern Ireland Uganda Uruguay Zaire  Vienna Convention on Diplomatic Relations, 1961 The functions of a diplomatic mission consist, inter alia, in:  (a) representing the sending State in the receiving State; (b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) negotiating with the Government of the receiving State;  (d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.  VIENNA CONVENTION ON CONSULAR RELATIONS DONE AT VIENNA, ON 24 APRIL 1963 CONSULAR FUNCTIONS:  - protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; - furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them; - ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;  - issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State; - helping and assisting nationals, both individuals and bodies corporate, of the sending State; - acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature;  - safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State; - safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;  Maritime law (also referred to as Admiralty law) body of private international law governs maritime questions and offenses, relationships between private entities which operate vessels on the oceans: (Ownership. Registration and management of ships. Ship mortgages, Safety of shipping. The law on Collisions. Assistance in case of shipwreck. Salvage. Towage. Harbours and pilotage. Responsibility of the diverse actors (ship owner, captain, commercial agent, insurance). Limitation of liability. The rules on Jurisdiction regarding the Arrest of ships.)  Law of the sea body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations United Nations: (The score of sovereignty. Nationality of ships. Delimitation of maritime boundaries (Baselines. Internal waters. Territorial sea. Archipelagos. International straits. International channels. International rivers. The contiguous zone. The continental shelf. The exclusive economic zone. High seas. The international sea bad area). Protection of the marine environment. Pollutions. Fishing. Marine scientific research and the transfer of technology. Artificial installations. The access of landlocked States to the sea). Convention on the Law of the Sea of 10 December 1982  Freedom of the high seas: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines (d) freedom to construct artificial islands and other installations; (e) freedom of fishing; (f) freedom of scientific research.  The Law of the Air Private International Law aspects Warsaw system: Convention for the Unification of Certain Rules Relating to International Carriage by Air Warsaw, October 12, 1929 Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air The Hague, September 28, 1955 Convention Supplementary to the WConv Performed by a Person Other than the Contracting Carrier Guadalajara, September 18, 1961  Rome system: Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface Rome, October 7, 1952 Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface Montreal, September 23, 1978  Public International Law aspects: Tokyo system: Convention on Offences and Certain Other Acts Committed on Board Aircraft Tokyo, September 14, 1963 Convention for the Suppression of Unlawful Seizure of Aircraft The Hague, December 16, 1970 Convention for the Suppression of Unlawful Acts Against Safety of Civil Aviation Montreal, September 23, 1971 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation Montreal, February 24, 1988  Chicago system Convention on International Civil Aviation Chicago, December 7, 1944 Amendments: Montreal, September 30, 1977 Montreal, October 6, 1980 Montreal, May 10, 1984  Adoption of international standards and procedures (dealing with) (a) Communications systems and air navigation aids, including ground marking; (b) Characteristics of airports and landing areas; (c) Rules of the air and air traffic control practices; (d) Licensing of operating and mechanical personnel; (e) Airworthiness of aircraft; (f) Registration and identification of aircraft; (g) Collection and exchange of meteorological information; (h) Log books; (i) Aeronautical maps and charts; (j) Customs and immigration procedures; (k) Aircraft in distress and investigation of accidents  Documents carried in aircraft (a) Its certificate of registration; (b) Its certificate of airworthiness; (c) The appropriate licenses for each member of the crew; (d) Its journey log book; (e) If it is equipped with radio apparatus, the aircraft radio station license; (f) If it carries passengers, a list of their names and places of embarkation and destination; (g) If it carries cargo, a manifest and detailed declarations of the cargo.  International Space Law Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space adopted by the General Assembly in its resolution 1962 (XVIII) in 1963 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty", adopted by the General Assembly in its resolution 2222 (XXI)), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications and 27 signatures (as of 1 January 2003);  Principles of international space law: the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means; States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;  the Moon and other celestial bodies shall be used exclusively for peaceful purposes; astronauts shall be regarded as the envoys of mankind; States shall be responsible for national space activities whether carried out by governmental or non-governmental activities; States shall be liable for damage caused by their space objects; and States shall avoid harmful contamination of space and celestial bodies.  The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement", adopted by the General Assembly in its resolution 2345 (XXII)), opened for signature on 22 April 1968, entered into force on 3 December 1968, 88 ratifications, 25 signatures, and 1 acceptance of rights and obligations (as of 1 January 2003); The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention", adopted by the General Assembly in its resolution 2777 (XXVI)), opened for signature on 29 March 1972, entered into force on 1 September 1972, 82 ratifications, 25 signatures, and 2 acceptances of rights and obligations (as of 1 January 2003);  The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention", adopted by the General Assembly in its resolution 3235 (XXIX)), opened for signature on 14 January 1975, entered into force on 15 September 1976, 44 ratifications, 4 signatures, and 2 acceptances of rights and obligations (as of 1 January 2003); The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement", adopted by the General Assembly in its resolution 34/68), opened for signature on 18 December 1979, entered into force on 11 July 1984, 10 ratifications and 5 signatures (as of 1 January 2003).  INTERNATIONAL ECONOMIC LAW Tariffs; Import quotas; Export subsidies; Imposition of taxes; Exchange controls; Safety regulations; International Trade: -The General Agreement on Tariffs and Trade (GATT) - The UN Conference on Trade and Development (UNCTAD) International Monetary Law: - The International onetary Fund (IMF) International development: - The World Bank  International Environmental Law “Earth Summit” Climate Change Ozone Depletion Biological Diversity Hazardous Waste Trade Ocean Pollution Marine resources Desertification.