Public International Law PDF

Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. Chapter One...

Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. Chapter One Introduction to Public International Law In the long march of mankind from the cave to the computer a central role has always been played by the idea of law - the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these be hunting animals, growing food or simply making money. Law is that element which binds the members of the community together in their adherence to recognized values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizens. There are many contrasts between the law within a country (municipal law) and the law that operates outside and between states, international organizations and, in certain cases, individuals. 1 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. I. Definition of PIL:  There are many definitions of international law. Their content depends on the time and context in which they were formulated and the perspective from which international law was viewed.  The seventeenth century was an important period in the development of international law. In the early 1600s, the conception of international law was developed by the practitioner and scholar Hugo Grotius, in his famous work On the Law of War and Peace. His key contribution to the development of international law was to distinguish the ‘law of nations’ from natural law, by creating a set of rules applicable solely to states. This was a crucial development because, as Neff notes, ‘for the first time in history, there was a clear conception of a systematic body of law applicable specifically to the relationship between nations’.  The modern structure and form of the international system can largely be traced back to the Peace of Westphalia in 1648, bringing about the end of the vicious Thirty Years War – a war that came to involve virtually the entirety of Europe in a struggle for political and military domination. Gerry Simpson describes the Peace of Westphalia (really two treaties adopted at Münster and Osnabrück) as ‘the transition from empire to sovereignty’. A key development emerging from Westphalia was a substantial reduction in the role played by religion in the international system, through the decline of the ‘presence of two poles of authority: the Pope at the head of the Catholic Church, and the Emperor at the head of the Holy Roman Empire’. This decline opened the door for the beginnings of the modern international law system, leading to the rise of the nation state as the key actor in international law and politics. 2 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved.  The Permanent Court of International Justice (PCIJ), in the case of the SS Lotus Case (France v Turkey), provided the following definition: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims”.  Today, international law refers to those rules and norms which regulate the conduct of states and other entities which at any time are recognized as being endowed with international personality, for example international organizations and individuals, in their relations with each other.  States, although they remain the primary subjects of international law, are no longer its exclusive subjects as they once were. International law was initially concerned exclusively with regulating interstate relations and then only in respect of diplomatic relations and the conduct of war. This is no longer true. International law has expanded both in terms of its subjects and its content. Major problems of international concern have been tackled collectively by states. II. The Second World War and the new concept of PIL:  The Second World War inflicted countless sufferings and misfortunes on mankind. The UN which was established to end all wars oversaw four decades of Cold War fought in the continents of Africa, Asia and Latin America. The Cold War was ‘cold’ because there was no war on the European continent. The end of the Cold War raised hopes among many that it would end proxy wars around the world forever. Instead, wars returned to the heart of the European continent.  The establishment of the League of Nations for the peaceful settlement of interstate disputes failed to avert WW2. 3  Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. III. Nature and Characteristics of International Law:  Is International law a true law?  International law has long been burdened with the charge that it is not really law. This misleading claim is premised on some undeniable but misunderstood facts about international law: that it lacks a centralized or effective legislature, executive, or judiciary; that it favors powerful over weak states; that it often simply mirrors extant international behavior; and that it is sometimes violated with impunity.  It is sufficient to say here that international law is law.  Breaches of international law are more spectacular than breaches of national law and therefore the impression is given that because some breaches are never punished there is no effective enforcement of international law and therefore it cannot exist.  In this respect it can be said that, first, enforcement mechanisms of international law are not the same as those available within domestic legal systems because enforcement of international law depends on the will of many sovereign States. Second, in most cases States obey international law but their compliance is not as highly publicized as is non-compliance. Third, a distinction must be made between the existence of law and its enforcement.  Enforcement is not essential to its existence because normally rules are obeyed, whether domestic or international, not only out of fear but because they are perceived to be right, just and appropriate. 4 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. IV. Difference between Private and Public International Law:  International law itself is divided into conflict of laws (or private international law as it is sometimes called) and public international law (usually just termed international law).’ The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts.  Public international law concerns state-to-state relations and intergovernmental bodies, whereas private international law concerns relationships between private parties across international jurisdictions including commercial affairs and family law. No. Public International Law Private International Law [Law of Conflicts] 1. Public International law is the body of Conflict of laws, often called Private legal rules, which applied between International Law. Private International Sovereign States and other International Law regulating relationship between Personalities. Private persons (Natural or Legal) of two different States. 2. Public International law rules are outcome Private International law rules are framed of international custom and treaties. by the State legislature. 3. Public International law is enforced by Private International Law is enforced by the international pressure and fear for example concerned State executive. – breakage of diplomatic relations, sanctions etc. 5 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. 4. In public International Law there is no In private International Law courts are Predetermined Court. predetermined. 5. Public International Law is same for all the Private International Law differ from state States. to state. V. The different branches of Public International Law: The branches of the PIL include the following branches: i. International Humanitarian Law [law of war]; ii. International Human Rights Law1; 1 Worth highlighting that ‘international humanitarian law’ and ‘international human rights law’ are two distinct but complementary bodies of law. They are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war. Both international humanitarian law and human rights law apply in armed conflicts. The main difference in their application is that international human rights law allows a State to suspend a number of human rights if it faces a situation of emergency. IHL cannot be suspended (except as provided in Article 5 to the Fourth Geneva Convention). However, a State cannot suspend or waive certain fundamental rights that must be respected in all circumstances. These include the right to life, the prohibition of torture and inhuman punishment or treatment, the outlawing of slavery or servitude, the principle of legality and the non-retroactivity of the law and the right to freedom of thought, conscience and religion. States have a legal duty to respect and implement both IHL and human rights law. Compliance with IHL requires a state to introduce national legislation to implement its obligations, to train its military and to bring to trial those in grave breach of such law. Human rights law also contains provisions requiring a State to take legislative and other appropriate measures to implement its rules and punish violations. IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties governing means and methods of waging war such as those banning blinding laser weapons, landmines and chemical and biological weapons, as well as customary law. 6  Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. iii. International Refugee Law; iv. International Criminal Law; v. Law of the Sea; vi. Diplomatic Law; vii. International Environmental Law; viii. International Economic Law; and ix. International Security Law. VI. The Basic Principles of the International Legal System:  1. International law is state-centered: International law regulates the conduct of states as main actors on international scene. Responsibility of international organizations and transnational corporations become topical in the last decade. However, international legal instruments traditionally address states.  2. No single authority in international law: National law system on top of the hierarchy is the president, the parliament, the government … etc. vertical and centralized….. International law system is horizontal and decentralized, so there is no signal authority making laws. International human rights law is more complex and unlike IHL includes regional treaties. The main global legal instrument is the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948. Other global treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights as well as treaties on the prevention and punishment of torture and other forms of cruel, inhuman or degrading treatment or punishment, on the elimination of racial discrimination and discrimination against women, or on the rights of the child. Regional human rights conventions or charters have been adopted in Europe, the Americas, Africa, and the Arab region. In situations of armed conflict, human rights law complements and reinforces the protection afforded by International Humanitarian Law. IHL and human rights law, ICRC, Article, 29 October 2010, https://www.icrc.org/en/document/ihl-human-rights-law. 7 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved.  3. International law is based on state consent: As there is no single law-making or enforcing authority, states need to agree to assume legal obligations Consent: legal or official permission to do something agreement as to action or opinion.  4. Responsibility is collective: National legal system: speak about individual responsibility, one who commits a crime/offence is responsible for it individually. International legal system: speak about state responsibility, which is by nature collective: the whole state is liable (as a single legal entity). There is also an individual criminal responsibility for especially grave violations of international law: war crimes, crimes of genocide, etc.  5. Sovereign equality of states: Essence of this rule is that all states have equal rights and duties and are equal members of the international community irrespective of their differences of an economic, social, political or other nature. States have to respect the personality of other States.  6. non-intervention in the internal affairs of another state: Essence of this rule is that States do not have the right to intervene, directly or indirectly, for any reason whatever, in the internal affairs of any other State. For example: encouraging overthrow of active government, inciting political destabilization, financing terrorist activities, economic pressure and/or coercion. 8 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved.  7. Use of force is prohibited: Article 2(4) of the Charter of the United Nations provides: [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]. Kofi Annan, Secretary-General of the United Nations at the time of the 2003 Iraq conflict, has written: “No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4.... Secretaries- General confront many challenges in the course of their tenures but the challenge that tests them and defines them inevitably involves the use of force”. Use of force is prohibited: Are there any exceptions? 1. Collective action for protection of international peace & security (Chapter VII of the UN Charter)2. 2 Chapter VII of the Charter of the United Nations provides the framework within which the Security Council may take enforcement action. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to make recommendations or to resort to non-military and military action to "maintain or restore international peace and security". https://www.un.org/securitycouncil/content/repertoire/actions. The Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Secondly, Article 51 also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state. The Security Council is authorized to determine the existence of, and take action to address, any threat to international peace and security. In practice this power has been relatively little-used because of the presence of five veto- wielding permanent members with interests in a given issue. Typically measures short of armed force are taken before armed force, such as the imposition of sanctions. The first time the Security Council authorized the use of force was in 1950 to secure a North Korean withdrawal from South Korea. Although it was originally envisaged by the framers of the UN Charter that the UN would have its own designated forces to use for enforcement, the intervention was effectively controlled by forces under United States command. The weaknesses of the system are also notable in that the fact that the resolution was only passed because of a Soviet boycott and the occupation of China's seat by the Nationalist Chinese of Taiwan. https://en.wikipedia.org/wiki/Use_of_force_in_international_law. 9 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. 2. Individual or collective self-defense if armed attack occurs (Article 51 of the UN Charter)3.  8. preserving peace & respect for human rights is key: World war II brought not just the physical destruction of cities and damage to the economies, but also enormous human suffering. Thus, after war there was an understanding that human life becomes truly valuable. End of World War II establishment of the United Nations. The above is reflected in Article 1 of the UN Charter: The Purposes of the United Nations are: [1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…]. …. [3. To achieve international co-operation in … in promoting and encouraging respect for human rights and for fundamental freedoms for all]. 3 Article 51 provides: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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-defence 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.” https://legal.un.org/repertory/art51.shtml. 10 Public International Law Dr. Khaled Swelam Chapter 1: Introduction to Public International Law © Copy Righted …. All rights reserved. VII. Where does international law come from and how it is made? These are more difficult questions than one might expect and require considerable care.  In particular, it is dangerous to try transfer ideas from national legal systems to the very different context of international law.  There is no Code of International Law”. International law has no parliament and nothing that can really be described as legislation.  The jurisdiction of international courts and tribunals requires the consent of States. 11