Public International Law PDF

Public International Law Prof.: Veronica Corcodel Ana Patrícia Magalhães 2021/2022 Public International Law Index Index.............................................................................................................................................................................1 The Nature of PIL.........................................................................................................................................................4 1. What is PIL?.........................................................................................................................................................4 2. Relation between PIL and domestic law..............................................................................................................4 3. So how come PIL is law?.....................................................................................................................................5 4. Theories of PIL.....................................................................................................................................................6 5. What is PIL for?...................................................................................................................................................8 The History of PIL........................................................................................................................................................9 Sources of PIL............................................................................................................................................................14 1. States as the main law-makers in PIL: early positions of the PCIJ....................................................................14 2. Outline of sources of PIL: art.º 38 Statute ICJ...................................................................................................15 Treaties...............................................................................................................................................................16 International Customary Law (ICL)...................................................................................................................16 General Principles of Law..................................................................................................................................16 Unilateral Declarations.......................................................................................................................................16 3. The specific issues of the International Customary Law....................................................................................16 Subjects of PIL...........................................................................................................................................................20 1. States...................................................................................................................................................................20 2. Continuity and change of statehood – Principle of continuity of statehood.......................................................23 The issue of state succession..............................................................................................................................24 The Individual in PIL and Human Rights Protection.................................................................................................26 1. The emergence and development of International Human Rights Law.............................................................26 Human Rights in the U.N. Framework...............................................................................................................27 2. Difference between civil and political rights and social, economic and cultural rights.....................................27 3. International and regional human rights instruments.........................................................................................28 The European Convention of Human Rights......................................................................................................28 The Inter-American Human Rights System........................................................................................................28 African Human Rights System...........................................................................................................................29 ASEAN System..................................................................................................................................................29 4. Self-determination as a Group Right..................................................................................................................29 UN General Assembly Resolution 1514 (1960).................................................................................................30 Uti Possidetis as Limit........................................................................................................................................31 Increasing Recognition of Self-Determination...................................................................................................31 Persisting Issues..................................................................................................................................................32 Certainties and uncertainties in relation to self-determination...........................................................................32 1 Public International Law The Law of Treaties....................................................................................................................................................34 1. The Vienna Conventions....................................................................................................................................34 2. The Concept of Treaty........................................................................................................................................34 3. Conclusion of Treaties........................................................................................................................................34 4. Reservations and Jurisdiction.............................................................................................................................35 VCLT on Reservations.......................................................................................................................................37 Other Practices with Similar Effects but not Considers as Reservations............................................................39 5. Application of Treaties.......................................................................................................................................39 6. Treaty Revision...................................................................................................................................................40 7. Validity and Invalidity of Treaties......................................................................................................................40 The International and Domestic Relation...................................................................................................................42 1. Theories about how the international and domestic relation works...................................................................42 2. PIL perspective on its relationship with the ‘domestic’.....................................................................................43 3. Domestic perspective on its relationship with PIL.............................................................................................44 4. Academic debates on the ‘new dualism’............................................................................................................46 5. States’ avoidance strategies................................................................................................................................47 Spheres and Limits of Jurisdiction.............................................................................................................................49 1. Three Principles Corresponding to the Definition of State.................................................................................49 Territoriality........................................................................................................................................................49 Nationality..........................................................................................................................................................50 Protection............................................................................................................................................................50 2. Other Principles Invoked by States in relation to Jurisdiction............................................................................50 Passive Personality Principle..............................................................................................................................50 Universal Jurisdiction.........................................................................................................................................50 Issue of Concurrent Jurisdiction.........................................................................................................................51 3. Issues Related to Extraterritorial Jurisdiction.....................................................................................................51 European Human Rights Law.............................................................................................................................51 4. Sovereign Immunities.........................................................................................................................................52 International criminal tribunals and Immunity...................................................................................................53 5. Powers of International Organizations...............................................................................................................53 6. Conclusion..........................................................................................................................................................54 Spheres and Limits of Responsibility.........................................................................................................................55 1. State Responsibility: Main Principles.................................................................................................................55 Attribution..............................................................................................................................................................55 Internationally Wrongful Act.............................................................................................................................56 2. State Responsibility: The issue of private acts...................................................................................................56 The special case of insurrectional movements...................................................................................................58 2 Public International Law 3. Circumstances Precluding Wrongfulness...........................................................................................................58 4. Consequences of Responsibility.........................................................................................................................60 5. Responsibility of International Organizations....................................................................................................61 6. Individual Responsibility....................................................................................................................................62 Issues of Enforcement................................................................................................................................................63 1. Breach of obligations – decentralized sanctions.................................................................................................63 2. Retorsion – decentralized sanctions....................................................................................................................64 3. Countermeasures – decentralized sanctions.......................................................................................................64 Limitations of Countermeasures?.......................................................................................................................65 4. Collective Security.............................................................................................................................................65 United Nations as a System of Collective Security – The Role of the Security Council...................................65 The Role of the General Assembly When SC Action is Prevented by the Veto................................................69 Force and Violence.....................................................................................................................................................71 Global Economy.........................................................................................................................................................80 3 Public International Law The Nature of PIL 1. What is PIL? The traditional view is that PIL is the group of rules governing the relations between states. The existence of international relations, of whatever kind, entails the existence of international law. So, international law deals with war and peace, genocide and human rights, there are also rules on trade, on protection of the environment, shipping, and the protection of refugees. Public International Law regulates the relations between states whereas Private International Law regulates the individual conduct with a transnational element (international contracts, international marriages, international traffic accidents, etc.). However, this distinction is blurred, because many of Public IL rules impact not only on States, but also other entities (companies, individuals), and many are created not only through relations between States, but also sometimes involve civil society organisations or representatives of international organisations. 2. Relation between PIL and domestic law National legal systems regulate the conduct within a State of persons with legal personality. Public international law is the body of law that mainly regulates States in their relationship with one another. How would law be created to regulate relationships between States? How different would this be from the law-making processes that we know on the national level? States themselves are the ones that often create PIL! Domestic model – on the national level, there is a body that creates laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. PIL, on the other hand, doesn’t fit the domestic model: The General Assembly of the UN (dealing with the exercise of collective security and peace, but also functions as a platform for discussion on many other topics) with delegates from all Member States can issue resolutions, but they are not legally binding (except for certain organs of the UN and for certain purposes); 4 Public International Law There isn’t a compulsory jurisdiction of courts. The ICJ can decide cases only when both States agree on its jurisdiction; There is a problem of enforcement, since the ICJ cannot ensure that its decisions are complied with; There isn´t an executive of governing entity. The Security Council of the UN was intended to have such a role, but it has at times been constrained by the veto power of the 5 permanent members (USA, Russia, China, France, UK); Within the UN system, sanctions may be imposed by the Security Council upon the determination of a threat to the peace, breach of the peace or act of aggression. Economic sanctions (for ex. those proclaimed in 1966 against Rhodesia) or military (as in the Korean war in 1950), or both (as in 1990 against Iraq). BUT coercive action within the framework of the UN is rare because it requires co- ordination amongst the five permanent members of the Security Council, and this needs an issue not regarded by any of the great powers as a threat to their vital interests. 3. So how come PIL is law? If there is no identifiable institution in charge with establishing rules, or implementing them, or ensuring that some sanction applies to those who break the rules, how can, what is called international law, be law? The basis for this argument is the comparison of domestic law with international law, and the assumption of an analogy between the national system and the international order. At the turn of the 19th century, John Austin (English legal theorist) elaborated a theory of law based upon the notion of a sovereign issuing a command backed by a sanction or punishment (idea of coercion or force). Since international law did not fit within that definition it was relegated to the category of ‘positive morality’ – more or less binding on states but as a matter of morality, not law. If you start with a definition of law as centred on sanction/force, it is difficult to describe the legal nature of international law. Austin’s understanding of law has been criticised for oversimplifying the nature of law and for overemphasising the role of the sanction within the system by linking it to every rule. In order to understand the operation of PIL, we need to take a broader approach to sanctions. We need to see and recognise PIL’s unique attributes. So, PIL is based on a network of relationships existing mainly between states. While the modern legal structure within societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states. The law is above individuals in domestic systems (they do not create it), but PIL only exists as between the states. It is the states themselves that create the law and obey or disobey it. This unique characteristic will have an impact on sources of law and the means for enforcing accepted legal rules. Approaching the notion of “sanction” more broadly, even if there isn’t an international police force and an international prison where states can be locked up, the social sanction of becoming a pariah (outcast) state may be strong. To this effect, there are measures of retorsion (≠ reprisals!), measures taken within the limits of the law to send the message that a state is not pleased with another’s actions. For example, recalling the ambassador ‘for consultation’, or the breaking off of diplomatic relations altogether. States can send strong political messages but without breaching international obligations. 5 Public International Law Furthermore, since the 1990s PIL could, on occasion, imprison individuals who have committed war crimes and related acts. Ex: those convicted by the Yugoslavia and Rwanda tribunals, even if it took the International Criminal Court (ICC, in existence since 2002) a decade to decide its first substantive case. The truth is that PIL works because states feel obliged to obey the rules of PIL. In addition to the argument of a broader conception of ‘sanction’ or seeing equivalent mechanisms, some argue that PIL seems to work well: “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’ (Louis Henkin). Even when PIL rules are not observed, often times states still feel the need to justify their actions on the basis of some PIL rules perceived as binding. When PIL works, how come it works?: Since states are the ones who make international law, they have little incentive to break it (Jan Klabbers). Even when they break it according to some view, they still feel the need to justify their actions on some interpretation (even if dubious) of PIL; It is also related to an idea of bureaucratic inertia: a matter of habit and routine of those who routinely implement international legal norms. “Unless something dramatic happens (a new treaty, a new court ruling, a new government perhaps), states will continue to do what they are used to doing” (Jan Klabbers). So why does PIL work?: Considerations of reciprocity; Examples: if 2 states are at war, they would be dissuaded from mistreating the other’s citizens by violating the Geneva Convention on Prisoners of War, because the other state would be tempted to do the same in relation to its own citizens. Or states protect the immunity of foreign diplomats because not doing so would put their own officials abroad at risk; In some cases, this logic does not work, however. Example of environmental damage: ‘If you pollute your rivers, then I shall pollute mine’; idem for human rights : ‘If you torture your citizens, I shall torture mine’; Role of legitimacy – a rule that is generally perceived as useful may be seen as legitimate and trigger a ‘compliance pull’. States don’t need to be reminded that they should adhere to such a rule; they would want to adhere to it; Powerful social sanction stimulating law-abiding behaviour – states cannot escape from each other, and it is costly to be a pariah (outcast) state. Individuals can flee from the law by escaping to another country, but states cannot. They must interact with each other, and good reputation is important: no one wants to do business with a state that is known for not respecting its commitments. 4. Theories of PIL But even if it is accepted that international law is binding, there is still a question: where does that law come from (what is the basis of the sense of obligation?). 6 Public International Law Early theory of PIL: Natural Law Early thinkers, before the Reformation and some time after, tended to think that PIL was natural law. It was given by God and recognizable by those who adhered to the right religion. The problem with this view is that it is inherently subjective. As a result of this, those of a different faith might reach different conclusions. 19th century: Positive Law By the 19th century, naturalism had been replaced by a more scientific-looking positivist approach. Positivism starts from the idea that law is not to be found in nature but that it is manmade. So, the contents of PIL can be discovered by looking at what states actually do. Context of 19th century – a business-oriented philosophy, stressed the importance of the contract, as the legal basis of an agreement freely entered. This context influenced the theory of consent in international law. Theory of consent = States as independent, free agents, that could be bound only with their own consent. No authority in existence is able to impose rules upon the various states. The extreme version of this is in the idea of auto-limitation: idea that states could only be obliged to comply with international legal rules if they had first agreed to be so obliged. Shortcomings of Positive Law Theory: About 100 states have come into existence after WW II – it is hard to say that they have consented to all the rules of PIL formed before; Growth in international institutions – a set of rules and regulations emerged from them; Sometimes, when consent withdrawn, it places that state in breach of its obligations under PIL. The very principle that agreements are binding (pacta sunt servanda), upon which all treaty law must be based, cannot itself be based on consent; Despite this, to recognise the limitations of consent, is not to neglect its significance. Much of PIL is constituted by states expressly agreeing to specific rules (most often through treaties). PIL as both naturalist and positivist? PIL is constantly in search of a compromise between the naturalist and the positivist traditions (Martti Koskennniemi). In this sense, PIL is both naturalist (in that it has to serve the common good of mankind, in today's version) and positivist (reflecting state practice and interests). But can PIL do both at the same time? What happens is that whenever someone invokes a naturalist argument, it is vulnerable to a positivist critique and vice versa. Example: the naturalist may say that nuclear weapons are a terrible invention; the positivist may reply that even so, there is no treaty prohibiting them. The naturalist may respond that even if there is no such treaty, it is prohibited because there is no clear rule allowing for their use. This discussion can go on forever unless states reach some agreement on what to do. 7 Public International Law In Koskenniemi's words, international law is eventually the continuation of politics. It offers a framework and a vocabulary for the conduct of politics, but does not offer any determinate solutions, precisely because it appeals both to justice and to everyday practice at the same time. 5. What is PIL for? All of the above have been emphasized by different authors. PIL is mobilized for different political positions. Some studied how PIL has been related to colonialism, or how it serves the needs of a global market economy. Some explored the emancipatory potential of PIL; PIL used for worthy causes (ex. of Karen Knop on self-determination and disadvantage groups). Few still believe in the fiction of a neutral, politically innocent international law. What often matters in addition to the rules and principles of PIL are the identity and mindset of the people taking decisions, and the conditions under which this political debate can take place. 8 Public International Law The History of PIL The origins of PIL lies firmly in the development of Western culture and political organisation. The modern PIL, as we mostly know it today, is usually said to have started in the 17th century. Prior to 17th century, much of Europe was organized in large empires, such as the Roman Empire. Europe was then understood as being “congruent with the world at large”, so people did not think in terms of different political entities requiring a certain legal system for governing their relations (empires understood as single entities, law being in turn understood as internal). 17th century 1648 – the Peace of Westphalia marking the end of the Thirty Years' War (Holy Roman Empire). In Münster and Osnabrück, two cities in today's Germany, the secular power of the pope came to a definitive end. The decline of the Church marked the creation of modern states. It was agreed that Europe would be divided into a number of territorial units, each of which could decide which religion to adopt. No outside interference was allowed, the result being the creation of sovereign states and, therewith, the birth of the modern state system (city states and feudal entities lost out). State sovereignty is an important principle in PIL. It is the exclusive right of a State to determine its internal (i.e. control of population & territory) and external affairs (i.e. how a State relates to other States). It implies that a State doesn’t answer to another State or entity, save to the extent that the State consents. Colonialism PIL has been closely connected with imperialism and colonialism. And more generally with the struggle between Western powers for influence elsewhere in the world. How were ‘the natives’ in other continents seen? Territories found overseas were to be regarded as not having been subject to sovereignty, as territory belonging to no one – terra nullius. So, arriving in Asia or the Americas, the European powers could proclaim that those territories belonged to them. The original inhabitants were largely ignored. BUT the peoples of the Americas and Asia were also deemed capable of concluding contracts with the Europeans, even contracts that would allow the Europeans exclusive trading rights in valuable commodities such as 9 Public International Law pepper or nutmeg. Thus, there was a paradox: for establishing sovereignty over the natives, the local population was often ignored; but for commercial purposes, their consent was deemed vital. End of 15th century to the end of 16th century – Spanish- Portuguese domination: In 1493, the pope issued a papal bull (decree) drawing a line through the Atlantic Ocean; Most of the territory to the west (with the exception of Brazil) was said to belong to Spain, while Portugal claimed some of the territories to the east; This was confirmed a year later in the Treaty of Tordesillas; Further expansion of both confirmed in the Treaty of Saragossa in 1529. End of 16th century to the beginning of 17th century: England and Holland emerged as maritime powers, breaking the previous trading monopolies and bringing the Spanish-Portuguese domination to an end; In 1602 the Dutch created the United East India Company and assigned it a trading monopoly. The Company was seen as exercising delegated governmental authority; it could acquire and administer territory, declare war, conclude treaties and seize foreign ships. Hugo Grotius: 1625 of Hugo Grotius’ On the Law of War and Peace setting the law of armed conflict and aggression, but also issues like binding force of treaties. He was, probably, the first to lay down a set of binding international obligations; He was an influential figure. He argued that there is a universal right to trade and that trading routes, including the seas, should be free (common); This idea benefited the Dutch East India Company, through which Dutch colonial exploitation was to be achieved. The idea was to ensure shipping for the Dutch fleet, making it impossible for other countries, like Spain, Portugal and England, to claim authority over the high seas. 17th century: 10 Public International Law In 1603 the Dutch seized the Portuguese vessel Santa Catharina. In order to legitimate this act, the Company asked Grotius to write on its behalf. In Mare Liberum, Grotius argued that the high seas were not terra nullius (as the Spanish and Portuguese had implicitly presumed), but rather terra communis: common property, so not susceptible to occupation and sovereignty; The English insisted on exclusive rights to the high seas around the British isles, based on the argument that states could generate maritime zones; Only in the mid-17th century, the Dutch came to accept, without really formally acknowledging it, the British position. 19th century: Development of trade and communications, industrialisation; PIL prohibited slavery and slave trade (but allowed it before the 19th century); This was curiously followed by the colonization of Africa; which was previously used to be a large reservoir of slave labour without being colonized; Scramble for Africa: especially rivalry between the French and the English; with Germany, Portugal and Belgium playing smaller roles; The Congress of Vienna (1814-1815) marked the conclusion of the Napoleonic wars and established the new international order; PIL became Eurocentric, the preserve of the ‘civilized’, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers; Paradoxically, when PIL became geographically internationalised through the expansion of the European empires, it became less universalist and more a reflection of European values; The differences between ‘civilized’ European societies and its ‘uncivilized’ others became also differences between sovereign European states and non-European non-sovereign entities; The denial of sovereign status justified the dismissal of many claims under PIL against occupation, but also justified the project of transforming non-European entities according to the model of civilized European societies (so that they could be one day included in the “international society”); Independence of Latin America. 20th century: World War I (1914-18) undermined the foundations of European civilisation. Universally accepted assumptions of progress were increasingly doubted; Peace Treaty (1919) – creation of the League of Nations, the predecessor of the contemporary United Nations system; 11 Public International Law Idea of the need of new institutions to preserve and secure peace. The League consisted of an Assembly and an executive Council, but it was weak: absence of the United States and the Soviet Union for most of its life, so it remained, basically, a European organisation; The Permanent Court of International Justice was set up in 1921, at The Hague (it was succeeded in 1946 by the International Court of Justice); The Mandate System: colonies of the defeated powers were to be administered by the Allies ‘for the benefit of their inhabitants’, rather than being annexed outright; Aim to ensure the “well-being and development” of the Middle East, Africa and the Pacific. Under the Allies’ administration, the idea was to help them achieving “self-government” and integration in the international realm as sovereign nation-states; The meaning of non-European sovereignty was now shaped by a difference made between the backward and the advanced: non-European territories could become sovereign if they fulfilled an allegedly universal standard of economic development. Post World War II: After the trauma of the Second World War, the League was succeeded in 1946 by the United Nations Organization; It established its site at New York, reflecting the realities of the shift of power away from Europe, and determination to become a truly universal institution; The processes of decolonization started. Practice of ‘mandate territories’ continued by the United Nations as trusteeships (until 1994); The General Assembly of the United Nations currently has 193 member states; Most former colonies gained independence and sovereignty, but the global economic relations continued to be unequal; 12 Public International Law PIL is, in part, the legal system regulating the global economy; Institutions such as the World Trade Organisation (WTO) or the International Monetary Fund (IMF) have been established to regulate aspects of economic life. 13 Public International Law Sources of PIL State sovereignty allows States to determine PIL rules and the process of law making. But, by creating rules, States also agree to impose restrictions on their sovereignty. States are the main law-makers in PIL, but entities like NGOs, IOs or large companies are, increasingly, important actors on the global level. PIL does not have a general treaty on the procedures of making PIL and types of sources. However, the Statute of the ICJ has a list of instruments that the Court may apply in deciding cases. This is a starting point for discussion, not an exhaustive list. Actually, there isn’t any rigid hierarchy of sources for PIL. 1. States as the main law-makers in PIL: early positions of the PCIJ Post WW I, the Versailles Treaty was celebrated, and the victorious powers told Germany to consent. Under the treaty, the Kiel Canal was declared an international waterway; Germany could not block the passage of any ship, except in times of war. At some point, Germany refused access to the steamer Wimbledon (flying the English flag, chartered by a French company). France, the UK, Italy and Japan, joined by Poland, claimed that Germany violated the Versailles Treaty. This was the origin for de the PCIJ case known as the Wimbledon Case (Wimbledon et al. v. Germany, 1923). One of Germany's counter-arguments was that the Versailles Treaty was difficult to reconcile with sovereignty (Germany was not allowed to participate in the drafting of the treaty). The Court rejected Germany's argument. PIL and sovereignty go hand in hand: ‘the right of entering into international engagements is an attribute of State sovereignty’; concluding a treaty can place restrictions on the exercise of sovereign rights. Another case was the Lotus Case in 1927. In August 1926, 2 ships, Boz-Kourt (flying the Turkish flag) and Lotus (French), collided on the high seas off the Turkish coast. Boz-Kourt was cut in two and 8 Turkish nationals died. Turkish authorities started criminal proceedings against the captains of the 2 ships. Both were found guilty by the Criminal Court of Istanbul. The French claimed that Turkey lacked jurisdiction to prosecute a foreigner, a French citizen, for acts committed outside Turkish territory. Turkey and France agreed to go before PCIJ. The question was whether Turkey, in instituting proceedings against the French captain, had acted in conflict with PIL. “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 [customs] generally accepted as expressing principles of law [...] Restrictions upon the independence of States cannot therefore be presumed”. So restrictions of sovereignty (the prohibitive rules) are mainly based on States’ consent. The PCIJ concluded that there wasn’t any prohibition of initiating proceedings against foreign citizens in any treaty or customs, so Turkey didn’t violate PIL. Turkey was free to prosecute a foreigner for acts committed outside Turkish territory. This revels the idea of PIL as a permissive system; behaviour considered permitted unless/until it is prohibited and prohibitions are mainly based on consent. Despite this, there are some exceptions: for example, committing genocide is wrong, even for those states that have never accepted the prohibition of genocide (jus cogens, see below). 14 Public International Law 2. Outline of sources of PIL: art.º 38 Statute ICJ “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.” Two elements of hierarchy can be seen in article 38: It says that judicial decisions and the writings of the most highly qualified publicists as subsidiary means. It also makes a reference to article 59 – decisions only binding the parties to the dispute. This makes clear that judicial decisions have no precedent effect in PIL; There’s also a general agreement between international lawyers that the function of general principles of law is to fill gaps (when there’s neither an applicable treaty nor an applicable rule of international customary law). ⸫ Treaties and international customary law appear to be the most important. Customary law and treaties are usually understood as not in a hierarchical relationship. The two can supersede each other. Many treaties between two or more states can provide for derogations to existing customary rules (lex specialis derogat generalis) and a new customary rule can modify the interpretation/application of a previous Treaty (lex posterior derogat priori). Nevertheless, the two can also exist independently alongside each other, the treaty being applicable only to the states that are parties to it, while customary law is binding upon all states (except ‘persistent objector’). An example of this is the case of Nicaragua, in 1986 (reservation to a multilateral treaty considered as having no impact on customary international law). Elements of hierarchy outside art.º 38: Art.º 53 Vienna Convention on the Law of Treaties – refers to jus cogens norms (norms that States cannot breach, no possible derogations); «norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”; Art.º 103 U.N. Charter – the Charter prevails over other international treaties. 15 Public International Law Treaties This will be discussed more in depth during session on ‘Law of Treaties’. Treaty = an international agreement concluded between States in writing (no oral treaty) and governed by PIL (touches on or deals with sovereignty of States, consent). It contains legal rights and duties. Treaties can be bilateral (two States) or multilateral (many States). Treaties may be between States and international organizations or between international organizations. Over centuries, customary international rules have developed on the conclusion of treaties, their effects and application, their validity and their termination. These rules were codified in the Vienna Convention on Law of Treaties (1969), which regulates treaties concluded between States. International Customary Law (ICL) ICL is based on States’ practices. The art.º 38 of the ICJ Statute defines customary law as evidence of a general practice accepted as law. So, we can identify two main conditions: There must be a general practice; This general practice must be accepted as law (opinio juris, belief of a legal obligation). General Principles of Law We can read “recognized by civilized nations” in the art.º 38 of the ICJ Statute. Is there something wrong with this expression? It is a throwback to the early 20th century, when it was still common to distinguish between civilized and not so civilized nations. Nowadays, this distinction is not so much used and there are other distinctions (liberal/illiberal, developed/developing). The general principles of law have been seen as useful to fill in possible gaps in the law, if there is no applicable customary rule or treaty provision. Sometimes they are used with other sources to insist on their force, like international customary law. The ICJ rarely uses this source alone for deciding a case. Unilateral Declarations It consists on a unilateral promise made by a State to another State or States. The effect of the State’s promise is to restrict its sovereignty, but the promise can be retracted. An example of this is the Nuclear Tests case, Australia and New Zealand vs, France, 1974. France started nuclear testing in French Polynesia and some of the fall-out landed in Australia and New Zealand. They asked the Court to order France to stop testing. Was there an international rule against nuclear testing? Binding on France? There wasn’t such a general law, but France was bound by its own statements (officials promised that nuclear testing would ‘soon come to an end’). 3. The specific issues of the International Customary Law It is possible to have regional/local customary law (to be distinguished from general customary international law). In 1950, there was the Asylum case, Colombia vs. Peru, where Colombia claimed that there was a regional 16 Public International Law custom specific to Latin American states on decisions to grant asylum to foreign nationals, and there was also, in 1960, the Rights of Passage over Indian Territory, Portugal vs. India (passage of considerable time). The number of occurrences will depend on the area: space law for example, would not require too many occurrences since there are few space activities. In opposition, regarding the law of the sea, more practice would be necessary. Whose practice? What matters in particular is that those states whose interests are especially affected (North Sea case, notion of ‘representative’) by a customary rule participate in its making (e.g. on law of the sea: landlocked states like Austria and Switzerland will not have much practice when it comes to maritime affairs, so they would not count much). Charles de Visscher (ICJ judge): there are always ‘some who mark the soil more deeply with their footprints than others, either because of their weight, which is to say their power in this world, or because their interests bring them more frequently this way’. Usually, law is separated from other normative control systems, such as morality, or legally justified behaviour is separated from merely political behaviour. Even so, often, but not always, opinio juris is inseparable from state practice in terms of evidence – enacting a law, concluding a treaty, engaging in a legal practice. It is generally accepted that resolutions adopted by international organizations (even if they might not be formally binding) or at international conferences may reflect opinio juris. In relation to customary international law and consent of states, the last one is tacit/implied (in opposition to what happens with treaties). Doctrine of Persistent Objector – if a state notices a new rule of customary law in the process of being created, and it feels unable to accept it, it should make its opposition known. By objecting persistently, the state can ensure that it does not become bound. If many states object persistently, together, they can prevent the rule from coming into being. ICJ Anglo-Norwegian Fisheries case, 1951: An english fishermen was arrested for fishing in Norway's territorial sea. UK started proceedings before the ICJ; Question of whether Norway could delimit its maritime zones, not by measuring directly from the coastline, but by drawing straight, artificial baselines from the outer edges of a number of islands and rocks in front of the coast (skjaergaard). This way, Norway increased the width of its maritime zones; UK argument: Norway wasn’t following the usual practice of States (using a different method of delimitation of maritime zone); Violation of a customary rule? 17 Public International Law Norway argued that it engaged for many years in the drawing of straight baselines, announced this to the world in various royal decrees (1812-1935) and at various international meetings. The idea was that, even if there was a different customary law, they had never accepted it; ICJ: State practice must be “both extensive and virtually uniform” for it to form a new general customary rule; Here the practice was considered as not amounting to a general customary rule, but had it been one it would not have been binding on Norway anyway because it always opposed its application to its coast. ICJ, North Sea Continental Shelf Case, 1969: Issue: how should States measure their continental shelf areas; Delimitation of continental shelf areas between Germany & Denmark & Germany & Netherlands; Denmark & Netherlands wanted equidistance method and Germany wanted just an equitable principle. Germany’s coastline was concave and the equidistance principle would mean having a small portion of the North Sea. Continental Shelves, some background: o Continental shelf of a coastal State is submerged prolongation of the land territory of the coastal State; o It is valuable because it has potential natural resources for coastal State (such as oil and natural gas); o The nature of the continental shelf can vary from State to State (in some States the sea floor falls sharply); o US President Harry Truman, proclamation 1945 that continental shelf off the US coast would fall under the jurisdiction of the USA. Breaking international law? (at that time the continental shelf and water above it = as the high seas); o Other states followed. The UK made similar claims on behalf of Jamaica and the Bahamas. Various states in Latin America and in the Persian Gulf area followed suit; o The continental shelf became the topic of a multilateral convention, so became law. Geneva Convention, 1958, says that the equidistance principle should be applied if States don’t agree on the method for delimitation or if special circumstances existed; Germany signed, but did not ratify the Geneva Convention, 1958; 18 Public International Law The Netherlands & Denmark argued that Germany was bound by the equidistance principle anyway; The ICJ rejected such claims; Argument: art.º 6 (equidistance) reflects customary principle of international law; ICJ held that principle of equidistance did not form a part of existing or emerging customary law at the time of drafting Convention; Drafters hesitated on the inclusion of art.º 6 and reservations to it were permissible; Did it attain a customary principle status after Convention entered into force? Did enough States ratify the Convention accepting art.º 6? ICJ held that for a general customary rule to emerge out it was necessary for: o Extensive practice. Here practice related to the Convention, need to prove very widespread and representative participation in Convention, including States whose interests were specially affected i.e. Coastal States; o Virtually uniform practice (i.e. consistent and uniform usage); o Practice demonstrating general recognition of rule of law or legal obligation i.e. opinio juris. ICJ also held that passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law; ICJ found that at the time of the drafting of the Convention: o There wasn’t a very widespread and representative participation in the Convention with 39 States ratifying; o There was not a uniform practice (i.e. consistent and uniform usage); o There was no General recognition of rule of law or legal obligation i.e. opinio juris – no proof of States’ belief of a legal duty to act or refrain from acting. What about subsequent State practice (after Treaty ratified)? ICJ examined 15 cases of use equidistance method after Convention entered into force; Even if there was practice, the ICJ found that there was no evidence of opinio juris; ICJ held that Germany wasn’t bound by the equidistance principle, either by way of treaty or customary law. 19 Public International Law Subjects of PIL It is through the idea of subjects that rights and obligations under PIL are allocated (see if an entity possesses rights and obligations under PIL). The main subjects of PIL are states (for centuries states were the only subjects of PIL). Currently intergovernmental organisations (the UN, the EU, the IMF, the WTO…) are also subjects of PIL. What about other entities? PIL has no formal criteria for admission to ‘subject status’ or international legal personality, but now individuals are also increasingly seen as subjects of international law (having rights, especially human rights, but also a few obligations, especially under International Criminal Law). 1. States As it was said above, states are main subjects of PIL and they are sovereign (ie they don’t need to accept any authority from above or from anyone else in order to govern their internal and external affairs, unless they choose to do so). States are a relatively recent phenomenon, considering that, in the Middle Ages and a bit after, city-states were the dominant form of political organization. The criteria of statehood have often derived from a convention concluded in the 1930s, in Montevideo – the American Convention on Statehood. This is the starting point for discussion of statehood, and it is often used as codifying customary international law, even if parties were the American states and if many would agree that Montevideo list is incomplete and outdated. It has four criteria: a population, a territory, a government and the capacity to enter into relations with other states. The opinion of the Arbitration Commission of the European Conference on Yugoslavia, an arbitration body set up by the European Economic Community, in 1991, to provide legal advice to the Conference on Yugoslavia, was that “the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority” + “such a state is characterized by sovereignty”. 1st criterion – Population – it is irrelevant whether the population is large (China, India) or small (Nauru, San Marino). The existing small states have attributes of statehood, even if they sometimes ‘outsource’ some of state’s tasks (e.g. Liechtenstein’s defence tasks are handled by Switzerland, but this doesn’t diminish Liechtenstein’s statehood). 2nd criterion – Territory – without territory, there is no state. It isn’t necessary that a territory is completely fixed; a core territory is enough even if boundaries are disputed. Many states have boundary disputes with their neighbours (Israel for ex.). There isn’t a minimum or maximum sizes. The notion of territory encompasses internal waters and the territorial sea. How is territory ‘acquired’? Doctrine of ‘discovery’ and ‘terra nullius’ – idea that discovered territory was uninhabited or that original inhabitants were of “lesser status” than their European discoverers (travels of Columbus, Magellan, Vespucci, Tasman etc); 20 Public International Law This doctrine is no longer accepted, because more emphasis was later put on actual possession and effective government. Today, the use of force (occupation/annexation through force) is prohibited under PIL, so military conquest is unlikely to become title to territory. BUT conquest with a generally accepted exercise of authority over time can become title and the re-drawing of boundaries is common after major wars (e.g. USA enlarged its territory after disputes with Spain and, later, Mexico). Cession – one state handing over territory to another, usually in exchange for a sum of money or, on occasion, for another piece of territory; Ex.: the sale of Alaska by Russia to the USA in 1867; the 1803 Louisiana Purchase by which the USA acquired almost a quarter of its current territory from the French; the Dutch selling New Amsterdam (now New York) to the British in exchange of a part of Indonesia and what is today Surinam; Cession as peaceful? Part of the colonization of Africa in the late nineteenth century involved cession. Native rulers ceded their territories to the European newcomers, sometimes in exchange for European backing of their own claims to local power. So, cession can play a forceful role in oppression... Cession and secession are different things. Cession – an act carried out by a state who gives part of its territory away. Secession – a bottom-up process, where it is granted to parts of a state the right to secede from the larger entity. Territory can be leased – thus, the UK leased Hong Kong from China, and the USA has leased Guantanamo Bay from Cuba. The basic idea with such a construction is that sovereignty is separated from the exercise of sovereign acts. So, Hong Kong remained Chinese territory (and would revert back to China in 1997), but sovereign acts would be performed by the UK. 3rd criterion – Effective Government – if a territory lacks effective government, there’s no one to contact or hold responsible. A state is accepted only when it can guarantee that law and order, in whatever form, will be upheld. But no specific form of government is prescribed. Dictatorships are treated in the same way as democracies. There were past attempts to influence the form of government (e.g. 19th century distinction civilized vs. uncivilized states). If a government is established, subsequent absence of governmental authority, doesn’t affect the existing State’s right to be considered as a State. What do you think about the idea of recognizing only liberal democracies as proper states and exclude non- liberal regimes? Is the Effective Government still a requirement today? The ex-Yugoslavia Croatia and Bosnia-Herzegovina were recognized as independent states by the EU (EC at that time) member states and admitted to the UN when non- governmental forces in both states controlled important parts of territories in civil war conditions. In such situations “lack of effective central control might be balanced by significant international recognition, culminating in membership of the U.N.” (Shaw). 21 Public International Law 4th criterion – Capacity to enter into international relations – many authors agree that it boils down to independence, because, if a state isn’t able to create legal relations with other units, such as states or international organizations, there is no independence. For example, in the days of colonialism, colonized territories weren’t usually considered capable of entering into relations with other states without consent from the metropolitan state. This can also be helpful to understand federal states. Recognition is also referred to by the Montevideo Convention, but not as one of the 4 requirements. There’s a rather declarative idea of recognition, providing that recognition was of no legal relevance whatsoever. This is the most complicated and the most politicized aspect of statehood. There are two theories of recognition: the declarative and the constitutive. The constitutive theory of recognition (as opposed to declarative) consists of the idea that, since the community of states is essentially a political community, membership is dependent on the acceptance by existing members. So, recognition would be vital; even if all four requirements are met, an unrecognized entity would have a hard time existing. Example of Biafra: In 1967 it proclaimed independence after a bloody war of secession with Nigeria, only to discover that it did not meet with recognition from more than a handful of states – and within three years after proclaiming independence, Biafra became a part of Nigeria again. Lawyers tend to prefer the declaratory theory (stripping the law from political elements), but the constitutive theory may be stronger in practice. The “legal criteria offer some guidance (and few entities are recognized without scoring… well on some of the requirements), but (…) decisions on whether to recognize or not are eminently political decisions” (Klabbers) Sometimes what matters is the sort of government that the new state has. Example: after WW II, Germany was divided in two, the Federal Republic of Germany (FRG, West Germany) and the German Democratic Republic (GDR, East Germany); communist states were reluctant to recognize the FRG, even if meeting statehood criteria, but Western states were reluctant to recognize the GDR. In principle, recognition is a unilateral act, affecting bilateral relations. But it’s usually accepted that admission into the UN marks something like a collective recognition (accepted as a legitimate member of the community of states, approval by at least 2/3rd of the UN's member states including the 5 major powers on the Security Council). Even if there isn’t a formal individual recognition by each and every UN member state. Recognised and partially recognised states today: There are 193 UN members who recognise each other as States; The Vatican State and Palestine are UN observerers; they have the capacity to participate, such as a right to speak, but they have no voting or resolution making powers; There are 6 States with partial recognition – aiwan, Western Sahara (Morocco) Kosovo (Serbia), South Ossetia, Abkhazia (Georgia) & Northern Cyprus (Cyprus). Differing numbers of States recognise these as States. Unrecognised de facto States: Nagorno-Karabakh (Azerbaijan), Transnistria (Moldova), Somaliland (Somalia); Donetsk People’s Republic & Lugansk People’s Republic ? As of 21/02/2022: recognised by Russia. 22 Public International Law Case of Kosovo (partially recognised): Was part of the Socialist Federal Republic of Yugoslavia (SFRY) and, after the break-up, of Serbia; Heterogeneous population. Ethnic cleansing, NATO air forces bombed Serbia with the aim of forcing it to stop in 1999; Kosovo was administered for a while by the UN Mission in Kosovo (UNMIK) and declared its independence in 2008; In 2020, Kosovo was recognized by almost 100 states and by Taiwan (including the USA, the UK, Germany and France; NOT Russia and China); China and Russia have not recognized Kosovo as an independent state, nor has Serbia; The recognition of the state being seceded from (here Serbia) is of major importance in cases of secession; Little relevance of the circumstance that Kosovo has declared independence; ICJ found that such unilateral declarations of independence are not unlawful under PIL but refrained from going any further (Accordance of International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion ). Effects of recognition? Treaty relations take place with or without recognition. So the legal effects of recognition are not so much on the level of treaty relations. However, it does affect mostly the lives of individuals. So, if a state has not recognized another, possibly passports, marriages or other administrative acts performed under that State’s law will not be accepted as valid. But validity abroad does not depend only on recognition – in the 1970s, Haiti (recognized by USA) was famous for Americans getting a divorce more easily than in the USA, but later ‘Haitian divorce’ was not always accepted in the USA. 2. Continuity and change of statehood – Principle of continuity of statehood Once a state exists, there is a strong presumption that it will continue to exist. The reduced effectiveness of government does not affect its statehood. During 2011– 2012, for example, Belgium was without a government for more than a year following its latest elections (instability/ineffectiveness). There are 4 main methods of change of statehood: Secession – formation of a new state A through ‘amputation’ of part of state B’s territory; B continues to exist under the same name and with the same legal identity but with a reduced territory; Ex.: secession of South Sudan from Sudan, secession of Bangladesh from Pakistan; often after wars. 23 Public International Law Decolonisation – some include it in secession, but former colonies are distant territories, not contiguous with the metropolitan area; Ex.: more than 100 colonies turned independent between the 1950s-1960s. (Re)unification – states merge or unite or, if they already formed a unity earlier, reunite. Formation of a single state through regrouping of 2 or more states that give up their sovereignty to the benefit of the first; Ex.: constitution of the USA in 1787, of Tanzania in 1964 (Tanganyka & Zanzibar), Yemen (a merger of North Yemen and South Yemen since 1990). Arguably Germany: absorption of former GDR into FRG (treaties of FRG continued). Dissolution – state A is dissolved into 2 or several new states replacing state A, which ceases to exist; Ex.: Czechoslovakia (breakdown in 1993 into 2 states: Czech Republic and Slovakia); USSR? Russia was seen, exceptionally, as legal continuation of the USSR with smaller territory and different name but the same entity, so that it can keep safely its membership in the UN Security Council (more like secession from Russia’s point of view); but the other states of the ex-USSR were treated in terms of dissolution. The issue of state succession State succession refers to the situation of new states (‘successor states’) and their relationship with previous (predecessor) states. Would a treaty concluded by the former USSR continue to bind successor states, such as Belarus or Moldova? Where a state exists in continuity with a previous state, this is not an issue (it is bound by previously concluded treaties). Which of the four forms of transformation of statehood is concerned by the situation of succession? Secession, decolonization, dissolution, unification. Think of arguments pro and contra successor states being bound by treaties concluded by predecessor states? Human rights treaties: protected on Monday but not on Tuesday because of state succession? Disarmament treaties? On the other hand, why would new states be under legal obligations that those states never consented to? 1978 Vienna Convention on Succession of States in Respect of Treaties: Entered into force in 1996 and, in July 2011, it had only 22 parties so far; It establishes some principles in relation to treaties: o Newly independent states (i.e. former colonies, but not states that have seceded from neighbouring states) may start their existence with a ‘clean slate’; o In cases of merger or unification, the presumption is that existing treaties continue to remain in force (article 31), unless the parties concerned agree on a different solution, and much the same applies to a separation (be it secession or dissolution), under article 34. State successions do not affect boundary treaties or ‘other territorial regimes’ (art.º 11 and 12); 24 Public International Law The convention is without prejudice to questions arising from military occupation (art.º 40); Vienna Convention covers treaties, but not customary international law (customary HR?) or other sources (Security Council sanctions?); Practice: states often decide on the basis of agreement, reached against the background provided by the convention. 25 Public International Law The Individual in PIL and Human Rights Protection In early PIL, the dominant position was that individuals were not subjects of PIL – they weren’t considered capable of bearing rights and obligations under PIL. So, under PIL, States could treat their citizens as they pleased. There were only some basic international rules to be respected regarding citizens of other states. Individuals nowadays enjoy rights under PIL: International Human Rights law, International Refugee Law. But also, individuals are seen as members of social groups other than states: as peoples, minorities or indigenous peoples. Individuals might also have obligations under PIL: the emergence of international criminal tribunals, allowing to prosecute individuals (war crimes, genocide). 1. The emergence and development of International Human Rights Law By the end of the 19th century, progressively, all Western States enacted domestic legislation to abolish the slave trade (US, UK , then others). These was due to partly humanitarian reasons, partly for creating the conditions for global competition. Prohibition of slavery on the international level: 1885 General Act of the Berlin Conference (‘scramble for Africa’) – provision that slave trading prohibited in PIL, and that the African territories ‘may not be used as a market or means of transit for the trade in slaves’; 1890 Brussels Conference, devoted to ending slave trade by land and sea; 1926 Slavery Convention concluded under auspices of the League of Nations, condemning slavery and the trade in slaves. The protection of minorities started with: League of Nations – first instruments for the protection of minorities (group-based rights); Versailles Peace after the WWI – the map of Europe was redrawn and the new boundaries included ethnic minorities, or the new states created were composed of different ethnic groups (e.g. 1918 Kingdom of Serbs, Croats and Slovenes); Conclusion of treaties for the protection of national minorities; states were allowed to join the League of Nations only if committed to minority protection. Minorities treaties and the Slavery Convention could be seen as protecting human beings as groups. Later, additional group rights were recognized but they also shifted to the individuals. Post WWII, in 1948 the Genocide Convention was ratified. Following the Holocaust, the resolution of the General Assembly against genocide was followed by a convention. This aim to prevent and punish genocide, defined as committing violent acts ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. It is really after WWII that we started to see an increasing shift to individuals. Humans weren’t just members of groups, but individuals in their own right. From this point on, this was the main conception in international human rights law. 26 Public International Law The idea (against totalitarianism) was that individuals needed to be protected against their own governments. So, the dominant understanding of human rights was that they could be applied in relations between government and governed (not relations between individuals). More recently, the idea is that human rights can also play a role in private relations. Human Rights in the U.N. Framework The UN Charter contains only a few references to human rights. Art.º 55 and 56 Charter provide the UN with the tools to formulate human rights policies. The real breakthrough was in 1948, when the General Assembly adopted the Universal Declaration of Human Rights. Adopted as a resolution, the Universal Declaration isn’t technically legally binding, but it has a huge influence. The UDHR contains a set of rights said to be of a universal character. Classic notions like the freedom of expression, of religion and of assembly, but also less obvious ones (as the right to have paid holidays). The Universal Declaration was given more force with 2 treaties negotiated under the UN: the ICCPR (implementation overseen by HR Committee) and the ICESCR (overseen by Committee on ESCR). These are the two UN international covenants (1966). The decisions of both Committees aren’t binding. Why 2 documents? The Cold War had its origin in a political division that started after 1948. Western states emphasized classic civil and political rights, like freedom of expression, the prohibition of torture, right to liberty & security (allow people to be free and take part in democratic politics; origins in US and French Revolutions). This was followed by critiques by the Communist bloc: argument of primacy of economic, social and cultural rights. Some developing countries shared the same view. 2. Difference between civil and political rights and social, economic and cultural rights As it was said above, the distinction gained relevance with the cold war. The western states had systems that protected in first hand the civil and political rights; different was what happened in the communist bloc, that promoted the primacy of economic, social and cultural rights. Civil and political rights do not require government action. Prohibition of torture requires states to abstain from torture. Freedom of religion requires states not to interfere when people exercise religion. Economic, social and cultural rights, such as the right to housing, education, demand that states actively initiate policies (e.g. building schools). However, this isn’t that clear. Freedom of religion may also imply that states sponsor the building of places of worship for religious minorities, and the prohibition of torture means that police officers must be instructed and trained in how to behave properly. Still, the distinction is of some relevance. Civil and political rights can be formulated with greater precision and be enforced more easily. It’s harder to enforce a provision that ‘States shall, within their resources, ensure adequate housing’. The division between civil and political rights and socio-economic rights also became manifest in Europe. In 1950, Western European states conclude the European Convention on Human Rights (ECHR) with mainly a set of political and civil rights. It was only in 1962 that a (fairly limited) set of social rights would follow, in the form of 27 Public International Law the European Social Charter. ESC – weaker than ECHR (e.g. no individual complaints, only collective complaints, e.g. NGOs). 3. International and regional human rights instruments Some treaties were concluded in relation only to a single right or aiming to protect specific sets of individuals. There are also specialized conventions: against torture, against racial discrimination, against discrimination of women, and on the rights of migrant workers; the Convention on the Rights of the Child. The European Convention of Human Rights It is possibly the most developed system of human rights protection. Joining the ECHR means accepting the jurisdiction of the ECtHR. It has decided an important number of cases and has jurisdiction over inter-state complaints (very few – 24 in total) and complaints made by individuals against a State (many cases). Looking at the art.º 3, torture prohibition is generally considered absolute (‘non-derogable’). In opposition, there are possible exceptions for classic freedoms, provided they do so by law and that doing so is ‘necessary in a democratic society’. It makes some sense: freedom of expression should not become freedom to incite racial hatred; freedom of assembly cannot mean the freedom to plot against a democratically elected government. States are also allowed to declare a state of emergency, which results in the suspension of some of the rights guaranteed in the convention. The Inter-American Human Rights System It is an organization of American States from North, South, and Central America and the Caribbean. The American Convention on Human Rights was signed in 1969 and it entered into force in 1978. The main institutions of the IAHRS are the Inter-American Commission on HR (1959) and the Inter-American Court of HR (1979). It has 24 member states, out of which 20 accepted the contentious jurisdiction of the IACtHR. Unlike the European Court of HR, individuals cannot access the Court directly. All individual complaints must first go through the Inter-American Commission of HR, which may then decide to refer the case to the Court. 28 Public International Law African Human Rights System African Union (53 member states); The African Charter on Human and Peoples’ Rights entered into force in 1986; African Commission on Human and Peoples’ Rights (ACHPR); The African Court on Human and Peoples’ Rights rules on African Union states’ in compliance with the African Charter on Human and Peoples’ Rights: o The protocol for the creation of a Court was signed in 1998, to complement a previously existing Commission on Human’s and People’s Rights. It entered into force in 2004 and the first judgment issues were in 2009; o 32 Member States have ratified the Protocol on African Court; o Out of these, only 8 States have accepted the competence of the Court according to its Art.º 34 (6), according to which individuals and NGOs can directly file cases to the African Court; o For the other states, the application is to be submitted to the Commission first, which may then decide to refer the case to the Court. ASEAN System The ASEAN (Association of South-East Nations) was created in 1967. Five founding Member States signed the ASEAN Declaration – Indonesia, Malaysia, the Philippines, Singapore, Thailand –, motivated by a common fear of communism. Now it has 10 Member States (Brunei, Vietnam, Laos, Myanmar, Cambodia). Initially, it was an economic union, but it moved progressively beyond the economic sphere. In 2008, the Member States elaborated a Charter. In 2009, the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) took place. In 2012, the ASEAN Human Rights Declaration was drafted. It is criticized by many as being ‘too relativist’ and as allowing too many restrictions to HR. Here we have to remember that in the Vienna World Conference on HR (1993) there was an agreement of all states that HR were universal, indivisible and interdependent. 4. Self-determination as a Group Right Individuals who share an ethnic or linguistic background may come to be seen – or regard themselves – as minorities, as a people or indigenous people. The minorities were already briefly mentioned, so here we are going to focus on “a people”. Definition of Self-Determination – is now understood as referring to the right of identifiable groups to determine for themselves how they wish to be politically organized. It is mentioned in the UN Charter (art.º 1/2 and art.º 55), but it had a different meaning then – non-interference in the internal affairs of States. This is a contradiction since the UN Charter also recognises the existence of a ‘trusteeship’ system and ‘non-self-governing territories’. Non-self-governing territories under the UN Charter, chapter XI – «Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure 29 Public International Law of self-government” would have a series of obligations, including “to develop self-government, to [consider] the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions”. Trust territories under the UN Charter, chapter XII – territories falling in a specific list of categories placed under UN authority by means of trusteeship agreements (former mandates of the League of Nations, territories taken from defeated states at the end of WWII). The trust territories have all attained self-government now; the last one was Palau (admitted in the UN in 1994). When it comes to the non-self-governing territories, initially, Member States were the ones to designate such territories, but later the General Assembly established some criteria for identifying them as such (without necessarily having the agreement of the State which administered it). Non-Self-Governing Territories Today UN General Assembly Resolution 1514 (1960) Was a largely initiative of newly independent States (1945-1960). The ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ had the objective of putting an end to colonialism. Article 2: “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.” (no longer understood as non- interference in the internal affairs of States). “Subjection of peoples to alien subjugation, domination and exploitation “ – violation of the principle of self- determination. Idea that colonialism impedes the economic development of dependent peoples and that self- determination requires the recognition of the nation-state as a universal form of political organisation. Shortly after this Resolution, another Resolution was adopted in 1961 at the initiative of the USA with a programme of ‘development aid’. 30 Public International Law There is some criteria for defining situation of “subjection of peoples to alien subjugation, domination and exploitation”. Prima facie: “territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it”. Also “once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These may be, inter alia, of an administrative, political, juridical, economic or historical nature.” [especially] If they affect the relationship between the metropolitan State and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination. Uti Possidetis as Limit Principle that new States that come to independence retain the same borders that they had when they were administrative units within the territory of colonial powers; Colonial frontiers existing at the moment of decolonization as intangible; Attempt to prevent territorial disputes; Fixing the territorial heritage of new States at the moment of independence and converting existing lines into internationally recognized borders. ICJ Frontier Dispute (Burkina Faso/Republic of Mali) : Question of the delimitation of part of the land frontier between the two States. Armed forces deployed by the two countries; Principle of uti possidetis stated in a Resolution of the Organization of African Unity of 1964; ICJ affirmed that it is “a general principle”; When boundaries were delimitations between different administrative divisions or colonies all subject to the same sovereign, the principle of uti possidetis juris demands their transformation into international frontiers. Increasing Recognition of Self-Determination Peoples’ right to self-determination was later enshrined in the two UN human rights Covenants of 1966. It was also confirmed as one of the main principles of PIL in a Declaration of Principles adopted by the General Assembly 2625 in 1970. Under this Declaration, self-determination can take the form of independent statehood, association or integration with another state, or some other political status ‘freely determined by a people’. So, these are the ways of implementing the right to self-determination. Insists on free will of people (e.g. referendum). Self-determination is generally considered a rule of customary international law, and the ICJ has referred to self-determination as an erga omnes principle (East Timor Case (Portugal v. Australia)). ICJ East Timor Case (Portugal v. Australia): 31 Public International Law Dispute between Portugal and Australia concerning East Timor. Former Portuguese colony, later partly dominated by the Netherlands and part of Indonesia; GA Resolution recognised East Timor as a non-self-governing territory; Portuguese authorities left the island in 1975. When they did so, Indonesia took control over it; Indonesia concluded an agreement with Australia for the common exploitation of island’s natural resources; Action by Portugal before the ICJ asking it to recognise that “Australia failed to observe... the obligation to respect the duties and powers of [Portugal as] the administering Power [of East Timor]... and... the right of the people of East Timor to self-determination and the related rights“; ICJ decided it had no jurisdiction over the case because the dispute affected Indonesia (did not accept the compulsory jurisdiction of the ICJ and was not party to the dispute); Deciding over this dispute would amount to deciding which of the two states – Indonesia or Portugal – had power to conclude treaties on behalf of East Timor; However, the Court seizes this opportunity to affirm that self-determination has an erga omnes character; ICJ however confirmed that East Timor was non-self-governing and that its people had a right to self-determination; The UN organised a referendum in 1999 for East Timor’s right to self-determination; Independence gained in 2002. Persisting Issues Identification of the ‘self’ (people) – whom to consider as being covered by such right? Groups sharing the same language, ethnicity or history (objective factors)? But Australians and Americans? ‘Subjective’ factors? Is a people recognized as such if this is the group's self-identification? But what if the group includes individuals who do not feel the same way? Should their individual self-determination give way to the collective feeling? The 2nd problem with self-determination is that it is related to secession, which involves change of statehood. Difficult to reconcile with the principle of ‘uti possidetis’ (‘as you possess, so you possess’). Emerging states presumptively inherit their pre-independence administrative boundaries? With the exception of decolonization, PIL is reluctant to break up existing states. Certainties and uncertainties in relation to self-determination It is certain that it includes the context of colonial domination. It isn’t entirely certain whether self- determination is limited to such contexts or whether it includes other contexts as well, even if the Resolutions often refer to «all peoples». BUT: Self-determination applied to Palestine both by the UN General Assembly and the the UN: Resolution 3236, ICJ Advisory Opinion 2004; 32 Public International Law ICJ 2004, opinion on the legal consequences of the construction of the wall: "…construction [of the Wall], along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right"; Also application to the “people of South Africa” in the context of apartheid policies: Security Council Resolution 1970 referred to the right of the people of South Africa to self-determination and recognized their struggle against apartheid. Apartheid also considered as a crime against humanity; Kosovo? South Ossetia and Abkhazia? 33 Public International Law The Law of Treaties 1. The Vienna Conventions The Vienna Convention on the Law of Treaties, between states, was ratified in 1969 and entered into force in 1980. To a large extent, it reflects customary international law, but with some novelties, like the notion of jus cogens. For Treaties concluded between international organizations (or between a state and an international organization), there is the Vienna Convention, ratified in 1986. It isn’t in force, but it was largely thought to reflect customary international law. It is very similar to the 1969 convention. Most of the rules of the Vienna Convention (1969) are residual in nature, which means that states are free to depart from them by mutual agreement. There are two basic principles: (1) treaties need to be based on the free consent of states and (2) freedom of states is not unlimited – once the consent is expressed and the treaty entered into force, the treaty shall be kept by the parties in good faith – pacta sunt servanda. PCIJ 1923, Wimbledon case: treaty-making as an emanation of sovereignty. 2. The Concept of Treaty Treaties are agreements in written form between states and governed by PIL, whatever the number of parties involved and whatever their particular designation (covenant, charter, treaty, pact, protocol etc.). The label ‘memorandum of understanding’ (MoU) is sometimes considered to signify an intention not to be legally bound, but, instead, to be bound merely on the political or moral level. The problem of MoUs is that they allow to circumvent domestic parliamentary participation in the conclusion of treaties (many national constitutions provide that treaties should be subjected to parliamentary approval). Isn’t the distinction between treaties and MoUs endorsed by the ICJ? Aegean Sea Continental Shelf (Greece v. Turkey) , the ICJ saw no problem in treating a press communiqué as a binding treaty possibly conferring jurisdiction on the Court; In Qatar v. Bahrain : the Court even refused to acknowledge the possibility of any alternative to the classic treaty format; idea that when states enter into commitments, the only possible form is the treaty (here objections by Bahrain's Foreign Minister that he had never intended, when concluding an agreement with Qatar, to be actually legally bound); But States do resort to MoU. 3. Conclusion of Treaties The prerogative rests with the head of state or with the heads of government. ICJ Eastern Greenland case : foreign ministers also have the power to bind their states. Verbal statement given by Norway's Foreign Minister Ihlén to Denmark that Norway would not contest Danish sovereignty over Eastern Greenland. This was consider

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