THE LEGAL CHARACTER OF THE LEGAL CHARACTER OF INTERNATIONAL LAWINTERNATIONAL LAW

Unit 25Unit 25

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DefinitionDefinition National vs. international lawNational vs. international law History and developmentHistory and development SourcesSources SubjectsSubjects AreasAreas EnforcementEnforcement Legal termsLegal terms

International law International law

International lawInternational law: a body of rules, : a body of rules, which regulate the behaviour of which regulate the behaviour of states and other entities in their states and other entities in their relations with each other, at any relations with each other, at any given timegiven time

International lawInternational law

Public Public Private international law, orPrivate international law, or conflict conflict

of laws of laws Supranational lawSupranational law

Public international lawPublic international law

LLaw of nationsaw of nations (ius gentium): (ius gentium): customary lawcustomary law thought to be held in thought to be held in common by allcommon by all nations nations in "reasoned in "reasoned compliance with standards of compliance with standards of international conductinternational conduct””..

Law of Law of international agreements international agreements and conventionsand conventions (ius inter (ius inter gentes)gentes)

Public international lawPublic international law

governs the relationship between governs the relationship between states and international entitiesstates and international entities

(treaty law, law of the sea, (treaty law, law of the sea, international criminal law, laws of international criminal law, laws of war, international humanitarian law, war, international humanitarian law, human rights law)human rights law)

Private international law/Conflict Private international law/Conflict of lawsof laws

addresses the questions of addresses the questions of (1) which (1) which courtcourt may hear a case, and may hear a case, and (2) the law concerning which (2) the law concerning which

jurisdiction applies to the issues in jurisdiction applies to the issues in the case.the case.

Supranational lawSupranational law

concerns regional agreements where concerns regional agreements where the laws of nation states may be held the laws of nation states may be held inapplicable when conflicting with a inapplicable when conflicting with a supranational legal system when that supranational legal system when that nation has a treaty obligation to a nation has a treaty obligation to a supranationalsupranational collective collective (e.g. the EU)(e.g. the EU)

History and developmentHistory and development

Rules of war and diplomatic relationsRules of war and diplomatic relations 16h and 17th centuries – 16h and 17th centuries –

development of international law development of international law coincided with the rise of secular coincided with the rise of secular sovereign states in Western Europesovereign states in Western Europe

History and developmentHistory and development

The Age of Discovery – rules relating The Age of Discovery – rules relating to validity of titles and freedom of to validity of titles and freedom of the high seasthe high seas

Today: states are in greater contact Today: states are in greater contact with each other, issues of with each other, issues of international concern demand co-international concern demand co-operation, domestic matters – operation, domestic matters – subject to external reviewsubject to external review

International vs. domestic lawInternational vs. domestic law

International law: decentralized; based on International law: decentralized; based on consent, flexibility; reciprocityconsent, flexibility; reciprocity

International executive? Legislative?International executive? Legislative? Judicature?Judicature? International Court of Justice (ICJ): International Court of Justice (ICJ):

acceptance of its jurisdiction is based on acceptance of its jurisdiction is based on consent; not mandatoryconsent; not mandatory

Domestic law: centralized and imposedDomestic law: centralized and imposed

SOURCES OF INTERNATIONAL SOURCES OF INTERNATIONAL LAWLAW

Formal SourcesFormal Sources

TreatiesTreaties

International customInternational custom

General principles of law recognised by General principles of law recognised by civilised nationscivilised nations

Material SourcesMaterial Sources

Judicial decisions and teachings of juristsJudicial decisions and teachings of jurists

Hierarchy of sourcesHierarchy of sources

Any treaty provision existing between the Any treaty provision existing between the parties to the dispute must be appliedparties to the dispute must be applied

If there is no treaty then a rule of If there is no treaty then a rule of international custominternational custom

If there is neither a prevailing treaty If there is neither a prevailing treaty provision nor a custom then general provision nor a custom then general principlesprinciples

In the absence of any of the foregoing, In the absence of any of the foregoing, judicial decisions and writingsjudicial decisions and writings

Customary international lawCustomary international law

The “common law” of the law of The “common law” of the law of nationsnations

Consists of a vast body of rules that, Consists of a vast body of rules that, until the 20th c., constituted the until the 20th c., constituted the chief body of international lawchief body of international law

TreatyTreaty

An international agreement An international agreement concluded between States in a concluded between States in a written form written form

bilateral, multilateralbilateral, multilateral Equivalent of legislation in municipal Equivalent of legislation in municipal

lawlaw

TreatyTreaty

Some treaties create law only for Some treaties create law only for those states that are parties to them, those states that are parties to them, some codify pre-existing customary some codify pre-existing customary international lawinternational law

Ratification – the approval of the Ratification – the approval of the treaty by the head of statetreaty by the head of state

General Principles of Law General Principles of Law Recognised by Civilised NationsRecognised by Civilised Nations

Actual rules of international law Actual rules of international law which are of so broad a description which are of so broad a description that they can be called principlesthat they can be called principles

Maxims of universal application in Maxims of universal application in domestic law which ought to apply in domestic law which ought to apply in the international sphere alsothe international sphere also

General principlesGeneral principles AA rule of good faith in international obligations ( rule of good faith in international obligations (pacta sunt pacta sunt

servandaservanda ‘agreements must be kept’): ‘agreements must be kept’): international treaties international treaties should be upheld by all the signatories. The basis of good faith should be upheld by all the signatories. The basis of good faith indicates that a party to the treaty cannot invoke provisions of its indicates that a party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. The only domestic law as a justification for a failure to perform. The only limit to pacta sunt servanda is the peremptory norm of general limit to pacta sunt servanda is the peremptory norm of general international law known as “international law known as “jus cogensjus cogens” which means compelling ” which means compelling lawlaw

TThe doctrines of necessity and self-defense. he doctrines of necessity and self-defense. Nemo iudex in causa sua – noone should be a judge in his own Nemo iudex in causa sua – noone should be a judge in his own

casecase

The principle of reparationThe principle of reparation The principle of a state’s responsibility for all its agentsThe principle of a state’s responsibility for all its agents

Judicial decisionsJudicial decisions

A decision of the Court has no A decision of the Court has no binding force except between the binding force except between the parties to the caseparties to the case

Stare decisisStare decisis is not applicable in is not applicable in international lawinternational law

Previous decisions – examined and Previous decisions – examined and taken into account by ICJtaken into account by ICJ

Writings of juristsWritings of jurists

Writers had an important role in the Writers had an important role in the early development of international early development of international lawlaw

Writers still make a contribution by Writers still make a contribution by highlighting, where appropriate, the highlighting, where appropriate, the need for international regulationneed for international regulation

Soft lawSoft law Non-legally binding international instruments: e.g. treaties Non-legally binding international instruments: e.g. treaties

which contain general obligations and non-binding which contain general obligations and non-binding statements of intent, codes of conduct, etc.; must be in statements of intent, codes of conduct, etc.; must be in writingwriting

Examples: the Universal Declaration of Human Rights Examples: the Universal Declaration of Human Rights (1948)(1948)

The Rio Declaration on the Environment and Development The Rio Declaration on the Environment and Development (1992)(1992)

Advantage- it can assist in promoting compromise and Advantage- it can assist in promoting compromise and prevent deadlockprevent deadlock

May become “hard law”, i.e. Universal Declaration May become “hard law”, i.e. Universal Declaration provisions reflected in 1966 UN International Covenantsprovisions reflected in 1966 UN International Covenants

Peremptory norms Peremptory norms (ius cogens ‘compelling law’)(ius cogens ‘compelling law’)

Fundamental principles of Fundamental principles of international law from which no international law from which no derogation is ever permittedderogation is ever permitted

ApplyApply erga omneserga omnes, upon any and , upon any and every state and human individual every state and human individual without exception or reservation without exception or reservation whatsoever.whatsoever.

Peremptory norms Peremptory norms (ius cogens ‘compelling law’)(ius cogens ‘compelling law’)

Prohibitions on:Prohibitions on: Waging aggressive warWaging aggressive war Crimes against humanityCrimes against humanity War crimesWar crimes GenocideGenocide Maritime piracyMaritime piracy ApartheidApartheid Slavery Slavery TortureTorture

Hostis humani generis Hostis humani generis ‘enemy ‘enemy of mankind’of mankind’

a legala legal term term that originates from that originates from admiralty lawadmiralty law

Before the adoption ofBefore the adoption of public public international lawinternational law, maritime, maritime pirates pirates and slave tradersand slave traders were held to be were held to be beyond legal protection, and could beyond legal protection, and could be dealt with as seen fit by any be dealt with as seen fit by any nation, even if that nation had not nation, even if that nation had not been directly attacked.been directly attacked.

Obligations erga omnesObligations erga omnes

Obligations owed to the international Obligations owed to the international legal community as a wholelegal community as a whole

Such obligations are derived from Such obligations are derived from “the outlawing of acts of aggression, “the outlawing of acts of aggression, and of genocide...” and from “rules and of genocide...” and from “rules concerning the basic rights of the concerning the basic rights of the human person, including protection human person, including protection from slavery and racial from slavery and racial discrimination.”discrimination.”

Ius cogensIus cogensProsecutor v. FurundžijaProsecutor v. Furundžija

Every state is entitled “to Every state is entitled “to investigate, prosecute and punish or investigate, prosecute and punish or extradite individuals accused of extradite individuals accused of torture, who are present in a territory torture, who are present in a territory under its jurisdiction”under its jurisdiction”

Prosecutor v. Furundžija Prosecutor v. Furundžija (ICTY, 10 Dec. 1998(ICTY, 10 Dec. 1998

TortureTorture::’’the intentional infliction, by act or omission, of the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for severe pain or suffering, whether physical or mental, for the purpose of obtaining information or a confession or of the purpose of obtaining information or a confession or of punishing, intimidating, humiliating or coercing the victim punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating on any ground or a third person, or of discriminating on any ground against the victim or a third person. For such an act to against the victim or a third person. For such an act to constitute torture, one of the parties thereto must be a constitute torture, one of the parties thereto must be a public official or must, at any rate, act in a non-private public official or must, at any rate, act in a non-private capacity, e.g. as acapacity, e.g. as a de facto de facto organ of a State or any other organ of a State or any other authority wielding entity.authority wielding entity.’’

Prosecutor v. Furundžija Prosecutor v. Furundžija (ICTY, 10 Dec. 1998(ICTY, 10 Dec. 1998

Rationale: Rationale: ““the torturer has become, like the the torturer has become, like the

pirate and the slave trader before pirate and the slave trader before him, him, hostis humani generishostis humani generis, an , an enemy of all mankind”enemy of all mankind”

International legal personality:International legal personality:DefinitionDefinition

The possession of international rights The possession of international rights and duties as well as the procedural and duties as well as the procedural capacity to seek redress for alleged capacity to seek redress for alleged violations and be held accountable violations and be held accountable for non-fulfillment of dutiesfor non-fulfillment of duties

Subjects of international lawSubjects of international law

States – the primary and original States – the primary and original subjects of international law; subjects of international law;

all states possess full international all states possess full international legal personalitylegal personality

Requirements of statehoodRequirements of statehood

Permanent populationPermanent population Defined territoryDefined territory Effective governmentEffective government The ability to enter into relations with The ability to enter into relations with

other Statesother States

TerritoryTerritory

Tangible evidence of state Tangible evidence of state sovereigntysovereignty

The territory of a state includes: The territory of a state includes: the land mass, subsoil, the water the land mass, subsoil, the water

enclosed therein, the land under that enclosed therein, the land under that water, the sea coast to a certain water, the sea coast to a certain limit, the airspace over the land limit, the airspace over the land mass and the territorial seamass and the territorial sea

Recognition of Recognition of states/governmentsstates/governments

The formal acknowledgement by an existing state The formal acknowledgement by an existing state that the recognised entity possesses the relevant that the recognised entity possesses the relevant criteria of statehoodcriteria of statehood

Initiation of diplomatic relations implies Initiation of diplomatic relations implies recognition, also bi-partite treaty on general recognition, also bi-partite treaty on general mattermatter

Participation in an international conference does Participation in an international conference does not imply recognitionnot imply recognition

Membership of the UN – acknowledgement that Membership of the UN – acknowledgement that the entity fulfils the crietria for purposes of the the entity fulfils the crietria for purposes of the UN onlyUN only

State responsibilityState responsibility

Every internationally wrongful act of Every internationally wrongful act of a State entails the international a State entails the international responsibility of that stateresponsibility of that state

Refusal to fulfill a treaty obligation Refusal to fulfill a treaty obligation involves international responsibilityinvolves international responsibility

Liability is incurred if a state is Liability is incurred if a state is implicated in the wrongful acts of implicated in the wrongful acts of another stateanother state

ReparationsReparations

It is a principle of international law It is a principle of international law that the breach of an engagement that the breach of an engagement involves an obligation to make involves an obligation to make reparation in an adequate form. reparation in an adequate form.

The aim of reparation is to restore The aim of reparation is to restore previous conditions and, if this is not previous conditions and, if this is not possible, then to give compensation, possible, then to give compensation, either in kind or with moneyeither in kind or with money

State successionState succession

The replacement of one state by The replacement of one state by another in the responsibility of the another in the responsibility of the international relations of territoryinternational relations of territory

State succession: Federal State succession: Federal Republic of YugoslaviaRepublic of Yugoslavia

FRY (constituting Serbia and Montenegro) unsuccessfully FRY (constituting Serbia and Montenegro) unsuccessfully sought to succeed to the Socailist Federal Republic of sought to succeed to the Socailist Federal Republic of Yugoslavia’s seat at the UNYugoslavia’s seat at the UN

The Security Council – against the claim: FRY did not The Security Council – against the claim: FRY did not constitute either a majority of SFRY’s land or population; no constitute either a majority of SFRY’s land or population; no devolution agreement between SFRY and FRY devolution agreement between SFRY and FRY

FRY applied for membership and was admitted to the UN in FRY applied for membership and was admitted to the UN in 20002000

Other former SFRY states applied for UN membership Other former SFRY states applied for UN membership independentlyindependently

International organisationInternational organisation

Established by agreement and has states Established by agreement and has states as its membersas its members

The key to determining international legal The key to determining international legal personality – the organisation’s personality – the organisation’s constituent documentconstituent document

International organisations vary in the International organisations vary in the international personality possessed and in international personality possessed and in this respect their personality is distinct this respect their personality is distinct from the personality enjoyed by statesfrom the personality enjoyed by states

UNUN Reparations for Injuries Suffered in Reparations for Injuries Suffered in

the Service of the United Nationsthe Service of the United Nations (1949) ICJ Rep. 174(1949) ICJ Rep. 174

The Court was asked by the General The Court was asked by the General Assembly to give an Advisory Assembly to give an Advisory Opinion on whether the UN, following Opinion on whether the UN, following injury to one of its agents sustained injury to one of its agents sustained in the performance of his duties, has:in the performance of his duties, has:

UNUN

“…“…the capacity to bring an international claim the capacity to bring an international claim against the responsible against the responsible de jure de jure or or de facto de facto government with a view to obtaining the government with a view to obtaining the reparation in respect of the damage causedreparation in respect of the damage caused

A) to the United Nations,A) to the United Nations, B) to the victim or to persons entitled to him?B) to the victim or to persons entitled to him? Ii. In the event of an affirmative reply on the point Ii. In the event of an affirmative reply on the point

i, how is the action to be reconciled with such i, how is the action to be reconciled with such rights as may be possessed by the State of which rights as may be possessed by the State of which the victim is a national?”the victim is a national?”

UNUN

Answer:Answer: ““Throughout its history, the development Throughout its history, the development

of international law...and the progressive of international law...and the progressive increase in the collective activities of increase in the collective activities of States has already given rise to instances States has already given rise to instances of action upon the international plane by of action upon the international plane by certain entities which are not States”certain entities which are not States”

UNUN ““In the opinion of the Court the In the opinion of the Court the

Organisation was intended to exercise and Organisation was intended to exercise and enjoy, and is in fact exercising and enjoy, and is in fact exercising and enjoying, functions and rights which can enjoying, functions and rights which can only be explained on the basis of only be explained on the basis of possession of a large measure of possession of a large measure of international personality and the capacity international personality and the capacity to operate upon an international plane. It to operate upon an international plane. It is at present the supreme type of is at present the supreme type of international organisation and it could not international organisation and it could not carry out the intentions of its founders if it carry out the intentions of its founders if it was devoid of international personality”was devoid of international personality”

UNUN

““The fifty States, representing the vast The fifty States, representing the vast majority of the members of the majority of the members of the international community had the power, in international community had the power, in conformity with international law, to bring conformity with international law, to bring into being an entity possessing objective into being an entity possessing objective international personality and not merely international personality and not merely personality recognised by them alone, personality recognised by them alone, together with capacity to bring together with capacity to bring international claims” (ICJ Advisory Opnion)international claims” (ICJ Advisory Opnion)

IndividualsIndividuals

Human rights: many international Human rights: many international instruments provide protection instruments provide protection against specific types of behaviour, against specific types of behaviour, e.g. racial discrimination, and e.g. racial discrimination, and extending protection to groups extending protection to groups perceived as vulnerable, e.g. childrenperceived as vulnerable, e.g. children

Individuals: dutiesIndividuals: duties

Individuals can no longer hide behind Individuals can no longer hide behind the state apparatus:the state apparatus:

1946 Nurnberg Tribunal: “crimes 1946 Nurnberg Tribunal: “crimes against international law are against international law are committed by men, not by abstract committed by men, not by abstract entities, and only by punishing entities, and only by punishing individuals who commit such crime individuals who commit such crime can the provisions of international can the provisions of international law be enforced”law be enforced”

Individuals: dutiesIndividuals: duties

1948 1948 Convention on the Prevention Convention on the Prevention and Punishment of the Crime of and Punishment of the Crime of GenocideGenocide: “persons committing : “persons committing genocide or any of the other acts genocide or any of the other acts enumerated in Article III shall be enumerated in Article III shall be punished whether they are punished whether they are constitutionally responsible rulers, constitutionally responsible rulers, public officials or private individuals”public officials or private individuals”

Procedural capacity of individualsProcedural capacity of individuals

Individuals have limited procedural Individuals have limited procedural capacity and enjoy only that capacity capacity and enjoy only that capacity given to them by statesgiven to them by states

Procedural capacity of individualsProcedural capacity of individuals

““A State Party may at any time declare that it A State Party may at any time declare that it recognises the competence of the Committee to recognises the competence of the Committee to receive and consider communications from receive and consider communications from individuals or groups of individuals within its individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in that State Party of any of the rights set forth in this Convention. No communication shall be this Convention. No communication shall be received by the Committee if it concerns a State received by the Committee if it concerns a State Party which has not made such a declaration” Party which has not made such a declaration” (1966 (1966 International Convention on the Elimination International Convention on the Elimination of All Forms of Racial Discriminationof All Forms of Racial Discrimination))

Areas of international lawAreas of international law

International watersInternational waters Human rightsHuman rights Internatinal crimesInternatinal crimes Global communicationGlobal communication Global tradeGlobal trade Environmental lawEnvironmental law Outer spaceOuter space

Law of the SeaLaw of the Sea

Made up of rules which regulate Made up of rules which regulate relations between states in respect of relations between states in respect of maritime mattersmaritime matters

Law of the Sea: The Geneva Law of the Sea: The Geneva Conventions (1958)Conventions (1958)

Territorial sea (12-nautical mile limit)Territorial sea (12-nautical mile limit) Contiguous zone (24 nautical miles; coastal state- may Contiguous zone (24 nautical miles; coastal state- may

prevent or punish infringement of its customs, immigration prevent or punish infringement of its customs, immigration laws etc)laws etc)

Innocent passage: coastal states are required to allow Innocent passage: coastal states are required to allow innocent passage through territorial sea for specific innocent passage through territorial sea for specific purposespurposes

Exclusive economic zone (200 nautical miles; area beyond Exclusive economic zone (200 nautical miles; area beyond territorial sea; sovereign rights of exploration, exploitation, territorial sea; sovereign rights of exploration, exploitation, conservation and management of natural resources of a conservation and management of natural resources of a coastal state, e.g. marine research; protection of the coastal state, e.g. marine research; protection of the environment)environment)

Law of the SeaLaw of the Sea

Continental shelf (submarine areas Continental shelf (submarine areas that extend beyond territorial sea that extend beyond territorial sea (200 nautical miles)– sovereign rights (200 nautical miles)– sovereign rights of exploration and exploitation of of exploration and exploitation of natural resources)natural resources)

Deep seabed (common heritage of Deep seabed (common heritage of mankind)mankind)

High Seas (freedom of the high seas; High Seas (freedom of the high seas; open to all states)open to all states)

Freedom of the High SeasFreedom of the High Seas

NavigationNavigation Over-flightOver-flight To lay submarine cables and pipelinesTo lay submarine cables and pipelines To construct artificial islands and other To construct artificial islands and other

installations permitted under international installations permitted under international lawlaw

FishingFishing Scientific researchScientific research

1958 Geneva Conventions on the 1958 Geneva Conventions on the Law of the SeaLaw of the Sea

Convention on the Territorial Sea and Convention on the Territorial Sea and Contiguous Zone, Convention on the Contiguous Zone, Convention on the High Seas, Convention on the High Seas, Convention on the Continental Shelf; Convention on Continental Shelf; Convention on Fishing and Conservation of Living Fishing and Conservation of Living Resources of the High SeasResources of the High Seas

State responsibilityState responsibility

Liability of a state for conduct in Liability of a state for conduct in breach of international law, which breach of international law, which causes injury to another state or that causes injury to another state or that state’s nationalsstate’s nationals

Responsibility of one state to another Responsibility of one state to another for the non-observance of the for the non-observance of the obligations imposed by the obligations imposed by the international legal systeminternational legal system

Obligations erga omnesObligations erga omnes

Obligations owed to the international Obligations owed to the international legal community as a whole and legal community as a whole and obligations, which every state has an obligations, which every state has an interest in having respectedinterest in having respected

State responsibility towards the State responsibility towards the environmentenvironment

Obligation to ensure that activities Obligation to ensure that activities within their jurisdiction control do not within their jurisdiction control do not cause damage to the environment of cause damage to the environment of other states or of areas beyond the other states or of areas beyond the limits of national jurisdictionlimits of national jurisdiction

Sustainable development – meeting Sustainable development – meeting the needs of the present generation the needs of the present generation without compromising the ability of without compromising the ability of future generations to do the samefuture generations to do the same

Human rightsHuman rights

The Universal Declaration of Human The Universal Declaration of Human Rights 1948Rights 1948

UN International Covenant on Civil UN International Covenant on Civil and Political Rights (1966) – 1st and Political Rights (1966) – 1st generation rightsgeneration rights

UN International Covenant on UN International Covenant on Economic, Social and Cultural Economic, Social and Cultural Rights(1966) – 2nd generation rightsRights(1966) – 2nd generation rights

Judicial settlement of international Judicial settlement of international disputesdisputes

The parties to any dispute, continuance of The parties to any dispute, continuance of which is likely to endanger the which is likely to endanger the maintenance of international peace and maintenance of international peace and security, shall first of all, seek a solution security, shall first of all, seek a solution by negotiation, enquiry, mediation, by negotiation, enquiry, mediation, concilliation, arbitration, judicial concilliation, arbitration, judicial settlement, resort to regional agencies or settlement, resort to regional agencies or arrangements, or other peaceful means of arrangements, or other peaceful means of their own choice” (UN Charter, Art. 33 (1)their own choice” (UN Charter, Art. 33 (1)

Use of forceUse of force

Article 2(4) of the UN Charter prohibits not Article 2(4) of the UN Charter prohibits not only the use of force but also the threat of only the use of force but also the threat of such, and extends to include reprisals, i.e. such, and extends to include reprisals, i.e. acts adopted by a state in retalliation to an acts adopted by a state in retalliation to an unlawful actunlawful act

Right of a state to use force in self-Right of a state to use force in self-defence; extends until the Security Council defence; extends until the Security Council has taken measures to maintain has taken measures to maintain international peace and securityinternational peace and security

Use of force to protect nationals Use of force to protect nationals abroadabroad

Intervention – premised on the host Intervention – premised on the host state’s failure to protect non-state’s failure to protect non-nationals to at least a minimum nationals to at least a minimum international standardinternational standard

Force should be used restrictively as Force should be used restrictively as entering another state’s territory entering another state’s territory without consent amounts to violation without consent amounts to violation of territorial integrity and sovereigntyof territorial integrity and sovereignty

Use of force in anticipation of an Use of force in anticipation of an armed attackarmed attack

controversial issue controversial issue Argued as existing under customary Argued as existing under customary

international lawinternational law

Use of force by states through the Use of force by states through the UNUN

The Security Council may under Art. The Security Council may under Art. 42 authorise the use of armed force 42 authorise the use of armed force as may be necessary to maintain or as may be necessary to maintain or restore international peace and restore international peace and security. Article 42 will only be security. Article 42 will only be invoked if Art 41 measures have invoked if Art 41 measures have been or would be inadequate.been or would be inadequate.

Use of force by states through the Use of force by states through the UNUN

Article 41 measures may include Article 41 measures may include “complete or partial interruption of “complete or partial interruption of economic relations and of rail, sea, economic relations and of rail, sea, air, postal, telegraphic, radio, and air, postal, telegraphic, radio, and other means of communication and other means of communication and the severance of diplomatic the severance of diplomatic relations”relations”

Humanitarian interventionHumanitarian intervention Force used to afford protection to another state’s nationals Force used to afford protection to another state’s nationals Not clearly established in international lawNot clearly established in international law For intervention there must be convincing evidence of For intervention there must be convincing evidence of

extreme humanitarian distress on a large scalr requiring extreme humanitarian distress on a large scalr requiring urgent reliefurgent relief

Any use of force must be proportionate to achieving the Any use of force must be proportionate to achieving the humanitarian purpose and must be carried out in humanitarian purpose and must be carried out in accordance with international lawaccordance with international law

Any use of force should be collective; no individual country Any use of force should be collective; no individual country can assert that it is using military action on behalf of the can assert that it is using military action on behalf of the international communityinternational community

Internet sourcesInternet sources

www.bayefsky.com – UN human – UN human rights treatiesrights treaties

www.hrw.org – Human Rights Watch – Human Rights Watch www.icty.org – ICTY – ICTY www.icj-cij.org – ICJ – ICJ www.echr.coe.int – ECHR – ECHR www.eisil.org – useful for all – useful for all

elements of international lawelements of international law

Points to rememberPoints to remember

Public international law/Private Public international law/Private international law/supranational lawinternational law/supranational law

Sources of international lawSources of international law Subjects of international lawSubjects of international law Areas of international lawAreas of international law

Legal termsLegal terms

RedressRedress Pravna zaštita, obeštećenje, Pravna zaštita, obeštećenje,

zadovoljštinazadovoljština Redress a wrongRedress a wrong Ispraviti nepravduIspraviti nepravdu

Legal termsLegal terms

Erga omnesErga omnes Izraz kojim se označuje svojstvo određenih Izraz kojim se označuje svojstvo određenih

subjektivnih prava da djeluju prema svim subjektivnih prava da djeluju prema svim pravnim subjektima; apsolutna pravapravnim subjektima; apsolutna prava

ReprisalReprisal Protumjera, represalijaProtumjera, represalija RetalliationRetalliation Odmazda, primjena protupravnih mjera Odmazda, primjena protupravnih mjera

(međ. pravo)(međ. pravo)

Legal termsLegal terms

DepreciatoryDepreciatory Preziran, podcjenjivački, pejorativanPreziran, podcjenjivački, pejorativan Arbitral proceedingsArbitral proceedings Arbitražni postupakArbitražni postupak ImpugnImpugn Osporiti, poricati, pobiti, dovesti u Osporiti, poricati, pobiti, dovesti u

pitanjepitanje

conventional, nations, Public, conventional, nations, Public,

signatories, sovereignty, Treatiessignatories, sovereignty, Treaties, , ___International Law derives its authority from ___International Law derives its authority from

three main sources.three main sources. 1. __and international conventions are written 1. __and international conventions are written

agreements concluded by two or more agreements concluded by two or more sovereign__ or by a nation and an international sovereign__ or by a nation and an international organization, such as the European Union. The organization, such as the European Union. The power to enter into treaty relations is an essential power to enter into treaty relations is an essential attribute of ___. There is a cardinal principle of attribute of ___. There is a cardinal principle of international law that treaties validly concluded international law that treaties validly concluded must not be broken by the__. This source is also must not be broken by the__. This source is also known as __international law.known as __international law.

KeyKey Public International Law derives its authority from three Public International Law derives its authority from three

main sources.main sources. 1. Treaties and international conventions are written 1. Treaties and international conventions are written

agreements concluded by two or more sovereign nations or agreements concluded by two or more sovereign nations or by a nation and an international organization, such as the by a nation and an international organization, such as the European Union. The power to enter into treaty relations is European Union. The power to enter into treaty relations is an essential attribute of sovereignty. There is a cardinal an essential attribute of sovereignty. There is a cardinal principle of international law that treaties validly concluded principle of international law that treaties validly concluded must not be broken by the signatories. This source is also must not be broken by the signatories. This source is also known as conventional international law.known as conventional international law.

Put the verbs in brackets into the Put the verbs in brackets into the appropriate forms:appropriate forms:

2. International agreements or conventions create law for 2. International agreements or conventions create law for the parties of the agreement. They may also lead to the the parties of the agreement. They may also lead to the creation of international law when they ___(intend, passive) creation of international law when they ___(intend, passive) for adherence generally and __widely __(accept, passive). for adherence generally and __widely __(accept, passive). Treaties and conventions ___, at first, ___(restrict, passive) Treaties and conventions ___, at first, ___(restrict, passive) in their effects to those countries that __(ratify) them. They in their effects to those countries that __(ratify) them. They are particular, not general, international law; yet are particular, not general, international law; yet regulations and procedures ___(contain) in treaties and regulations and procedures ___(contain) in treaties and conventions __ often __(develop) into general customary conventions __ often __(develop) into general customary usage, that is, have come to be considered binding even on usage, that is, have come to be considered binding even on those states that did not sign and ratify them. Some those states that did not sign and ratify them. Some customs may become part of international law because of customs may become part of international law because of general acceptance by most nations, even if not general acceptance by most nations, even if not ___(embody) in a written treaty instrument.___(embody) in a written treaty instrument.

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22. International agreements or conventions create law for the . International agreements or conventions create law for the parties of the agreement. They may also lead to the creation of parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence customary international law when they are intended for adherence generally and are in fact widely accepted. Treaties and generally and are in fact widely accepted. Treaties and conventions were, at first, restricted in their effects to those conventions were, at first, restricted in their effects to those countries that ratified them. They are particular, not general, countries that ratified them. They are particular, not general, international law; yet regulations and procedures contained in international law; yet regulations and procedures contained in treaties and conventions have often developed into general treaties and conventions have often developed into general customary usage, that is, have come to be considered binding customary usage, that is, have come to be considered binding even on those states that did not sign and ratify them. Some even on those states that did not sign and ratify them. Some customs may become part of international law because of general customs may become part of international law because of general acceptance by most nations, even if not embodied in a written acceptance by most nations, even if not embodied in a written treaty instrument.treaty instrument.

Customs, law, principles, sourceCustoms, law, principles, source

General __common to systems of General __common to systems of national __ fall into the same national __ fall into the same category and are, in fact, often category and are, in fact, often difficult to distinguish from __as a difficult to distinguish from __as a __of international law.__of international law.

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General principles common to General principles common to systems of national law fall into the systems of national law fall into the same category and are, in fact, often same category and are, in fact, often difficult to distinguish from customs difficult to distinguish from customs as a source of international law.as a source of international law.

Match the following words with their definitions: Match the following words with their definitions: convention, convention, sovereign, conclude, binding, treaty, usage, custom, sovereign, conclude, binding, treaty, usage, custom,

regulation, adherence, ratify, instrumentregulation, adherence, ratify, instrument

A) the customary method of performing or A) the customary method of performing or carrying out an activity that is followed by a carrying out an activity that is followed by a particular group of peopleparticular group of people

B) to give formal approval to something in order B) to give formal approval to something in order that it can become lawthat it can become law

C) self-governing and not ruled by another stateC) self-governing and not ruled by another state D) ruleD) rule E) legally requiredE) legally required F) the action of following a rule or keeping to an F) the action of following a rule or keeping to an

agreementagreement G) legally binding agreement between states G) legally binding agreement between states

sponsored by an international organizationsponsored by an international organization

convention, sovereign, conclude, bidning, treaty, usage, convention, sovereign, conclude, bidning, treaty, usage, custom, regulation, adherence, ratify, instrumentcustom, regulation, adherence, ratify, instrument

H) legally binding agreement between two H) legally binding agreement between two or more statesor more states

i) a formal legal documenti) a formal legal document J) a long established tradition or usage J) a long established tradition or usage

that becomes customary law if it is: that becomes customary law if it is: a)consistently and regularly observed and a)consistently and regularly observed and b) recognized by those states observing it b) recognized by those states observing it as a practice that they must followas a practice that they must follow

K) to make a formal agreement complete K) to make a formal agreement complete and fixed, especially after long discussions and fixed, especially after long discussions or arrangementsor arrangements

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ConventionConvention: legally binding : legally binding agreement between states agreement between states sponsored by an international sponsored by an international organizationorganization

SovereignSovereign: self-governing and not : self-governing and not ruled by another stateruled by another state

ConcludeConclude: to make a formal : to make a formal agreement complete and fixed, agreement complete and fixed, especially after long discussions or especially after long discussions or arrangementsarrangements

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BindingBinding: legally required: legally required TreatyTreaty: legally binding agreement : legally binding agreement

between two or more statesbetween two or more states UsageUsage: the customary method of : the customary method of

performing or carrying out an activity performing or carrying out an activity that is followed by a particular group that is followed by a particular group of peopleof people

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CustomCustom: a long established tradition : a long established tradition or usage that becomes customary or usage that becomes customary law if it is a) consistently and law if it is a) consistently and regularly observed and b)recognized regularly observed and b)recognized by those states observing it as a by those states observing it as a practice that they must followpractice that they must follow

RegulationRegulation: rule: rule AdherenceAdherence: the action of following a : the action of following a

rule or keeping to an agreementrule or keeping to an agreement

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RatifyRatify: to give formal approval to : to give formal approval to something in order that it can something in order that it can become lawbecome law

InstrumentInstrument: a formal legal : a formal legal documentdocument