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Public International Law (:book: Sources (Hard law (Conventions / Treaties…

- - - - International agreement
      - between states
        
        :question: analogy with contract
        
        expression of consent
        
        pacta sunt servanda
        
        reciprocity
        
        :question: differences with contract
        
        formally: possibility of more than two parties: multilateral (v. bilateral) treaties
        
        materially: possibility of creating new content: law-making (v. contractual) treaties
        
        materially: constitutional v. regulatory treaties
      - in written form
        
        :female-judge::skin-tone-5: ICJ Agean Continental Shelf
        
        Minutes from a meeting count as treaties
        
        Any commitments to which Parties consented
        
        :female-judge::skin-tone-5: ICJ Qatar v. Bahrain
        
        Joint statements / press communiqués count as treaties
      - governed by international law
        
        :bookmark: Vienna Convention on the Law of Treaties
        
        Principles of Treaties
        
        State consent
        
        :question: how expressed?
        
        Signature
        
        Ratification (check with national order)
        
        Meanwhile, refraining from acts that defeat object and purpose of treaty
        
        Reservations
        
        State unilaterally excluding or modifying legal effect of certain provisions in a treaty
        
        2 more items...
        
        Pacta sunt servanda
        
        Prevalence over national law
        
        Treaties Losing Effect
        
        Conflict and Priority
        
        Invalidity
        
        :female-judge::skin-tone-5: ICJ Preah Vihear Temple
        
        Original consent cannot be changed unilaterally
        
        Thai king had accepted Cambodian officials in Temple during visit
        
        Termination
        
        Termination of Treaties
        
        With consent of parties
        
        Denunciation or Withdrawal
        
        Unilaterally
        
        In a fundamental change of circumstances
        
        :female-judge::skin-tone-5: ICJ Fisheries jurisdiction Iceland - UK
        
        1 more item...
        
        Interpretation of Treaties
        
        Primary means
        
        In good faith with ordinary meaning
        
        In light of object and purpose
        
        In context
        
        subsequent agreements
        
        subsequent practice
        
        general rules of intl law
        
        Supplementary means
        
        Travaux préparatoires
        
        When meaning is ambiguous, absurd or unreasonable
      - whatever its designation
    - - :question: why?
        
        1) increasing contact between states: norms of behaviour crystallise
        
        2) absence of executive and legislature: custom influential role
      - :question: what?
        
        behaviour and practice motivated by legal obligation
        
        material element
        
        Duration of Practice
        
        depends on norm in question
        
        instant custom
        examples
        
        2 more items...
        
        depends on factors as frequency, uniformity and extent of state practice
        
        :female-judge::skin-tone-5: ICJ North Sea Continental Shelf
        
        5 more items...
        
        less important due to improvement of intl communication
        
        sense that non-compliance would produce legal consequences
        
        psychological element
        
        Opinio Juris
        
        subjective belief that practice is legally required from them
        
        persistent objector
        
        2 more items...
        
        :female-judge::skin-tone-5: ICJ Nicaragua v. USA
        
        States behaving in conduct that testifies of belief that practice is rendered obligatory by existence of a new rule of law
        
        2 more items...
        
        State sovereignty permits each state to choose political, economic, social and cultural system, and foreign policy
    - - Treaties spell out what has been accepted as custom
        
        Parallel Obligations
        
        :female-judge::skin-tone-5: ICJ Nicaragua v. USA
      - Treaty content develops into custom
        
        Crystallisation
        
        :female-judge::skin-tone-5: ICJ Wall
      - Treaties insert rules that do not exist in custom
      - In conflict
        
        Lex specialis derogat legi generali
        
        Lex posteriori derogat legi priori
    - - Gap-filler drawn from national legal systems
        
        examples
        
        Good faith
        
        Pacta sunt servanda
        
        Reparation
        
        No harm principle
        
        Equity
    - - Peremptory norms
        
        No derogation permitted
        
        Modified only by subsequent norm of same character
      - Prevail over all other norms
        
        then: Obligations erga omnes
        
        then: Obligations under UN Charter
  - - - No binding force except between the parties in particular case
      - No stare decisis
        
        However, legal certainty
        
        Courts have dissenters
    - - International Law Commission
        
        De lex lata
        
        Codification process
        
        De lex ferenda
        
        Progressive developments
- - - - States possess totality of international rights and duties, as recognised by international law
        
        Personality of states is full and original
        
        Increase in collective activities of States gave rise to entities that are not states
        
        Personallity of other subjects is limited and derivative
      - International law is product of relations between states
    - - :bookmark: Montevideo Convention
        
        Permanent population
        
        Defined territory
        
        Territorial sovereignty: right to exercise functions of a State in territory
        
        :question: how to acquire territory?
        
        discovery and occupation of terra nullius
        
        prescription: peaceful means of occupying a territory
        
        conquest: using military forces / in wartime, conquering violently
        
        accretion: by natural forces
        
        cession: territory transferred, or state splitting up
        
        Government exercising effective power
        
        Capacity to enter into relations with other states
      - Legality: State may not emerge illegally
        
        Violation of self-determination
        
        As a right of peoples
        
        External: political system
        
        Internal: social, cultural and economic affairs
        
        :female-judge::skin-tone-5: ICJ Legal Consequences of Construction of a Wall
        
        The Palestinians have a right to self-determination
        
        Not an entitlement to independence
        
        However, seeking independence is not prohibited (cf. Kosovo)
        
        Only if internal self-determination gravely violated
        
        Racial discrimination
        
        Illegal use of force
    - - Constitutive recognition: basis for statehood
        
        Problem: How many states needed?
      - Declaratory recognition: no necessity for statehood
      - Duty to withhold recognition if legality criterion violated
    - - Competence to govern persons, activities and property by municipal laws
        
        to prescribe
        
        to adjudicate
        
        to enforce
      - Principles of Jurisdiction
        
        Subjective territorial principle: a crime initiated on your territory
        
        Objective territorial principle: a crime having effects on your territory
        
        Economic effects principle: a crime elsewhere impacting the economy of your territory
        
        Active nationality principle: the perpetrator is your national
        
        Passive nationality principle: the victim is your national
        
        Protective principle: offences against security of state, threatening governmental functions
        
        Universality principle: offences prohibited by international community - every country has jurisdiction
        
        Quasi-universal jurisdiction by treaty: obligation on contracting parties to either extradite or adjudicate
      - Exceptions to Jurisdiction
        
        Immunity
        
        Acta iure imperii: government functions
        
        Functional immunity: Full immunity
        
        Also for diplomats
        
        during misbehaviour
        
        2 more items...
        
        Acta iure gestionis: private / commercial functions
        
        Personal immunity: Full immunity in office; No immunity after end of term
        
        :female-judge::skin-tone-5: ICJ Arrest Warrant (Congo v. Belgium)
        
        Government officials cannot be tried at all when in office
        
        1 more item...
    - - International wrongful act = international responsibility of State
        
        :question: When wrongful?
        
        act or omission that is
        
        a) constitutes breach of international obligation of that State
        
        b) attributable to the State under international law
        
        also through its organs and agents, even ultra vires
        
        :female-judge::skin-tone-5: ICJ Srebrenica
        
        1 more item...
        
        :question: When for private parties?
        
        3 more items...
        
        For insurrectional movements: also acts during their struggle for power
        
        Aid or assistance in commission of intl wrongful act
        
        :question: When not wrongful?
        
        Self-defence
        
        Counter-measures
        
        In response to previous wrongful act
        
        Directed against wrongdoing state
        
        Called for discontinuation failed
        
        Temporary and reversible
        
        Proportionate
        
        :female-judge::skin-tone-5: ICJ Gabcikovo-Nagymaros Project
        
        Force majeure
        
        Distress
        
        Necessity
        
        :question: Consequences?
        
        by wrong-doing state
        
        Cessation
        
        For obligations erga omnes, non-injured States may also claim cessation of the act
        
        De lege ferenda?
        
        Full reparation
        
        Restitution
        
        Compensation
        
        Satisfaction
        
        if going against ius cogens
        
        :female-judge::skin-tone-5: ICJ Wall (Advisory)
        
        No State may recognise a situation caused by breach of ius cogens as lawful
  - - - Established by agreement with states as principal members
      - Legal personality depends on constituent charter
        
        Explicitly conferred? cf. EU
        
        Implicitly consolidated / implied from Charter? cf. UN
        
        the UN Charter doesn't say anything
        
        :female-judge::skin-tone-5: ICJ Reparations for Injuries (Advisory)
        
        UN intended to exercise functions and rights that it can only have based on a large measure of international personality
        
        Otherwise, it could not carry out the intentions of the founders
        
        So it possesses a large measure of international personality
        
        1 more item...
        
        :female-judge::skin-tone-5: ICJ Nuclear Weapons
        
        International organisations do not possess a general competence
        
        Principle of speciality
        
        Limits of powers are a function of common interests whose promotion the States entrust to them
        
        1 more item...
      - Responsibility for organs and individuals under control of IO
        
        But immunity before national courts
    - - Limited legal personality
        
        Rights
        
        Minimum standards
        
        Human rights treaties
        
        :female-judge::skin-tone-5: ICJ LaGrand v. USA
        
        Vienna Convention on Consular Relations conferred direct rights to individuals
        
        Duties
        
        :female-judge::skin-tone-5: Nuremberg Trial
        
        Crimes against international law committed by individuals, not abstract entities
        
        Procedural capacity
        
        Human Rights Courts and Committees
    - - Groups that on behalf of a people engage with force in what they see as attempt to force regime change
        
        No legal personality
    - - Private organisations cross-border operation
      - Created and governed by domestic laws
        
        No legal personality
        
        Lots of NGOs have consultative status in UN and other IOs
    - - Governed by domestic laws, but some personality derived from international law
        
        Rights
        
        Investment treaties
        
        Customary international law: min. standard of treatment of aliens
        
        Duties
        
        Principles on Business and Human Rights
        
        Procedural Capacity
        
        Arbitration
  - - - Rights
      - Obligations
      - Procedural capacity
        
        Power to carry out legal acts
        
        Possibility to bring claims on breaches
        
        Responsible for violations of obligations
- - - - Dédoublement fonctionnel
        
        Dualism
        
        National law and international law independent
        
        Doctrine of transformation
        
        Harmonisation efforts
        
        Matter of degree, not binary classification
        
        Monism
        
        Unitary concept of law: integral system
        
        If conflicting: international law > national law
        
        Doctrine of incorporation
  - - - Positivism
        
        State consent
        
        Explicitly: by treaty
        
        Implicitly: by conduct
  - - - Law reduced to mere activity of the courts
        
        Rule-skepticism: distrust of legal rules as inaccurate predictors of what courts will do
        
        Saying what the law is, does not depend on logic but on judgment
        
        Decisions are influenced by
        
        Actor: opinions and attitude on policy
        
        Structure: beliefs on community and class
        
        Law is in flux and of judicial creation
        
        Law is instrumental to social ends
        
        Need for objective inquiry, based on social sciences into states of laws
        
        Need for evaluation of effects of law on society
    - - :goal_net: Aims
        
        Freedom
        
        Contra the alienation of power
        
        Demonstration of ambiguity of legal doctrines
        
        Publication of historical, social, economic and psychological results of legal decisions
        
        Demystification of legal analysis to impose transparency
      - Deconstruction: Critical Legal Studies
        
        1) exposition of contingency and choice
        
        underlying principles that supposedly carry a decision
        
        structural indeterminacy
        
        between apology (sovereign consent) and utopia (substantive justice)
        
        military necessity v. civilian protection
        
        trade liberalisation v. regulatory autonomy
        
        HR protection v. national security
        
        proportionality v. freedom of speech
        
        freedom of contract v. ius cogens
        
        semantic authority
        
        power relations
        
        public v. private
        
        regulation v. market
        
        gender
        
        class
        
        :person_with_blond_hair: Koskenniemi: Style as Method
        
        subjective > objective
        
        1 more item...
        
        arguments in law always follow interests
        
        1 more item...
        
        language of law makes injustice manageable
        
        2) doubt and challenge of manifestations of order, certainty of deduction and progress
        
        3) no certainty or neutrality
      - contra realism
        
        determine why courts decide as they do
        
        against certainty of other sciences
        
        do not predict, but deconstruct
      - on human rights
        
        :person_with_blond_hair: Pellet: Human Rightism
        
        Confer autonomy (that it does not possess) to a discipline (that does not exist as such)
        
        Jurists can wish to change balance of power, but forced to describe legal rules as they are
        
        :person_with_blond_hair: Binion: Feminist Approaches
        
        Disempowerment: law is drafted by men, benefitting men
        
        Actual human experience: content > abstraction
        
        Culture as defence
        
        Post-colonial: most law drafted by Western countries, ignoring topics of concern for other nations
        
        HR in third world
- - - - Develop friendly relations
      - Achieve international co-operation in solving intl problems
        
        Promotion and encouragement of
        respect for human rights
      - Maintenance of international peace and security
        
        take effective collective measures
        
        w/ principles of justice and intl law
    - - Peace and Security
        
        Peaceful means
        
        International Dispute Settlement
        
        :question: What is a Dispute?
        
        :female-judge::skin-tone-5: ICJ South West Africa
        
        To prove the existence of a dispute, assertion is not sufficient: equal to denial of non-existence of conflict
        
        1 more item...
        
        :question: How?
        
        Many different bodies, courts and tribunals
        
        Mandates
        
        3 more items...
        
        No formal hierarchy
        
        2 more items...
        
        Arbitration
        
        Procedure for settlement of disputes between states by binding award, resulting of undertaking voluntarily accepted
        
        2 more items...
        
        Non-binding dispute settlements
        
        First: negotiation (UN Charter)
        
        Then: mediation and conciliation
        
        Parties can voluntarily accept proposal, won't lose prestige / reputation
        
        Disputing parties in control of outcome
        
        No legal precedent
        
        Flexibility and Secrecy
        
        Good offices: as third party, opening space to bring two disputing parties together
        
        Countermeasures
        
        Retorsions: unfriendly, not unlawful
        
        Criteria
        
        Proportionality
        
        No use of force
        
        Reprisals: illegal under intl law, adopted by a state in response to another state's unlawful act
        
        The Use of Force
        
        jus ad bellum: whether and under what conditions resort to use of force is legal
        
        General prohibition: use of force against territorial integrity or political independence of any State
        
        :question: exceptions
        
        Individual or collective self-defence
        
        1 more item...
        
        If authorised by Security Council
        
        3 more items...
        
        jus in bello: whether conduct of parties to an armed conflict, during the conflict, is legal (intl humanitarian law)
      - Economic and Social Development
      - Human Rights
      - Humanitarian Aid
      - International Law
    - - League of Nations (1919)
        
        No human rights in Covenant
        
        Present
        
        Human Rights Council
        
        Universal Declaration of Human Rights
  - - - Reconciliation of effectiveness of State Power with protection against State Power
        
        Principle of human dignity
        
        Rights are inherent and inalienable
        
        Distinction between
        
        Legal norms
        
        Political/moral norms
    - - Freedom to rule, without intervention
      - No international institution
      - No general acceptance at national level
    - - Differences with international law
        
        Redefinition of sovereignty and reciprocity
        
        Rather co-operation than co-existence
        
        Source of obligation not per se state voluntarism, but inherent human nature
        
        IHRL focuses on beneficiaries
        
        Domestic protection via international law
      - Approaches of VCLT to IHRL
        
        Positivist
        
        Treaty that regulates treaty relationships
        
        Doesn't work for IHRL: many countries ratified VCLT later than IHRL
        
        Non-retroactivity clause
        
        Dogmatic
        
        VCLT codifies customs of intl law, applies to everyone
        
        Provides blueprints for treaties in all fields
        
        Assuming IHRL is special in that regard, could lead to fragmentation
        
        VCLT is too state-oriented
        
        Constitutional
        
        IHRL presents constitutional aspect of PIL
        
        IHRL approached differently for object and purpose
        
        Reconciliation
        
        VCLT is reflection of norms and customs
        
        Adjusted to specific treaties
        
        IHRL not separated from PIL
        
        More likely to meet acceptance
        
        Interpretation-wise
        
        VCLT emphasises States as parties and interpreters
        
        ILC: International monitoring bodies should not revise treaties or read sth into them that they do not include
        
        Interpretation of IHRL is in principle guided by VCLT
        
        Additional principles
        
        Living instrument doctrine
        
        2 more items...
        
        Principle of effectiveness
        
        2 more items...
        
        Margin of appreciation
        
        3 more items...
    - - Human Rights Treaties
        
        Presumption of pre-existence of rights before treaties
        
        Natural rights
        
        Domestic laws
        
        Special obligations
        
        Towards individuals
        
        :female-judge::skin-tone-5: ICJ Opinion on Genocide Convention
        
        States have no interests of their own, merely a common interest
        
        One cannot speak of advantages or disadvantages to States individually or contractual balance between rights and duties
        
        :female-judge::skin-tone-5: Human Rights Committee, GC 24
        
        Human rights not a web of inter-State exchanges of mutual obligations
        
        No place for principle of reciprocity
        
        Erga omnes
        
        Established in :female-judge::skin-tone-5: ICJ Barcelona Traction
        
        Non-reciprocity?
        
        Denunciation? (unilateral act of termination)
        
        Sometimes provided for explicitly in treaties (ECHR)
        
        :female-judge::skin-tone-5: Human Rights Committee, GC 26
        
        Drafters of Covenant explicitly intended to exclude denunciation
        
        Nature of HR treaty shouldn't imply denunciation
        
        Provisions in VCLT Art. 60 for termination of treaties do not apply to provisions protecting humans in humanitarian treaties
      - Ius cogens
        
        Ius cogens is human rights, but human rights is not ius cogens
    - - Important role for individuals and non-state actors in designing IHRL
        
        But what are non-state actors?
        
        Not-a-cat syndrome
        
        We don't pay attention to differences between NSAs
        
        For collective rights: collectivities
        
        The right to self-determination for all peoples
        
        Minorities are not mentioned in UDHR, only in ICCPR
        
        Based on ICCPR Art. 27: protection of culture and religion
        
        :female-judge::skin-tone-5: HRC Lubicon Lake Band v. Canada
        
        1 more item...
    - - :bookmark: Civil and Political Rights
        
        State abstention
        
        limitations to individuals' rights
        
        respect for others
        
        ordre public
        
        public health / morals
        
        restrictions provided by law
        
        :bookmark: Covenant on Civil and Political Rights
        
        applicable to
        
        Art. 2: individuals within territory and under jurisdiction of State Parties
        
        GC 31: anyone within power or effective control of State Party
        
        GC 31: individuals, with collective dimension
        
        implementation
        
        at national level
        
        immediate, erga omnes obligations, positively and negatively
        
        no direct horizontal effect (between private actors)
        
        vertical effect: citizen-to-state
        
        derogation
        
        in times of public emergency
        
        to the extent strictly required
        
        measures consistent with other obligations
        
        no discrimination clause
        
        except for non-derogable rights
        
        =/= ius cogens
        
        treaty may contain more non-derogable rights than ius cogens
      - :bookmark: (Covenant on) Economic, Social and Cultural Rights
        
        Progressive realisation of the rights
        
        without discrimination
        
        except in developing countries: limitations for non-nationals
        
        immediate obligations
        
        core obligations: must always be met, no derogations/limitations
        
        non-retrogression
        
        tripartite
        
        obligation to respect
        
        obligation to protect
        
        obligation to fulfill
        
        application
        
        individuals with collective dimension
        
        no reference to jurisdiction
        
        extra-territorial application
        
        :female-judge::skin-tone-5: ICJ Wall
        
        territories over which a State Party has sovereignty and exercises territorial jurisdiction
        
        :female-judge::skin-tone-5: ICJ Congo v. Uganda
        
        acts done exercising jurisdiction
        
        no clause on derogation
        
        limitations to individuals' rights
        
        as determined by law
        
        BUT compatible with nature of rights
        
        AND for promotion of general welfare in democratic society
      - General Comments' structure
        
        Availability
        
        Accessibility
        
        Non-discrimination
        
        Physical
        
        Economic
        
        Acceptability
        
        Adaptability
    - - :computer: Monitoring Bodies
        
        Political bodies
        
        General Assembly
        
        Human Rights Council
        
        Universal periodic review: every country should regularly report
        
        Mechanism to review HR situations
        
        Communication procedure: gross and systematic violations
        
        Individuals can submit communication regarding violation in own country
        
        State representatives
        
        Seats can be suspended
        
        Security Council
        
        Expert bodies
        
        ICJ
        
        Treaty-specific bodies
        
        Human Rights Committee
        
        State Reporting Procedure
        
        Periodic regular reports
        
        Shadow reports by NGOs
        
        Individual complaint procedure
        
        Optional protocol
        
        2 more items...
        
        General comments
        
        Advisory Committee of HR Council