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PUBLIC INTERNATIONAL LAW: CONCEPTS - Coggle Diagram
PUBLIC INTERNATIONAL LAW: CONCEPTS
PUBLIC INTERNATIONAL LAW vs
PRIVATE INTERNATIONAL LAW
PIL:
WHAT: BODY OF
PRINCIPLES, NORMS, AND PROCESSES
Public International Law is a body of principles, norms and processes
PIL
USE:
REGULATE
RELATIONS OF STATES AND INTERNATIONAL PERSONS
which regulate the relations of States and other international persons, and
PIL:
USE:
GOVERN
CONDUCT AFFECTING INTEREST OF INTERNATIONAL COMMUNITY OF STATES AS A WHOLE
governs their conduct affecting the interests of the international community of States as a whole [MAGALLONA]
BODY OF PIL
Treaties and international conventions
Customary international law
General principles of law
[Art. 38(1), ICJ Statute]
SUBJECTS OF PIL
States
International organizations
Individuals
PRIL:
WHAT: BODY OF
RULES OF THE DOMESTIC LAW OF A STATE
Private International Law is the body of rules of the domestic law of a State
PRIL:
APPLICABLE WHEN A LEGAL ISSUE CONTAINS A FOREIGN ELEMENT
that is applicable when a legal issue contains a foreign element,
PRIL:
DECIDED WHETHER APPLICABLE
OR RELINQUISHED
and it has to be decided whether a domestic rule should apply foreign law OR relinquish jurisdiction to a foreign court [AUST].
The "foreign element" spoken of here, what is it?
An element foreign to the domestic law or a domestic element foreign to international law?
BODY OF PRIL
Domestic laws for legal issues containing
foreign elements
SUBJECT OF PRIL: INDIVIDUALS
Individuals (private persons)
OBLIGATIONS ERGA OMNES
DEFINITION: OBLIGATIONS ERGA OMNES
Definition: Obligations erga omnes are
“obligations of a State towards the international community
as a whole
,”
which are the “
concern of all States
” and
for whose protection all States have a
“legal interest”
[Barcelona Traction Case (ICJ, 1970)].
TO WHOM OWED:
COMMUNITY AS A WHOLE
To the international community as a whole
VIOLATIONS MAY BE ESPOUSED BY ANY STATE
In contrast to Inter Se, any State may bring a claim
EXAMPLES OF OEO
AGGRESSION
Prohibition of acts of aggression;
GENOCIDE
Prohibition of genocide;
BASIC HUMAN RIGHTS
Obligations concerning the protection of basic human rights [see also Barcelona Traction Case (ICJ, 1970)];
SELF-DETERMINATION
Obligations relating to self-determination [see also East Timor Case (ICJ, 1995); Palestinian Wall Advisory Opinion (ICJ, 2004)];
COMMON SPACES OBLIGATIONS
Obligations relating to the environment of common spaces.
[Institut de Droit International (“IDI”), Resolution on Obligations erga omnes in International Law (2005) (hereinafter “IDI Resolution”)]
WHERE CLAIMS ARE BROUGHT:
STATES MAY BRING CLAIMS
BEFORE THE ICJ or
OTHER INTERNATIONAL JUDICIAL INSTITUTION,
REGARDING COMPLIANCE WITH THESE OBLIGATIONS
Other States have standing to bring a claim to the International Court of Justice (ICJ) or other international judicial institution in relation to a dispute concerning compliance with that obligation [Art. 4, IDI Resolution].
SUBTYPES OF OEO
Types: Some authorities [e.g. IDI] classify erga omnes obligations into either:
OMNIUM
- erga omnes omnium; or
OMNES PARTES
- erga omnes partes
[see Art. 1 IDI Resolution].
ERGA OMNES OMNIUM
BASIS:
GENERAL INTERNATIONAL LAW
TO WHOM OWED:
THE INTERNATIONAL COMMUNITY,
IN ANY GIVEN CASE
INTEREST:
THE COMMON VALUES OF THE
INTERNATIONAL COMMUNITY
AND ITS CONCERN FOR COMPLIANCE
1 more item...
ERGA OMNES PARTES
BASIS:
MULTILATERAL TREATY
TO WHOM OWED:
ALL OTHER STATES PARTIES
TO THE SAME TREATY,
IN ANY GIVEN CASE
INTEREST:
THE COMMON VALUES OF THE
STATES PARTIES
AND THEIR
CONCERN FOR COMPLIANCE
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THESE DISTINCTIONS ARE NOT
APPLIED BY THE ICJ
The ICJ has not applied these distinctions in opinions where it discussed erga omnes obligations
What's the consequence of that?
If writers make these distinctions, I think that's because there's a difference between what happens on the ground as opposed to what the ICJ acknowledges.
That would mean that the ICJ only declares that all of the states are complying with the obligations erga omnes, even though that's not true.
OBLIGATIONS INTER SE
These obligations are owed to
particular
states.
VIOLATIONS MAY BE ESPOUSED ONLY BY STATES AFFECTED
Violations may be espoused only by States specially affected by the breach
When we say "espoused", does that mean "committed" or "brought an action against"?
JUS COGENS
DEFINITION: JUS COGENS
A jus cogens norm is a “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. 53, Vienna Convention on the Law of Treaties (hereinafter “VCLT”)].
JUS COGENS = PEREMPTORY NORM
Alternatively called peremptory norm of general international law
EXAMPLES OF JUS COGENS
The prohibition against the use of force under the UN Charter [Nicaragua Case (ICJ, 1986)];
Law on genocide;
Prohibition against apartheid;
Self-determination;
Crimes against humanity;
Prohibition against slavery and slave trade;
Piracy
[BROWNLIE; MAGALLONA]
ICJ HAS ONLY ACKNOWLEDGED PROHIBITION ON USE OF FORCE AS
JUS COGENS
There is no authoritative listing of jus cogens norms and erga omnes obligations. Only the prohibition on the use of force has been declared by the ICJ as a jus cogens norm. Note that the decisions of the ICJ are not per se rules of international law, but only a subsidiary means of determining international law
TREATIES CONFLICTING WITH JUS COGENS ARE VOID UPON CONCLUSION
Treaties conflicting with jus cogens norms: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law” (i.e. a jus cogens norm) [Art. 53, VCLT].
JUS COGENS vs ERGA OMNES
JUS COGENS
Pertains to the
non-derogability of a norm
and the validity (or invalidity) of rules and acts that conflict with it
ERGA OMNES
Pertains to the
legal interest
of a State in the violation of a norm.
CONCEPT OF EX AEQUO ET BONO
DEFINITION: EX AEQUO ET BONO
This means, literally, “what is equitable and good.”
It denotes that a court may decide a case on the basis of justice and equity, and not be bound by technical legal rules [PELLET].
The court may apply this standard to decide a case when the parties to the dispute agree thereto
[Art. 38(2), ICJ Statute].
This should not be confused with the ability of the ICJ to apply equitable principles in a case.
Wait so what's the difference between
"Ex Aequo Et Bono" and "Ability to apply equitable principles in a case"?
From what I see, Ex Aequo Et Bono has a mention of
not being bound
by technical legal rules while
applying
equitable principles may be another.
"Ex Aequo Et Bono" is invoked to mean "we are not bound by technical legal rules in the name of equity and what is good" while applying other equitable principles (like maybe estoppel) is just... applying an equitable principle other than Ex Aequo Et Bono.