Beruflich Dokumente
Kultur Dokumente
1
organizations
- Actual text of treaties
Customary law is the law which has evolved from the practice or customs of
states
The following elements are required in order for customary law to evolve:
2
3. Generality of practice: depending on the subject matter, the practice
must be common to a significant number of countries. Qualifications for
generality: a) special weight will be given to the practice of those states
whose interests are specifically affected by the subject matter of the rule,
b)Persistent objector: when a state objects from the onset on the
emerging practice, then this state is not bound by the custom, c)local
customary law developed between two states may complement or
derogate from the common custom
Advantages:
- It enables international law to develop in line with the needs of the time
- The scope of custom is as varied as the activities of states and therefore
its potential as a source of international law is virtually unlimited
Disadvantages:
3
a progressive development of new custom. In all cases, a treaty is
superior to customary law.
- If the treaty was introduced later, and provided that it does not
contradict the fundamental principles of international law, then
states that are party to the treaty are bound by the treaty and non-
party states are governed by the custom (states will have different
rights and duties with different states in respect of the same subject
matter)
- If the custom developed after the treaty, the treaty will continue to
govern relations among its parties (the treaty could be modify if
there is consensus among its members)
- Natural law doctrines: rules derived from natural law are said to
have pre-existing legal validity irrespective of a treaty or custom
- Material sources: general principles of law may be purely
descriptive of general doctrines
- Rules and principles common to all legal systems: those
procedural and administrative rules which are inherent in the
concept of every legal system and therefore part of the law of every
state are included in international law to ensure that it is common to
all legal systems
- Principles of equality: they constitute part of international law
and have often been applied by international tribunals
4
- General principles of international law: principles that are
fundamental in the international context such as state sovereignty
or a states jurisdiction within its own territory
5
Chapter 3: Law of Treaties
Law of treaties is the body of international law which deals with the
procedural and substantive rules governing the use of treaties as a source of
international law. These rules deal with entry into force, termination,
interpretation, reservations and the relationship of treaty law to custom.
Most of the code of treaty law is found in treaty form supported by custom.
What is a treaty?
6
1. Declarations of acceptance under the optional system made by
states under the statute of the ICJ
2. Unilateral statements of states: if it is the intention of the state was to
make those statements binding
3. Legal binding acts in national law: when states enter into relations
legally binding in national laws, such as contracts with other states,
companies or even individuals. In this case, the law of either state will
apply. However, if this legal obligation take effect in international law
(the rights and duties arising under these obligations are regulated in
accordance with international legal principles), the source of that
obligation (i.e. the national law) might be regarded as a treaty.
4. Acts giving rise to customary law: including statements and vote at the
UN General Assembly to adopt assembly resolution give rise to norms
or customary law
7
- Other parts of the Convention lead to progressive development of new
customary law
States that did not participate in the negotiations leading to the treaty
express their consent to be bound by the treaty through accession.
The date of entry into force of a treaty is either determined by the treaty
or by the negotiating states. If not specified by either case, the Vienna
Convention states that a treaty enters into force once consent to be
bound is established by all negotiating states
A state is legally obliged to refrain from acts that defeat the object and
purpose of the treaty between its consent to be bound and ratification or
8
expressing that it does not wish be party of the treaty and also between
consent and entry into force provided that the latter is not delayed. (pre-
treaty obligations).
9
Reservations are unilateral statements made by a state at the time it gives
its consent to be bound by a treaty or later which are meant to modify or
exclude an otherwise binding treaty obligation. The pre
10
time the treaty was adopted what it was
2. Dispositive treaties: treaties which create legal regimes bound for the
whole world (such as delimitation of boundaries treaties)
Invalidity:
11
7. If there is problem in formation, the treaty becomes invalid
Termination/ suspension:
What are the circumstances under which a state can invoke the
invalidity of a treaty?
12
Chapter 4: International Law and National
Law
The two main theories explaining the relationship between international law
and national law are: Monism and Dualism. There is a third theory claiming
Different Subject Matter:
Monism:
1. International law and national law operate in the same sphere of
influence
2. the monist theory supposes that international law and national law are
simply two components of a single body of knowledge called law
3. They are both concerned with the same subject matter
4. Conflict between both laws: because they operate concurrently over
the same subject matter, a conflict may arise between the two
(international law may require one result and the provision of national
law another) when conflict arises, international law prevails.
5. The superiority of international law because: a) it is the basic norm of
all law and from which all law gains its validity (states should behave
as they should have customarily behaved), b) it is often seen as the
best guarantee for human rights as states are seen as a collection of
individuals and not a legal entity in its own right, national law cannot
be trusted with human rights as it is often used to prosecute them, c)
both systems are part of a hierarchical legal order with natural law at
the top, followed by international law then national law.
6. In case of conflict, states have legal responsibility to conform their
national legislation with international law and if they do not, national
courts should give effect to international law and not to its own
domestic law.
Dualism:
1. International law and national law do not operate in the same sphere
2. The dualist theory supposes that there are dual legal systems
operating simultaneously in respect of the same rights and obligations
with international law regulates the relations between states whereas
13
national law regulates the rights and obligations of individuals within
states.
3. They both deal with the same subject matter
4. The effect of dualism is that a government may be behaving perfectly
lawfully within its own territory even though its conduct my entail
international responsibility. In other words, international law cannot
invalidate national law and vice versa and the rights and obligations
arising under one system are not automatically transferred to the other
5. Both laws are superior within their own jurisdictions the decision on
which one to use depends on the subject matter (but usually
international courts apply international law and national courts apply
national law)
6. The rationale for the dualist theory is to prevent the executive from
being able to create law for its citizens without observing the domestic
constitutional requirements necessary for law creation
1. Denies that international law and national law operate in the same
sphere
2. Denies that they deal with the same subject matter
3. Accordingly, they never contradict each other as systems of law (it is a
theory of coordination)
4. If a conflict arises, national courts give effect to obligations under
national law and international courts give effect to obligations
international law unless a rule in either law says otherwise
a) it is the basic norm of all law and from which all law gains its validity
(states should behave as they should have customarily behaved)
b) it is often seen as the best guarantee for human rights as states are seen
as a collection of individuals and not a legal entity in its own right,
national law cannot be trusted with human rights as it is often used to
prosecute them
c) both systems are part of a hierarchical legal order with natural law at the
top, followed by international law then national law.
14
How could national law be used in front of international courts and
tribunals?
National law could be an issue before international laws and tribunals as:
15
Incorporation: a rule of international law becomes part of national law
without the need for legislation or national courts to expressly adopt it.
Transformation: in order for international law to become part of the
national legal system, it has to be expressly adopted by the state.
16
Chapter 5: Personality, statehood and
recognition
1. State
2. other territorial entities
3. international organizations
4. individuals
5. corporations
6. Other entities: governments in exile, insurgent communities (Kurdish
nationalists), representative organizations (PLO), historical bodies (holy sea).
What are the main capacities of the subject of international law (a legal
person)?
Subjects of international law that have all of those capacities are states and
international organizations. Other subjects may have some or all of the capacities in
varying degrees and for particularly purposes.
There are two types of personalities of international law based on the way they are
achieved:
17
recognized by states that they may have some competence in the field of
international law.
2. Defined territory: a state must have some definite physical existence that
marks it out clearly from its neighbors
4. Capacity to enter into relations with other states: the territory must
have legal independence in order to be regarded as state (it must not be
18
under the direct or indirect control of another state). In this case, states have
the legal capacity to enter relations with other states on their own behalf as a
matter of right
What are the theories on the effects of recognition on the legal status of
the recognized body?
As such, the legal effects of the recognition are limited: 1) the act of recognition
is not decisive of the new entitys claim to statehood because that status is
conferred by operation of international law and 2) the state or government is
still entitled to the rights and subjects to the duties in international law whether
or not it is recognized by other states
19
Chapter 6: Jurisdiction and Sovereignty
A state may not exercise its power (jurisdiction, authority) in any form
in the territory of another state
1. the state has power over all persons, property and events occurring
within its territory.
2. No other power, including the United Nations may exercise and
enforcement jurisdiction in state territory
20
3. Matters arising within the domestic jurisdiction cannot form the subject
matter of international claims, save in exceptional cases (such as when
a state violates human rights in it territory)
4. the nature of territorial jurisdiction can be modified either by general
principles of international law or by specific obligations freely taken by
the territorial sovereign (such diplomatic immunities, right of transit
passage in territorial water, military bases for foreign states)
1. the state has power over all persons, property and events occurring
within its territory.
2. No other power, including the United Nations may exercise and
enforcement jurisdiction in state territory
3. Matters arising within the domestic jurisdiction cannot form the subject
matter of international claims, save in exceptional cases (such as when
a state violates human rights in it territory)
4. the nature of territorial jurisdiction can be modified either by general
principles of international law or by specific obligations freely taken by
the territorial sovereign (such diplomatic immunities, right of transit
passage in territorial water, military bases for foreign states)
21
2. Nationality jurisdiction: a state may exercise jurisdiction over its
nationals wherever they may be when the offence took place. A national
is also entitled to the diplomatic protection of their state and at the same
time are subject to its civil and criminal jurisdiction. The jurisdiction will
not be exercised until the individual physically comes within the territory
of their state (unless the matter is dealt with by the state in whose
territory the event occurred although nationality jurisdiction has become a
recognized legal right for the state).
4. Protective jurisdiction: a state may assert its authority and operate its
national law over acts that produce damaging effects on that particular
state irrespective of where those acts took place or who committed them.
A state may claim territorial jurisdiction for all matters arising within its
territory. The approaches to interpreting territorial jurisdiction are:
22
3. Extra-territorial jurisdiction: when acts taking place abroad are
offences in local jurisdiction, in which case individuals concerned may be
made subject to local courts (such as terrorism acts) but this is an usual
jurisdiction
There are two issues that arise from the claim to passive personality
jurisdiction:
23
3. Cession and treaty: when one state cedes (gives up) a piece of
territory to another by treaty. The state seizing the territory must be
the legitimate sovereign of that territory in order for the acquiring state
to gain title to territory.
24
territory that is part of a state provided that they can achieve the
prerequisites for statehood identified in international law. Ethnic groups
seeking autonomy in their states may enjoy a second level of self-
determination in that their culture, social organization and religious
preferences are respected by the state which they are part of.
25
When can a state have rights and/or jurisdiction in the territory of
another state?
There are cases when a state grants limited rights to another state over its
territory by treaty or by way of customary law. These rights include the right
of passage in the states territorial waters, fishing rights, and right to
establish military basis. The case of military basis also includes granting of
limited jurisdiction.
What are the areas outside the jurisdiction of any state? How is the
use of these territories regulated?
3. The arctic: the arctic area is subject to the same legal regime as the
high seas, meaning it is only to be used for the common good of
mankind, it is not to be used for nuclear weapon testing and
excavation of natural resources is regulated by an international body.
26
Chapter 7: Immunities from National
Jurisdiction
What does the principle of state immunity entail?/ What is state
immunity?
1. Issues that can only be raised in the courts of the concerned states
such as the validity of constitutional or legislative acts of a state.
2. Issues that do not raise questions of national law at all such as the
validity of treaties
3. Actions of states within their own territory (especially with regard to
their own nationals) or actions of states in the conduct of their own
foreign affairs
There are five views on the rationale behind/ basis of state immunity:
1. Under international law, states are legal equals no state has authority
over another state which means states has immunities from the
27
jurisdiction of other states. The sovereign equality of states may even
be a rule of jus cognes. In other words, it is legally impossible for one
sovereign power to exercise authority by means of its legal system
over another sovereign power.
2. Even though each state has absolute territorial sovereignty, that state
waives that right and forgoes its absolute right voluntarily as a
privilege for the other state that acts within its territory. The reason is
that without such privilege, no foreign state would be willing to
conduct trade with the nationals of any other state.
3. National courts should not look into matters of policy issues where a
foreign state is concerned
28
What are the grounds/basis used to distinguish between state
commercial acts and sovereign acts? What is the criticism of each?
29
What are the types of state immunities?
30
and protect free communication for official purposes with the home
state. The correspondence to the mission is also inviolable and the
diplomatic bag must not be opened or detained.
31
Chapter 8: The Law of the Sea
What are the sources of the law of the sea I international law?
The current body of international law governing the law of the sea is a
mixture of customary law and treaty law both bilateral and multilateral. The
key sources of the law of the sea are:
1. The 1958 Geneva conventions: The Territorial Sea and Contiguous Zone,
The Continental Shelf, The High Seas, The Fishing and Conversation of
Living Resources of the High Seas
2. The 1982 Convention on the Law of the Sea and the 1994 Agreement on
the Deep Sea Bed
What is the relation between the 1982 law of the sea treaty and the
1958 Geneva conventions?
Many of the articles are repeated verbatim (in the exact same words) or with
minor modifications
- If both are parties to the 1958 conventions but only one is party to the
1982 convention, their relation is governed by the 1958 conventions (for
example, the US is member to the 1958 Conventions but they are not as
comprehensive as the 1982 Convention)
- If a state is not party to any of the conventions, its relations with every
other state is governed by customary law
What is the relation between 1958 conventions and 1982 law of the
sea treaty on one hand and the customary law of the sea on the
other?
32
1. The 1958 conventions and the 1982 convention have contributed to
the development of customary law
What are the territorial water areas and high sea areas for each
coastal state?
In the territorial sea, the state has territorial rights (sovereign rights) and not
just functional rights. These rights include:
33
What are coastal state obligations (other state rights) in the
territorial sea?
- Under 1958 Geneva convention: states must grant all foreign ships the
right of innocent passage (a suspendable right)
- Under the 1982 law of the sea, states must grant foreign ships the
right of passage (which is non-suspendable)
- The state may not exercise criminal jurisdiction over foreign vessels in
territorial sea (with exceptions)
- The state should not stop or divert foreign ships for purposes of
exercising civil jurisdiction
A zone of waters beyond the outer edge of the territorial sea contiguous to
(sharing common borders with) coast and territorial water and measured
from the baseline of the territorial water
State rights in the contiguous zone are jurisdictional rights (functional rights)
for limited purposes and not sovereign rights. They include:
34
- Delimitation: Maximum of 12 miles from baseline of territorial sea (in the
1958 Convention) and a maximum of 24 miles from baseline of territorial
sea (in the 1982 Convention)
35
What is the Exclusive Economic Zone (EEZ)?
The EEZ is a belt of sea, adjacent to the coast, extending up to 200 miles
from the baseline of the territorial sea (it is 188 miles in width)
- Delimitation: the EEZ extends up to 200 miles from the baseline of the
territorial sea for adjacent or opposite states: determined case by case
in a way that achieves an equitable solution or the great good in line
with international law
State rights in the EEZ are sovereign rights but not sovereignty: state has
exclusivity but not control and ownership (in other words, many of the
freedoms of the high sea for all states reserved). The right is also not
inherent in statehood (it must be claimed). These rights include:
- Conducting research
- Other states lose the freedom to fish (since state has sovereign rights)
- State can arrest foreign vessels violating its exclusive rights to the
natural resources
- Other states shall have due regard to the coastal states rights and
duties and shall comply with the states laws and regulations
- Delimitation: the EEZ extends up to 200 miles from the baseline of the
territorial sea for adjacent or opposite states: determined case by case
in a way that achieves an equitable solution or the great good in line
with international law
36
- cannot interfere in commercial activities of other states (e.g. by
enforcing customs)
- must determine the allowable catch: If the state cannot harvest the
predetermined allowable catch, it shall give other states access to the
living resources up to the limit of the allowable catch
- Delimitation: The inner edge of the shelf is the outer edge of the territorial
sea. Its length is up to 200 nautical miles (370.4 km) from the baseline of
the territorial sea (or beyond). For adjacent or opposite states: shelf is
divided on basis of natural prolongation in order to achieve an equitable
result
The state has sovereign rights (exclusivity but not sovereignty) and waters
above the shelf retain their status as high seas(unless the EEZ regime is
operated). The right to a continental shelf is inherent in statehood (does not
have to be claimed or recognized by other states). These rights include:
- Other states need permission to explore and exploit the resources of the
area
- Delimitation: The inner edge of the shelf is the outer edge of the territorial
sea. Its length is up to 200 nautical miles (370.4 km) from the baseline of
the territorial sea (or beyond). For adjacent or opposite states: shelf is
37
divided on basis of natural prolongation in order to achieve an equitable
result
Advantages:
Issues/ disadvantages:
Rules governing each regime (median line for territorial sea, equity
principle for EEZ and the shelf) should not be discarded in favor of a
general rule unless the facts in the specific case justify this as a matter
of international law
The bottom of the sea outside the territorial water (in the high sea) starting
at the outer edge of the juridical continental shelf used for exploration of
mineral resources (oil, manganese, cobalt and copper)
What are the changes in the deep sea bed regime between the 1958
Convention and the 1982 Convention? / What are the objections of
industrial states to the 1982 deep sea bed regime?
The sea and ocean floor were not open to acquisition by any state
38
Doctrine of the freedom of the sea: any state is permitted to take
whatever resources it is capable of harvesting so long as it did not
interfere unduly with the legitimate uses of the sea by other states
All parts of the sea except internal waters, the territorial sea, the EEZ and
archipelagic waters of an archipelagic state
39
What are state rights in the high seas?
- Freedom to fish
State right to transit passage through straits was defined in the 1982
Convention. Before that, states had a non-suspendable right to innocent
passage. The scope of the transit passage right is as follows:
It applies only to those straits which pass through the territorial sea
It is only binding for states that are parties to the 1982 Convention. It
did not develop to customary law (non-party states have non-
suspendable innocent passage right)
40
41
What are archipelagos?
Delimitation
States may use straight baselines to join the outer islands to enclose
its territory.
These baselines will be the baselines from which the territorial sea is
measured.
The 1958 Convention stipulates that other states have the right of
innocent passage through archipelagic waters
State has the right to suspend the right of innocent passage in order to
avert a threat to security
An Island is a naturally formed area of land which is above water at high tide.
Rocks which cannot sustain human habitation or economic life of their own
are not covered in the definition and shall have no economic zone or
continental shelf
Delimitation
They may cause a seaward extension of the main territorial sea (if they
are close to the coast of a state)
42
May be used as points from which to draw straight baselines (is the
coast is indented)
A Bay is a large indentation (more than a mere deviation from the coast line)
along a states sea coast
Delimitation:
There are two cases for delimitation of territorial water in relation to the bay:
If a bay can be enclosed by a baseline (for the territorial sea) across its
mouth, this means the bay is considered internal waters for the coastal
state and an extension to its territorial water. In this case, the territorial
water starts from the bay closing line. (this is currently the customary
international law)
If the starting point for measurement of the territorial sea is around the
coast of the bay, both areas for internal waters and territorial water is
reduced.
Jurisdictions
Obligations
43
44