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Public International Law- Monday 10.10.

2016

ALTERNATIVE PERSPECTIVES IN IL:

Weve already talked about the arrival of decolonizated states in the GA and the changes in the
political agenda that this brought. Provide a bit of contest: IL in the last century was used as a
mechanism to further colonization; a way to serve colonial interests and civilize the South. Someone
say, when we talk about human intervention now, that its a way for sovereign power of North to
impose again their values.

1. 3RD WORLD APPROACH: look at the historical contest. Wondering why some states should
be involved in some laws that they didnt contribute to create. Discussion on sovereignity:
colonies were excluded from those discussions. Looking at the impact of this experience in
the Global South. Aiming to relate IL to the perspective of the interest of the people, not the
states interest in the colonies. These interests concerned mainly armies, not social justice or
equal sovereingity. The aim is to create a new form of International Law as a mechanism of
emancipation for oppressed people, to reform social justice. Some people are very skeptikal
about the history of IL in the 19th Century and look at issues such as legality of treaties, so
traditional instruments used by IL, as ways to exploit the freedom of the people from the
Global South. One of their aim is to make IL more partecipatory and one of the main issues is
the exclusion of the Global South from the UN.
The only binding instrument for them are resolutions of the Security Council, while the
General Assembly has just a secondary role in participating at debates. One of the biggest
issues in their agenda is to balance the role of both Security Council and General Assembly.
Some members of this approache argue that they created a system of norm-makers and
norm-takers, the former are the Global North, the latter are the Global South. (Example:
Jugoslavia and International Criminal Court.)

honestly, she gave and example about South Africa and the Corn situation but I had no idea
what she was talking about, I hope its not important! But if you guys understood it, please
lets add it to the notes.

2. SOCIALIST PERSPECTIVE: during the rain of the Soviet Union there was a strong adoption of
IL from the Soviet perspective: IL was legitimated to the extent that it proclamied the objects
of socialism. Breznev doctrine: the invasion of a state was legal, in spite of article 2.7,
because i served the aims of socialism. Reagan doctrine: a state can intervine in other states
affairs, in order to re-establish International democracy.
Judgement of the International Court of Justice in 1985 in the Nicaragua-USA case: first
explicit prohibition of the use of force. Ideological justifications dont justify the use of force
The idea that ideology could over-right the fundamental principles of the UN Charter is
rejected in the Nicaragua case. Important approach in IL during the Cold War.

3. FEMINIST PERSPECTIVE: think about how IL can be integrated by representing women. First
thoughts when people think about this approach:basically left wing, obvious points of view.
What does the feminist perspective highlight in IL? What did the UN do to integrate womens
perspective? And what were the successes of the feminist approach?
Wrong Statue of the International Criminal Court in 1998: sexuality crimes are now
considered International crimes.
UN Resolution 1325 by the Security Council: require womens partecipation at alla decision
making levels.
After conflicts, men are gone or are coming back to a society that women were ruling for the
duration of the conflict, thus, excluding them from negotiations wouldnt be very effective,
as they were the ones who have been maintaing the ungoing society in mens absence. The
Security Councils resolution requires womens partecipation at all decision making levels and
peace processes, including gender training in peace-keeping operations. The main problems
in these operations are sexual assault and women abuse.

To understand these alternative approaches, it is fundamental to read their literature while


thinking about the time when they were written.

HOW DO YOU ASSESS IL? What criterias to apply and why?

Look at:

Complains at International treaties and International customary law


Sanctions and enforcement
Rule of law: International law is neutral and all States are equal. This is true when IL is
applied by courts. But when States sign treaties, its not that neutral anymore, as treaties
often reflect States interests.
Is IL beneficial? I sit effective? Do States consent?
Bias? Sorry guys im not sure about this word she used

DIFFERENCES BETWEEN IL AND DOMESTIC LAW SYSTEM:

No hierarchy
No enforcement
Individuals complain in a different way if they apply to Internation Courts or Domestic ones.

FACTORS TO CONSIDER WHEN ASSESSING THE IL SYSTEM:

Due to globalization, many of the challenges States are now facing have become global (migration,
trade, immigration etc) and to solve them, it is fundamental to use an International frame work and
assess IL, a sit would be impossibile to use just the domestic government. (Example: Britain, altought
the Brexit, still needs to come to terms with other european states, talikng about immigration or
trade).
But looking at how the IL is applied, we notice that this is done by domestic judges. So, IL is
increasingly important.
The Habit of the Law: states usually comply because its easier for them, than to follow the rules.
Legality: legality of power in International Courts. Increasing habit to use ILs principles as a force of
legality (see case study of last week: refering to different ideas but with the same terminology). The
idea of using international principles as a force of legality is now really essential.
No enforcement mechanism because of high numbers of complies.

PUBLIC INTERNATIONAL LAW


MONDAY 10.10.2016, 16.00 PM

What International Law does is provide multiple mechanisms as a means of pursuing resolutions to
the conflict, whether they mean diplomatic, whether they would be about the retrieve/retreat etc.
we went through all these different dimensions. And the compliance within international law is to be
influenced by national legal systems (Japanese prosecutor and the political pressure from both sides
Japan and China- )

But international laws provide a sort of code of conduct, rules of the road, so that conflicts dont
escalate. They also help both sides of the conflict anticipate what the next step is going to be, so that
they actually make conflict manageable and predictable in many ways.

One of the points that was raised towards the end was that international law in itself can motivate
certain adversarial (acts), in this case even the seizure of throneship in itself was an attempt to
manifest jurisdiction

so there are certain ways when states act it may not always be and necessarily be in a peaceful
way when theyre trying to, for instance as in this case, to assert sovereignty and their claim to title.

Other principles and norms that ended up framing the dispute showed us that this dispute, like all
international law disputes, covered a whole range of different fields of law, so we talk about
jurisdiction treats --- settlement of disputes --

-Were going to talk about the basic principles and norms

Principles

Were focusing today on the UN declaration of friendly relations in international law

You should read the declaration right next to the UN charter, look on article 2

This is the UN declaration of friendly relations, which is identifying the overwriting principles of the
international community. So whats important to remember when you look at article 2 is that is
talking about the principles which cover the confidence of the United Nations as an institution and
thats important to recall that, when you look at this charter which is about the United Nations as a
government institution, as an international organization.

The UN declaration of friendly relations takes the UN charter and tries to adapt it so that it becomes
relevant and that the principles and the article 2 are realised in a contemporary context as
contemporary as for us now, the reflex of the reality of a newly constructed international community.
If you read this document you realize its a historical piece, it throws you back into the concerns of
the Cold War period in the 1960s/1970s, but it is still referred to frequently as something that
someone at the time contested, but has increasingly been seen as customary international law.

In elaborating the principles of the United Nations charter, what effectively is doing is elaborating the
principles. The US government at that time and other western states wanted to make very clear that
this declaration was not intended to extend or transform the obligations of the UN charter, this was
an elaboration. The problem that you have is that many states contested what the legal status of this
instrument was, as a general assembly resolution some states were also of that view.

What you see with these declarations, what youll see in many areas of international law, that the
development of international law often starts in the general assembly.

[For this purpose] What you have is a non-binding international instrument that was to become
really a corner stone in international law, whose provisions seemed to reflect the basic principles.

You should always refer to the UN charter but you should also refer back to the act of declaration, it
is a very core instrument in international law, so you should become familiar with it. And again, as
Ive emphasized, it shows really the new world of developing states that saw that between them they
had a common interest in terms of their opposition, to the agenda of the richer, more powerful
welfare states.

So the idea that you have to think about when we get to study sources of law with its declaration is
what parts of it simply restate existing law? And what parts of it are progressively developing
international law? And again, apply this terminology now, so when you study sources of law .. is very
useful when youre discussing many of the great areas of international law when you want to make
an argument but the law is perhaps not quite as you would like to see it but youre moving in that
direction, say the area of climate control or human rights. The terminology is what you should
become comfortable with because when youre talking about international law, which is very
pragmatic, with the combination of binding law and non-binding law, you have to be able to capture
that when describing it. So talking about the progressive development of international law is a very
useful way of capturing with precision

So when we talk about again the importance of these new states coming in to the general assembly,
you will refer to the act of declaration of the general assembly, because then you can see what weve
been talking about generally, you can see it concretely in the provisions of the declaration,, of
commitment to self-determination, to fighting racial discrimination, so a commitment to racial
equality. And turning these two principles really into formal legal principles that frame international
law more generally.

This is a universal instrument, meaning it applies to all states globally, within the United Nations its
universal, but non-binding. Very often when we talk about the universal international treaties, its
universal because all states can become parties, can sign into it as opposed to the North Atlantic
Treaty organization agreement, which only applies to those states who are invited to be members of
NATO, so thats not a treaty of universal application but many of the UN instruments are indeed
universal because they apply to all members.

So the important thing is that this declaration is non-binding and that it is now considered to be part
of customary international law and binding.

Now Im going to talk about a number of the core provisions and what they need. This is important
even though it seems very basic these principles, all of them, are familiar to you and the way in
which they connect to geopolitical , it provides nothing new or radical within your mental landscape -

Once youve incorporated this principles into your thinking, it will allow you actually to understand
the logic of international law. These principles are distinct from rules.

Whats the difference between rules and principles?


If you really kind internalize these principles, in a way the system all of a sudden and other areas of
international law make a lot of sense.

INTERNATIONAL LAW

horizontal system, so it requires cooperation between states


consent is a fundamental premise of international law (no state can be bound to anything if
they havent agreed to)
-lets talk about the concept of consent why on earth you (as a State) would you
considerate even the remotely notion that youre going to allow diplomats from the other
countries to come into your country
The only reason that you could remotely see a logic to that is the principle of reciprocity
[esempio di Obama e vicenda proposta di legge per la questione vittime 11/09]

So when you understand sovereignty, you also want to think in terms of this term that Ive
been throwing around a lot in the past few days or few lectures, with respect to jurisdiction
(talking about the principles). The exercise of sovereignty, the idea of sovereignty is that you
have the power to exercise jurisdiction within your territory and over your nationals. So
largely, it is the power of the State to exercise public functions and that includes making
laws. But do you have jurisdiction to make laws?
So if you think about it legally, sovereignty is very close to the way power is exercised, and
this comes down to the law making, law interpreting and law enforcing functions within the
state.

So if you think about it legally, sovereignty is closely linked to the way in which power is exercised,
and this comes down to the law-making, law-interpreting and law enforcing functions within the
State.

So what you really have to think about as international law is about equals, is being a system based
upon consent and reciprocity and where jurisdiction is indeed at its core. When you think about
jurisdiction you also need to be thinking now about the ways in which the physicality of jurisdiction is
changing dramatically, that these borders, these physical borders were not only important in terms of
the arrival of migration, but are understanding borders and the role of technology has become much
more important so international law is trying to catch up with these developments.

Now whats interesting if you think about the declaration of friendly relations is that its very centred
on preventing the threat of the use of force, and the UN is really a body which is focused upon the
maintenance of international peace and security this is really at the epicentre of the system, but
what you also have to realize is that in spite of the number of conflict, which I think since these
conflicts have been registered/outfit in Uppsala by the Department of Peace and Conflict Research
and in their studies what they highlight (even though youll see that different studies identify
differently war and conflict different definitions), but the database in Uppsala, the Conflict Data
Program, highlights that even since 1989, which is supposed to be this kind of new order period, you
have 144 conflicts and what they identify as 47 wars, and they identify war from non-legal
perspective, but looking at the number of related deaths.

Since 1946 you had 254 armed conflicts and of them 114 full-fledged wars and THIS is within the
period that weve seen the international legal framework has expressly considered its core
prohibition has been against the use of force.
As I pointed out, when we talk about the nature of international law what is important is not so
much that the system has failed thus over 200 times, but when states indeed try and justify the
recourse to force - they are using legal justifications, theyre not proclaiming that they have an
unfettered right to use force, but they use the force to justify, either because another state has
violated international law or they have some legitimate legal claim.

Anyway, the use of force in itself fails to be a governing norm; the use of force remains a part of the
international legal framework.

An exception on the UN charter is the right to self-defence - when the declaration was being
negotiated, this is one thing western powers were very concerned about.

And the other concern of western powers had with the advent and arrival of newly independent
states was that they did not want this instrument to provide legal justification for wars of national
liberation. Now what you see is the Security Council discussions related to the use of force you also
see a desire of western and non-western states wanting to assure that there isnt a leak that
terrorists acts are not seen as in any way the link to an exercise of the right to self-determination.

But what you do see in this instrument on the declaration on friendly relations is a rather ambiguous
statement about the role of international law and the legitimacy of armed groups of national
liberation seeking self-determination. You should really read through those provisions carefully
because theyre very much a product of their time but theyre quite ambiguous in terms of what
their kind of overall bottom line is with respect to the use of force with individuals seeking
liberation. At any given time you would have a [certain] number of groups in the world seeking some
form of autonomy or independence based upon minority, ethnic , linguistic etc. characteristics. So
the international legal system had made quite clear that the preservation of territory and integrity is
part and parcel of the corner stone of the legal framework, because the last thing newly
independent states wanted to do was to give a green light to opposition groups within their
jurisdiction.

So international law, as well study in more detail during the term, proclaims quite clearly the
importance of maintaining territorial integrity: so on one hand you have a proclamation about the
support that can be given to movements of national liberation, this is a colonial context, this is not a
post-colonial context.

So international law is actually quite conservative and quite state-centred and again, one of the core
principles you need to internalize is really the emphasis on the sovereign of equality of states.

What you have is the idea that what constitutes self-defence is changing over time, and were going
to look at that in the year of terrorism, where you may have attacks that are made in the name of
self defence

You can exercise self-defence only if you suffer an armed attack (look at article 51 under the UN
charter)

The duty that settles disputes peacefully is a corollary, its part of the idea that if you keep pursuing
your national interests with the use of force, you have to settle them peacefully.

What is important is that it is a system based on consent, you cant be compelled to go to any form
and have them resolved. (example - duty on China on its interactions with Japan)
You cannot force states to pursue any one of these resolutions, but it is really the complementary
side to the ban on the use of force, and again you need to pursue reconciliation, but how you do that
is up to you.

The area that has undergone most transformation in international law is this duty of non-
intervention

The duty of non-intervention is a shield for states that has undergone an evolution since 1945; the
parallel provision in article 2-paragraph 7.

And in terms of non-intervention, when will you interfere with the political independence and
territorial integrity of a State? So youll have to think about what constitutes the independence of a
State generally, in international law the independence of a State is a pre-consent of the State to
exercise, to make decisions.

Obviously the supplies to the use of force for example providing support (explicit or implicitly) to
rebels within a country.

But where this gets really interesting is the elaboration that you see in the declaration is: what kind
of intervention is permitted? So if you look at the language youll see that its a lot more ambiguous
when it gets to areas of economic and political intervention. And what is the difference between
intervention and interference? The question about where this malleable boundary is between the
exercise of influence in another jurisdiction is still very confused. You have the law against foreign
agents in Russia if youre a non-governmental organization in Russia receives foreign money,
because its not easy to get donor (?) money within your own jurisdiction; so you have a lot of money
coming from the U.S., and you would like to set that money youll have to declare yourself as a
foreign agent so this language, NGO carries the connotation going back to the communist area and
it implies youre in the hands and control of a foreign state. So clearly its a political act meant to pull
the reins and make civil society rely on public opinion.

But Is this foreign support for non-governmental organizations, that are the opposition by their
very definition is that intervening? Do you think thats intervention? If you give money to non-
NGOs on a foreign state, is that intervention? What about the Dalai Lama? The Chinese said it was
intervention in their domestic territory.

This issue of what constitutes intervention once you get outside of the domain of armed force is
highly contentious, it depends on whose side youre looking at. The idea that you can live in a
pristine environment with no external influences of governance, or their opposition groups in civil
society is a bit of a mythology. So when you look at this discussion of non-intervention, whether
youre talking about the right to be free from political and economic intervention, the criteria that
many use is is there an element of coercion? And if coercive, does it affect decision making, does it
affect the integrity or independence of decision making?

Much of this is just the normal day to day business in international law affairs, but it show you how
complex this idea is of non-intervention that we kind take for granted in our everyday life.

There are no clear answers to these questions its not easy to decide whats actually coercion. The
idea is that

It shouldnt influence national institutions


Assistance to insurgents should not be provided to opposition except for freedom fighters in
a colonial context.
Think about non-intervention and I want you to read the approach on non-intervention
because were going to talk about non-intervention throughout the course, because if you
followed what happened in Syria and Libya, you really need to understand what the
parameters are.

COOPERATION what happens between states when they interact with each other;

COEXISTENCE which is what the Soviets wanted, is something that is fundamentally different in
nature.

Public International Law 13.10.2016 (Thursday, 4pm)

Definition of International Law:


System of rules and principles that govern the international relations between sovereign states
and other institutional subjects of international law.

If you master the principles of international law you will mastering effectively the basic
grammar of international lawyers!!!

Principles of International Law

1970 UN Declaration on Friendly Relations in International Law 2625


The Principle of the Sovereign Equality of States
The Prohibition on the threat or Use of Force
The Duty to Settle Disputes Peacefully
The Duty of Non-Intervention
To Duty to Co-Operate
The Principle of Equal Rights and Self-Determination of People
The Principle of Good Faith

1970 UN Declaration on Friendly Relations in International Law 2625


- Overriding Principles of International Community
- New Role of Developing and Socialist
- States in the General Assembly
- Re-Stated and Progressively Developed Principles In the UN Charter
- Transforms Self-Determination and
- Racial Equality into a Formal Legal Principle
- Non-Binding but Universal Application

Assessing the Declaration


Absence of Clarity on Legal Status
Limitations as a blueprint for world order
Emphasis on sovereignty v. co-operation

(Already spoke about it last class)


So it is worth your time and attention and you will see this declaration and the principles
endorse within it in the case law that we will reading later on in the course. Thats why
although it seems kind of a very basic that we were working with building box these are
important blocks that construct the foundation of the international legal system.

The Principle of the Sovereign Equality of States


- Fundamental Premise of All
- International Relations between States
- Mirrors Art. 2.1 of UN Charter
- Gives rise to the underlying principles of consent and reciprocity in IL
- Sovereignty and Jurisdiction
- Power to a State to exercise public functions over individuals located in its territory
1. Jurisdiction to prescribe
2. Jurisdiction to adjudicate
3. Jurisdiction to enforce

Just to remind you, we spend a lot of time talking about the sovereign equality of states, have
this as a system of horizontal co-operation of states.
And how the concept of sovereignty is one that we going to address all throughout this
course. The idea - the equality of states is more on its surface, in the language, than an
actual fact. We know that there are great inequalities in terms of the power that states have,
resources that they have and indeed their position even within the United Nations; which
allocates a special position to permanent five. This is compensate by states through acting in
regional groupings.

But sovereignty again is a principle that we gonna take through the hole course and you
should be thinking about whether or not the concept of sovereignty is changing over time
when you look at how it is respected both by states and courts in relationship to different
issues. And we have seen a tremendous erosion in the concept of sovereignty to the extent
that know you have part and parcel of international legal norms, this doctrine of the
responsibility to protect.

So there has been a great transformation and in part this is come along side with the
interdependence of states that work experience in globalization.

The Prohibition on the threat or Use of Force


- Art. 2.4 UN Charter and VII
- Exceptions of the Right to Self Defence Inter-State Use of Force
- Challenges to this Regime evolve Over-time
Bombing of Hiroshima
Liberation Movements fighting Oppressive
Regimes (fighting for self-determination)

We looked at the prohibition against the use of force and the threat of the use of force. We
will be looking at a lot of case scenario. E.g.:
- Is the placement of soviet troops along the Ukrainian boarder a threat of use of
force?
- Is a physical present a use of force?
- Is a location of Nato arms a violation of international treaty law?

As with sovereignty the prohibition against the use of force has evolved over time. And
particularly know the international legal framework has more effective norms. It is
evolving in the area of cyber security This is an area where there are important
discussions going on. We are living in an area of cyber security, where technology has
outpaced the law. There is no legal framework for it so we looking at the international
law

The Duty to Settle Disputes Peacefully


- Art. 2.3 UN Charter and Chapter VI
- Complementary to ban on the use of Force (ICJ Nicaragua Case)
- Cannot be compelled to pursue an explicit mechanism for reconciliation

If you recall what of the duties here implies that although you have to settle disputes
peacefully you cannot be force to settle them before any tribunal or court unless you
explicitly consent.
South China Sea dispute with the Philippines
The Chinese refusing to acknowledge the persuading and the final judgement, argued
that they were not required to comply with the judgement because they havent
concede consented to the arbitration.
(That shows the importance of consent in international law!)

The Duty of Non-Intervention


- Effective Shield for States that has undergone steady evolution from 1945 onwards
- Applies to Interventions such as use of Force National Institutions Assistance to Insurgents
(notable exception of Freedom Fighters)
- More ambiguous when applies to areas such as:
Economic Intervention
Information Propaganda

Art. 2 VII UN Charta


Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state
or shall require the Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter Vll.

E.g. Philippines government killing people because of their connection with drugs say
the UN should not intervene in their domestic affairs.

The principle of non-intervention is a principle which also applies to states, so it is a principle


on non-intervening between states!
When you refer to Art. 2 (7) it is about the powers of confidences of the UN. Its a sloppy
mistake but it is an easy one to make. So make sure that you are aware when you are talking
about non-intervention between states you can talk about the principle of Art. 2 (7) but it is
relating to the united nations as confidences.

To Duty to Co-Operate
- Shift from International Law as a System of Co-Existence to that of Co-operation
- Expanding to Include Development:
1960 GA declares resolve to seek a better system of international cooperation whereby
prevailing disparities in the world may be banished and prosperity secured for all

You have the duty to co-operate which I compare indeed with to the duty of peaceful co-
existence which the soviets were very ardent about.
The idea of co-existence embracing a very strong concept of sovereignty, because you have
to think of states co-existing together but not co-operating or coordinating. So, it provides a
stronger concept of sovereignty in the way in which states govern their relations with each
other. And so you see in this period with the rise of a developing world that you have a shift
from international law, moving from a system of coexistence to a system of co-operation.
States becoming increasingly interdependent.
right to have the control over their own resources
Product of really globalization and of the global south beginning to articulate indeed a
priority in the framework of international law

The Principle of Equal Rights and Self-Determination of People


- States must allow oppressed peoples the right to the free exercise of self determination
- Third States cannot assist oppressor States in suppressing/or denying right of self-
determination
- Implications for the Use of Force-denied to States but allowed for Liberation Movements
- Incorporation of this Right in International Human Rights Covenants 1966 and for Rights
of Minorities

Most importantly is the right to self-determination!


What needs to be emphasised about the right to self-determination is, that it is not some kind
card blanche for every oppressed or disgruntled minority population to break off from their
host state.
That the declaration in many ways is a product or seems like a quite radical instrument when
you look at it in comparison to traditional classic orthodox international legal doctrines, or
you have the developing world kind of leading its print on it. Here you see quite a kind of
conservative approached to international law, protecting really the boundaries of the states.
So that self-determination is limited or circumscribed to the context of national liberations
from colonial powers.

(Now if you read the declaration you will see this sort of slightly modelled discussion.)
States has to allow oppressed people the rights to a free exercise of self-determination. Now
what this is come to mean in contemporary law? International law is not that you have a right
to independence. But you have a right to political participation. And to degree of input in
terms of policymaking control over resources etc.

So what effects the way in which individuals have a right to participation over their
governance but not a right to independence. So self-determination is very much a concept
that is linked to colonialism.

Third states cannot assist oppressors states in supressing or denying the right of self-
determination. So there are here obligations indeed for the former colonial power. There are
implications of the use of force that are denied to states somehow rather in this document
provide a special status and privilege to national liberation movements. And this is a very
great area of international law. And one could argue what convincingly is contested. So that
the entire declaration from beginning to end is not part now of customary international law.
There are provisions within it that clearly raise questions of at least interpretation as whether
or not there is a global consensus on its normative value.

International Covenant on Civil and Political International Covenant on Economic, Social


Rights (ICCPR) and Cultural Rights (ICESCR)
is a multilateral treaty adopted by the United is a multilateral treaty adopted by the United
Nations General Assembly on 16 December Nations General Assembly on 16 December
1966, and in force from 23 March 1976. It 1966, and in force from 3 January 1976. It
commits its parties to respect the civil and commits its parties to work toward the granting
political rights of individuals, including the right of economic, social, and cultural rights (ESCR) to
to life, freedom of religion, freedom of speech, the Non-Self-Governing and Trust Territories
freedom of assembly, electoral rights and rights and individuals, including labour rights and the
to due process and a fair trial. As of April 2014, right to health, the right to education, and the
the Covenant has 74 signatories and 168 right to an adequate standard of living. As of
parties. 2015, the Covenant has 164 parties. A further
six countries, including the United States, have
signed but not ratified the Covenant.

Both treaties (see above) were treaties from 1966 - but doesnt enter to force until you have a
representative number of signature which was a decade later. But what you have in both of
these two major human right treaties is the right of self-determination.
And here you see really the impact of a soft law instrument that is really reflecting what is
happening normatively and in the consensus among states internationally.
Long journey for a law from having been expressed by states (and usually before that
by civil society) going in and coming out of the general assembly and then
becoming embedded and codified in a binding international treaty

That doesnt happen for all ideas but you can see in the context of self-determination how this
turned to really a mega norm of international law providing a shared right of these two
treaties.

The Principle of Good Faith


- Genuine Efforts to Comply with International Obligations and Commitments

When you are working with international law, you often are working in areas where the law
isnt clear or maybe clear or not fully elaborate But you dont have really the case law
instruments to fully support your point.
So the principle of good faith is a really important one. Because when states dont comply
with their treaty obligation they often come up with rather contorted interpretations of what is
involved in that treaties obligations.
(See Hungarian response to the refugee crisis.)
Sources of International Law

e.g.
UN Charta multilateral Treaty

Declaration General Assembly resolution


when you have a resolution look at the votes!

Next to the hard law (like binding treaties, cases, documents) international law also
contain soft law. It is impacted by state practice. That makes it difficult.
But even when you get to hard law an awful lot of it isnt interpreted. And if it is interpreted
you will see that there are many different ways that different courts can interpret the same
norm.

When confronted with a problem, the first thing you have to do is to identify the respective
sources that apply. So when you are analysing a problem you always going to pick out what
the guiding legal instruments and norms are. And thats gonna be hard law and then probably
you gonna have to look at soft law and the interpretive of the case law that interprets it. And
you gonna have to assess the authority of status of any rule of international law.

If you talking about principles, please refer to Art. 2 of the UN Charta, refer to the declaration
on friendly relation. If it is part of the declaration that the court (ICJ) has written about refer
to the ICJ judgement.
The best starting place for determining the sources of international law is art. 38 (1) of the
statute of the ICJ. Article 38 makes no reference to the term sources but is rather a direction
to the ICJ as how disputes coming before it should be tackled. Article 38 is regarded as an
authoritative statement on sources of international law.

Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.

The first three regarded as formal sources whereas the last is regarded as material source.
Formal sources constitute what the law is, whereas material sources provide where the law
may be found.
No reference is made in art. 38 to a hierarchy of procedure. However, it is clear that the
article establishes a hierarchy whereby:

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

If there is no treaty then a rule of international custom should be applied

If there is neither a prevailing treaty provision nor a custom then general principles are turned
out to

In the absence of any of the foregoing, look to judicial decisions and writing as a subsidiary
means for determining law

ICJ Statute Article 59


The decision of the Court has no binding force except between the parties and in respect of
that particular case.

Soft Law refers to non-legally binding international instruments. The term includes treaties
which contain general obligations legal soft law as well as non-binding statements of
intent, codes of conduct and statements, e.g. from professional bodies non-legal soft law
Soft law must be in writing. Examples of soft law are the 1948 Universal Declaration of
Human Rights and the 1992 Rio Declaration on the Environment and Development. The
advantage of soft law is it can assist in promoting compromise and prevent deadlock. It may
become hard law, e.g. the provisions contained within the Universal Declaration are
reflected in the 1966 UN International Covenants.

Public International Law 17. October - Week 4

Topic: Sources of law


Custom Law

Customary international law which is the unwritten part of the sources of international law
Why is customary law less relied on in international law? IL is becoming regulated more and
more by international treaties and agreements
Customary international law is not as (overwhelmingly) important as it used to be in the pre-
World War II area
One has to know what to look for if identify a binding legal norm
Slippery definition of custom
Rome statute negotiated in 1992 to set up the international criminal court; treaty
ICJ Statute Art. 38 Par. 2

x aequo et bono In the context of arbitration, it refers to the power of arbitrators to


dispense with consideration of the law but consider solely what they consider to be fair and
equitable in the case at hand; but only
if the parties agree to it (see Art. 38 Par. 2) subject to consent
a) through d) of Art 38 Par 1 become irrelevant if 2 is applied
parties themselves determining the legal standards and principles that will render a
resolution to the dispute
some treaties explicitly prohibit the use of x aequo et bono as a principle
principle of consent that is determining whether or not the judges on the ICJ are going to
apply par. 2
the actual decision of the court only affects the parties that consented to this jurisdiction to
resolve an interpretation and how it supplies of a given provision of an international
instrument
first thing international lawyers do when confront with international law is to figure out with
international legal instruments are relevant: what bodies of law to you need to consult? And
are the obligations binding? Comes down to the question which laws are hard and which are
soft

ICJ Statute Art 59

The decision of the Court has no binding force except between the parties and in
respect of that particular case concept of consent

Soft law

Two conflicting interpretations


1. soft law contains normative rules do not contain precise or concrete obligations or rights but
are rules of law, normative framework, resembling principles, consider to be rules of law

2. soft law is evidence of evolving norms (Prof. Byrne considers this interpretation to be the right
one) Soft law is de lege ferende: could become, but not yet; normative rule; soft law not binding
but may indeed be an indication of law in making

Produce General Assembly Resolutions that became instruments of soft law and often end up
evolving to concrete hard law norms either to the general consensus internationally and hence
becoming a norm of customary law (slippery definition of custom) or by eventually getting a
consensus amongst states

Dealing with IL: What is the meaning of soft law? What is the source of law? Is it soft or
hard law?

Julien Assange Case

Rejecting of the ruling of UN working group (international penal) on arbitrary detention by


UK and Sweden. Is the ruling binding on the UK and Sweden? nature of the ruling is non-
binding; working group is a group of 5 academics.
Human right law human rights committee doesnt issue binding judgements, issues their
views
Question to ask when dealing with international law: Did the parties signing the treaty intend
for them to be binding?
In international law all of the legal instruments, documents and treaties are created by
different constellations of actors
Progressive development of soft law to give it more substance

Nature of the norm or instrument

UN Charter is binding; multilateral treaty, cant make reservations if you summited to it

Prohibition against slavery there are international trafficking treaties for labor and sex
exploitation, individual, multilateral treaties for the prohibition of slavery

Piracy as a crime against mankind binding, customary IL, international treaties

IOL Declaration on Fundamental principles and rights at work non-binding declaration

Rio Declaration non-binding

Declarations not binding but their principals might be in treaties, part of national customary
law

UN convention on corruption convention is the same as a treaty means its binding

Global Compact for corporate responsibility non-binding because transnational companies are not
states, very broadly framed, not legally obliged; treaties are for states

Elements of Customary IL

IJC Statue Art. 38b

Intern. Custom, as evidence of general practice accepted as law


What is state practice? what states do or fail to do
Includes acts and Omissions of official statements on specific or general issues
How states react to the acts of other states is part of the investigative process of trying to
identify what state practice is; its what they do, what they dont do and what they say
Treaties as evidence of custom (Nicaragua Case, para. 177)
Looking at the quality of practice not quantity (how is making official statements, important
state?)
4 elements of custom:
Consistency of Practice because its unwritten law one has to make a very forceful case to
prove that law exists
Generality has to be general but not universal
Duration has to go on for a while
Opinion Juris most slippery and difficult element; the way states act because they believe
that they are legally obliged
Problem with opinion juris is that you are throwing in a subjective element of assessment for
how states behave

North Sea Continental Shelf Case

North Sea continental shelf case as an example for states to be bound to IL even if they might
not have signed a specific treaty
System based on consent
Reservation to an international treaty changes states obligation, unless other states protest
the reservation
Between signing and ratification of a treaty there can be made a reservation
Do international conventions reflect customary IL?
I. Declarative (eg. Vienna declaration) > it may contain customary norms binding at the
time of its conclusion
II. Crystalizing it may constitute a final stage in a process of elaboration of customary
norms
III. Generative, de lege ferende it may propose a new norm, to be subsequently
confirmed by State practice

Consistency

Asylum Case (Columbia v. Peru) IJC 1950 deals with regional vs. universal custom
Anglo-Norwegian Fisheries Case
Idea of norm breaking and norm creations is the very nature of customary law
Substantial but not complete practice
Focus on the states that are effected

Generality of practice

generally adopted but not all states have to participate (see North Sea Continental Shelf
case)
custom used by the US to benefit from it, criticism: cherry picking by the US
relationship between treaty and custom > yet to be discussed

Persistent Objector rule

Objection needs to be initial and sustained (see Anglo-Norwegian Fisheries Case)


Blocking formation of customary law or object
Custom is more flexible, can respond to how states behave, without years of negotiations
Very rarely used
Aside from the Norwegian in the North Sea Continental Shelf Case no successful use
17 OCTOBER 16:00
Custom can really undermine the concept of consent in IL
The municipal executive branch has interest to be part of the international law, to behave a s
a good citizen.
Often, Americans have been the main actors on the table and actually forged the treaties by
their wishes, as Ronald Regan administration with the law of the sea Constitution of the
ocean, as well as with the Rome statue, where the security council play a main role because
of the pressures of the US during the negotiations, but they werent able to ratified them. In
the US it requires 2/3 of the senate to ratify an international law require ratification.
The interests of the elites that act during the negotiations can be very different from the
interests of civil society of the country so they get no political support domestically. US are
actually complaining with the law of the sea because, as it is not being ratified by hem, it has
become part of the customary IL.
International treaties can be very often being declarative of the existing customary practices
(North Sea continental shelves)

A customary law has to be perceived as binding (opinion juris)


Opinio juris how a stat act and believe about how much is a cil is binding for it. If a state has
a very little interest on a given area of law, it will be difficult that they will put on records
their objections about the existing treaties.
Customary IL can be immediate, depending upon the matter as for the nuclear weapons
Advantages of customs over treaties
- Writing, signing and ratify a treaty takes very much time and efforts
- Fill the gaps of written law
- It usually brings in as many parties as possible in the creation of international law,
resolving meanwhile the domestic opposition problems
Some norms are so fundamental for the persistence of a world order that cant be contracted
Progressive development of law. By time, declaration principles often become CIL
When you talk about CIL You have to know
- Sources (the starting point will always be the article #38 of the statue)
- Universal/regional law (If you are in an embassy you are outside the jurisdiction of a
country, free from whatever presume. This is a global custom.)

General assembly resolutions are not binding yet, but, depending on who voted them the can
become CIL.
the interpretation of the definition of refugee is not the same in every country of Europe, yet
they have all signed the Geneva convention. The reason of that is that most of IL rely on the
interpretation of domestic courts.
International law- Thursday 20.10.2016

Treaty law: really looking at state practice. Customary law develops very quickly. The reason why we
can say that IL is non-hierarchical is because international treaties regulate relations among states
with details and precision; explicit consent from states in required; long and different processes of
signing and ratifing treaties. The beginning of Treaty law is in 1969 with the Convention of Vienna,
due to the fact that states actually wanted written,clear rules to regulate their relations
pragmatism.

Why the slide about judicial trend?: not only to hightlight how the states use International treaty
law to solve their disputes, but also because International treaties always contain explicit behaviour
advices: what to do in case the other party is committing violation (for instance, they can make an
investigation process, or a trigger, or a revue process). Also, you can look in the treaty to know the
consequences of a states act.

Ex: Assads use on nuclear weapon. Often, in response to violation of using nuclear weapons, it is
used the use of force. But none convention talks about unlilateral use of force in response to this
violation. So, the idea that a state could use the force, without the Security Council authorization, in
response to a violation of a treaty, is definetely not included in the International framework.

Look at how International treaties are set up. Ex: the sea convention; the wrong statue always look
at their instrument; Refugees Recognition Rates: a clear example of how International treaties are
interpreted in very different ways across countries with different jurisdictions; these interpretations
are made by National judges, so domestic judges very strong interaction between domestic legal
framework and International legal framework.

Principles of Treaty Law:

Good Faith: look at the preambolo f the Vienna Convention and art. 26
Consent : no states can be bounded to something they didnt consent to. This is closely
related to the issue of reservasion. In terms of customary law, always check if there has been
any obligation; any precedent; any declaration.
- no coercion
Pacta sunt servanda: meaning that, if you sign a treaty youre bounded to it, with respect to
the principle of good faith. There is no way to escape the treatys obligations
Rebus sic stantibus

Treaties are over-used instruments -> really pay attention to the Convention of Vienna.

Definition: art.2 International Agreement concluded between States in written form and governed
by international law. meaning that you cant use your domestic legal system as an excuse to
modify or change obligations under International Law.

International treaties are between states, so they dont include Global Compact, or agreements
between individuals or transnational corporations and states; international corporations have their
own convention about agreements; oral agreements between states are excluded from the Vienna
Convention. But it is important to highlight that verbal exchanges can constitute binding agreements.

Also Memorandum of understanding are not considered international treaties. They are used as a
way to by-pass the complicated domestic law of having a to ratify a treaty .

Vienna Convention: entered into force in 1980; not applicable to Treaties concluded before 1980.
This is important because conflict can always go back in time and you always need to establish a cut-
off date. Always look at the extent of when the issue continues to occur.

Oral legal agreements:

Eastern Greenland Case, 1919: example of colonialism as an exported vice. Bargain about
Greenland, during the 1919 peace conference in Paris. This is a verbal agreement between
foreign ministers, diplomats, but does it constitute a binding legal agreement? Example of
quid pro quo. The Norwegian Minister promised not to make problems (quote). Example
of diplomatic discussions and what the consequences could be. Notice the rejection, in the
dissent, with respect to the Norwegian Minister argument. The Norwegian Constitutional
Law authorizes the Foreign minister to make declarations, but the judge decided that the
domestic law didnt matter in that moment, it wasnt an excuse. Cant shift the burden of
parties in an International agreement.
Nuclear test cases involving Australia, New Zealand and France in the 1970s: France was
conducting nuclear tests, creating serious tensions between Australia and New Zealand.
France promised they would stop the expirements as early as next year, but this actually
didnt happen. Not talking about quid pro quo, but unilateral public declarations. They are
binding. But nothing was said about the lenght, the duration of the declarations.

Look at the contexts of both case studies: the declarations were made by the highest personalities of
the countries(Foreign Minister; President).
(Hilary Clinton proclamations during the debatates are not binding, other countries couldnt rely on
them as binding because shes not in office, so they are just promises to seek votes.)

Reservations: way sto modify/exclude states responsibility under IL. Transformation of approach of
IL from the First World War aftermath to the Second World War aftermath. After the IWW, League of
Nations approach: if a State made a reservation, it was changing the fundamental principles . This
was because treaties were mostly bilateral, and if one party made a reservation, it was actually
changing the terms of the agreement. Focus on the integrity of International agreements.
Pan-American approach of the UN era, aftermath of the IIWW: greater flexibility. Their focus was
inclusivity, partecipation of as more states as possible to treaties.
Reservation: unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or modify the
legal effects of certain provisions of the treaty in their application to that State. Article 2.
Accession states: states joining already existing treaties ( talking about European Union, central-
eastern european states). So, there is a difference between singing a treaty at the very beginning or
acceding to it. Often, countries have specific provisions on reservations: for instance, human rights
treaties have non-derogable provisions. Underogable rights: right to life; right to be free
fromtorture.. And none state can extent itself from the obligation of protect those rights. In case of
public emergency, even if these rights are suspended, they cant be derogate.

Treaties themselves provide specific limits to reservations. Art. 64 of the European Convention of
Human Rights provides a guideline for reservations: they cant be too general; they cant go against
the purpose and the object of the treaty.

Belios Case: explains the difference between a reservation and an interpretative declaration: the
former gets you out from the legal obligations; the latter just explains your understanding of that
obligation.
Switzerland had violated the Convention of Vienna, because first it used an interpretative
declaration, then it said it was a reservation.

You make a reservation when you ratify or acceed (not sure if this word evists eheh sorry) to a treaty.
Art. 102: states have the right to place the reservation when they submit the treaty to the UN. This
means that the reservation cant under-mine the object and the purpose of the treaty (art. 19 and
23), but states are not bounded to every single article of the treaty. You find the object and the
purpose of the treaty in the preambol and in the working negotiations papers see what was the
state position, what was made by the parties.

The idea of inclusivity developed because states are gradually over time modifying their domestic
laws so that they can actually remove their reservations.

Robert Burke: IL sovverts the domestic system.

PIL 24 OCT 2016


One of the issue we are talking about is the interaction between international law and domestic law.

It is important to critical assess the technical process through which the domestic legal framework in
the different countries and you really need before anything to know what domestic legal framework
requires.

A number of terms, very basic terms, about the role of the media and we have different contexts
depending on which country we are analysing and its domestic legal understanding (often journalists
and the press expresses under the definition of IL).

But at the beginning is important to talk about a major public event that discusses international legal
circles as much as international rights circles.

News last week in South Africa: ICC. For international layer and for international human rights lawyer
it was very relevant.

The South Africa is very much iconic in terms of the end of the apartheid era with Nelson Mandela,
providing a symbolic example of how a country can go from a period of systemic human rights
abuses to setting standards in IL helping theory of peaceful democracy (South Africa and Istanbul a
great deal).

Within IL generally the support to South Africa has given to the International human rights
system with the ICJ more specifically has really undermined by the fact that South Africa is
now the first country to pull out of the ICC- it means the sign of the Rome Statute and
obligations under the Rome Statute. If you look at article 20 getting back to this idea of how
individual treaties set the term for the reservation as the Vienna Convention on the law of the
Treaties underlines in the articles 10 and 18: It also creates an obligation to refrain, in good faith,
from acts that would defeat the object and the purpose of the treaty.
But indeed individual treaties as mentioned in the LAW OF THE SEA, dont allow negotiations at all.
Under article 120 no reservations are allowed to the Rome Statute. They have a number of
provisions (to allow the authorization, 7 years to set obligations under the treaty), but effectively
under the Rome Statute there is no room for reservation: or you accept the obligations or you dont.

So the first think everyone has thought when South Africa wanted to withdraw what are the terms of
withdraw: Some HR treaties dont have prevision for withdraw BUT Statute of Rome has these
previsions that are required in article 127. And more importantly they are bound by obligations to
respect to assisting the court, in investigations...

An important issue is in 2015: in African Union the president of Sudan Al- Bashir had problems with
the Rome Statute. Al- Bashir is wanted by ICC because of war crimes, crimes against humanity
genocide, referring to the facts of Darfur. Under customary IL, as law of diplomatic community, it
needed more details.

HOWEVER the Rome Statute, under article 27, provides specifies exceptions to the Darfur
community.

Is nothing about your position, your official function, that will give you protection in IL (NO RIGHT TO
IMMUNITY) to engage in acts that will make you responsible.

Also under the Rome Statute the States have no immunities and also under Rome Statute they make
very clear that the only detention by Home State Party and their officials is in Home Jurisdiction. SO
THERE IS A CONFLICT between an understanding or interpretation of immunities for States that are
parties to the Rome Statute and the commitments of the States parties.

So theres attention in IL and also a problems in terms of what is the situation within South Africa.

So Al Bashir has been wanted for a long time (an humiliation for the courts).

This has become a political issue. There are Implications of Treaty Obligations on State Party with
respect to Non-Signatory 3rd States (art.38)--->

1.In Kenya withdraw is a presidents instrument

2. In Burundi the people that are voting to withdraw are those who are implicated quite heavily in
potential crisis against humanity.

But South Africa therefore is really different.

South African governments regime, there is a risk to be broken by the course much greater than by
legitimacy of the international court.
Legitimacy really matters in IL, because if you dont have an enforced mechanism you rely on comply
with legitimacy but Legitimacy is a social structure.

The IL has seen the evolution of the ICJ, that signs the beginning for a New era for accountability and
transformation on how we look at the doctrine.

But when you hear about South African withdrawn the debate is actually about the domestic law.

And in the debates of course about international obligations but It is about international obligations
as they exist in the statute that implements the Rome Statute of ICC in domestic law. So effectively
you have international treaties that in South African dualist system has to be implemented and has to
be enacted through legislation.

So then- referring to Bashir- you have HR NGO (Amnesty International e.g.) that try to compel with
this case asking for an emergency arrest on the basis of the respect of the international treaties.

Then the case has gone to the Supreme Appeal Court of South Africa.

If this case has worked properly through the South Africa legal system government, this gives you the
idea of the complexity of how IL works

The executive branch in South African government pulled out the system entirely.

When you have really IL there is something in the domestic law that permit to translate the
obligations of the Rome Statute and, when the government is arguing, they simply have conflicting
obligations under the international diplomatic law but again it is implemented by the domestic
statute and also has obligations as a state under customary international law (non preceding 1998
when the Rome Statute was negotiated and was signed).

Which are the Implication of treaty obligations in the domestic law?

But When we have treaty obligations, they necessarily override customary international laws
obligation?

It depends also on domestic law.

Each legal system will give a different level of priority to treaty and custom in their own constitution.

EXAMPLES OF HOW INTERNATIONAL TREATIES ARE RATIFIED BY DOMESTIC LAW. -ITALY


According to the article 80 of the Italian constitution international treaties are ratified, it is important
to have the authorization by the parliament after the execution order. If the adaption is a special
procedure every single treaty needs to have its own execution order.

Finally the deposition of the ratifications determines the validity of a treaty.

-GERMANY

All general international public law is directly implemented. And in terms of the power of the
executive? Executive doesnt have enforce acts.

-SPAIN
It depends on the treaty, it depends on the nature of the nature.

So what you have is a mixed system in a way in which monist system kind like Americans where you
have some treaties and you describe no-executive treaties and executive treaties. Those that
basically can be adopted and implemented in IL but then you have another kind of legislation.

And then you have another kind of treaty that depends on the subject matter.

So you can have a pure monist system, you can have a mixed monist dualist system international
obligations interact with the international process.

IRELAND?

Dualist system look at art. 75 of the const.

You have to look also at referenda.

MONISM AND DUALISM


States usually have a dualist system, you sign int treaty that is incorporated in domestic law,
international law is an interpretation of the treaty.

When you look at the differences in the way a State interprets the Human Refugee Convention
(https://www.google.ie/search?q=international+refugee+convention&ie=utf-8&oe=utf-
8&client=firefox-b-ab&gws_rd=cr&ei=TWcPWNSvEIffgAbquL24Bg)

There is a huge space for interpretation country by country.

Divergences how do we consider the status of refugee?

You will always see how national legislation is adapted so you country just look at the core of the
definitions. Irish additional clarifications, so when you translate int law into domestic law int law is
interpreted. Youre seeing here in South African context a discussion about int obligations in relation
to customary an domestic act.

The case law is really looking at whether or not South Africa is complying its domestic law to int
obligations.

It is important to understand also the concept of RATIFICATION

When you sign THE ACT OF SIGNATURE It doesnt mean that you are bound. You are expressing
your willingness. Assad (in the case of nuclear weapons) signed but not ratification. It really depend
also on the nature of the treaty. when you look at Vienna Convention at the article 10 and 18
signature and ratifications are two different moments and acts.

RATIFICATION IS CONNECTED TO BE BOUNDs the key moment in int. Law. Before we were talking
about last week before application you have reservations.

The Ratification depends also on the domestic legal framework the consultation is required.

In this you are consenting to be bound to int. Law. for bilateral ratification is just this

Now for multilateral treaties is much more complex process you need depositary.
When you talk about a State that has to be bound to a convention you look at the treaty sources.
When the treaty enter in force, when it is ratified by states and when we dont have any rejection of
the reservations.

Putting into the depositary is the final step. From that moment the state is bound.

Countries have different process for sign and ratifications.

-Ireland for example

They dont ratify because they change every time. Disability right convention is an example.

Other states have to ratify and change as well.

SUM UP

Signature is important because it is for every state they can make reservations for example.

However signature doesnt have the same legal effects of ratification.

If you look at what the treaty is saying and youll see that there is a discord between the Statute and
South Africas case.

IRISH CONSTITUTION MORE SPECIFICALLY

There is distinction on the basis of costs: technical and administrative agreements.

Few observations

One point about monism and dualism

The THEORY is very important because it focuses on a case law approach, common law approach.

Looking at the practises of the states is necessary, it is very different cross jurisdiction.

General Framework

MONIST SYSTEM (SPAINISH CONTENT)

Some treaties are cooperated into the domestic law without any need of legislative. Executive has an
important power in terms of negotiating-> it is able to create law. Not a blinding idea of submission
to executive Disturbing democratic process because executive has this power.

US MONIST SYSTEM but it is different.

They divide treaties between SELF EXECUTIVE TRATY AND NO SELF EX TREATY.

The definition of monism and dualism depends also on scholars...quite general

DUALISM--> no treaties have a formal statute of law in the dualist legal system.

So you have the legislature and the statute to cooperate the int treaty into domestic law.
Very int treaties are complex to implement in domestic law. They may have previsions for jurisdiction
for example.

Its easy when you think about the case of south Africa there is clear boarder but sometimes no.

Therefore if you donthave a legislation but you have obligation of pre-existing custom but different
areas by state and state.

SLIDES: IRELAND, DENMARK (dualist system)

Statute have to make a difference between the difference about executives role.

Final points:

When you are talking about reservations you have to look at the primary text of the treaty; when
youre talking about terms ad condition too you always come back to it, the first step is treaty
which the implementing legislation has to incorporate in int law.

Public International Law, Mo 24. Oct, 4pm

International treaty law

When constitutional law is contest terms or provisions in an international treaty, the international
treaty will prevail. However there usually are in practice a number of safety measures that provides
some kind of check on having national constitutional jurisprudence high-jacked by international
treaties. What is important for you to be aware of, is what there is required within your own
jurisdiction in the first instance. In terms of what the significance is of international treaties. And that
also you are able to assess the degree of your states commitment to an international obligation
within a national legal order because in the end of the day thats what international treaties are
largely having the greatest impact: In implementing legislation and in the way that the court are
interpreting this obligations.

What I care about is that you actually understand the importance of how International law is in a
separate realm from domestic law and how it is really critical is the way that states translate their
international obligations into domestic legal framework. That brings us to talking about
reservations.

A reservation in international law is a caveat to a state's acceptance of a treaty.

flexibility, bringing in as many memberships as possible


defined in Article 2 (1)(d)of the 1969 Vienna Convention:
A unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or
modify the legal effects of certain provisions of the treaty in their application to that State.

Reservation v. Interpretative Declaratio


Belilos v. Switzerland (ECHR 1988) (Important Case! Read it!
http://hudoc.echr.coe.int/eng/#{%22fulltext%22:[%22belilos%22],
%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid
%22:[%22001-57434%22]} )
Mere Interpretative Declaration v. Qualified Interpretative Declaration

The Belilos case makes a distinction between an interpretive declaration and a reservation.
But also the impacted of the having madening (?) compatible reservation is what is very
important. And that is in Switzerland remains a party.

There is a very delicate balance international. The fear of Brexit, etc. and all its variations can really
have threaten the foundations of a treaty regime system. We are living in an area where regional
global governance and the treaties that established them (the international legal framework) is really
undergoing quite a transformation and many would say a backlash. And so treaty law is now
becoming much more important to a central to political debates. Because it is usually a gain ban than
allows for these threats to be realized.

(The human rights committee in its General Comment No. 24, HRC has interpreted the
consequences of a reservation.)

There are some interns of looking at the recommendations of international law commission which
came out in 2011. This approach particularly as a relates to human rights treaties as kind of entered
in to the mainstream.
The French, US and the UK (most states remain silent and had no objections to the doctrinal
approach that would be adopted in international law) opposed when the human rights committee
came out with their general comment 24 on reservation:
The French are argument about that the notion that a state makes a reservation and the reservation
is considered or deemed to be incompatible theyre still bound by the international treaty. From their
prospective a round counter to really essence of international law that doctrine of consent.

Why would that be? Why would the French government make an argument that compelling a state
to remain part of a treaty, let it made a reservation that one against its objects and purposes was
against international law?
There are areas where states actually are kind of conditioning their participation in a regime based
on the acceptance of this conditions. So that if you have a reservation, and one can think of many of
the Islamic states when we look at their reservations to the conventions on the elimination of the
discrimination against women. But theyre not gonna buy in to our western conception on what
these treaty obligations come with. And they are happy pro-contracting parties as long as we
interpret the court provisions in line with the doctrines and provisions of sharia law.
But if you tell them that they cant apply that reservation and then compel them to be part of the
treaty regime well then the notion of consent has been somewhat perverted. At least that would
been a logic when someone sees that is quite an orthodox argument under international law. But not
many where making it.
The Americans said that actually this idea, that you can take a states reservation deny them a right
to have that reservation respected and then compel them to remain in the treaty regime runs really
counter to the basic precepts of international law. So there were some objections to this approach to
severability.

In 2011 the international law commission come up with a sort of elegant compromise between the
desire to maintain the integrity of an international treaty regime and encouraging the universal
approach. What they say is that actually you create a rebuttable presumption vis-a-vis the state that
is making the unacceptable or the objective to reservation.
If it is communicated to them that their reservation runs counter to the object of purpose of the
treaty they are presumed for the reservation not to count. But they are presumed to be part of the
treaty regime unless they object. Basically silence is consent and it brings back then that
fundamental kind of tool of international law. And that is that states cannot bound by anything they
havent consented to.
So the ILC in their recommendations effectively try to balance the tension between maintaining the
integrity of a treaty regime and also trying to encourage states to participate.

What you notice is in what we looked at Art. 1 (27) this morning in the Rome statute: That was kind
of the exit plan for states. So that was a treaty negotiated in 1998.
But also a lot of treaties dont have exit plans on them. They dont mention how

Imagine multilateral treaties like a wheel. So when you think about reservations and how that effects
the relationships it effects relationship with each and every party.

When you make a reservation when you are signing that is merely communicating to the other state
parties that you intend to enter a part ratification, a modify commitment in relationship to certain
provisions. But the actual legal effect ratification of reservations only kick in when you get to the
point of ratification. Thats why there is a big distinction between states signing in terms of their legal
obligations and when theyre ratified because you dont know what the final commitment is until its
gone through the entire domestic process that made communicated internationally their consent to
be bound.

The key thing article 19 is the expression aims and objective of the treaty, aims and purposes. You
will see this language that is quite common. The advisory opinion is very important because
effectively there are couple of things that distinguish this opinion.

The next minutes she is talking more about reservations. But I just type down some pages of my
book. It is the same content but much clearer than she explain it ;-)
NUTSHELLS International Law, 2013 page 16,17

Reservations are only applicable in multilateral treaties. Reservations may be made unless
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation
in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.
- article 19 1969 Vienna Convetion.

Reservations must be in writing but a reservation, according to art. 20 (1), expressly authorized by a
treaty does not require any subsequent acceptance by the other Contracting States unless the treaty
so provides.

However, under art. 20 (2)


when it appears from the limited number of the negotiating States and the object and
purpose of a treaty that the application of a treaty in its entirety between all the parties is an
essential condition of the consent of each one to be bound by the treaty , a reservation
requires acceptance by all the parties.

Not only must a reservation be in writing but also an objection and/or acceptance of such
reservation and the reservation must be intimated to all contracting parties. The withdrawal of a
reservation or withdrawal of an objection to a reservation must also be expressed in writing, art.
23(4).
The effect of a reservation is to modify the reserving states relations with other state parties to the
extent of the reservation. Art.21 (1) (a) and (b) modifies those provisions to the same extent for that
other party in its relations with the reserving State. In art. 21(2) the reservation does not modify
the provisions of the treaty for the other parties to the treaty inter se.

Article 21(3) continues


when s State objecting to a reservation has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the reservation.

Art. 22 governs the withdrawal of reservations and provides, for instance that unless prohibited by
the treaty a reservation may be withdrawn at any time.

The Advisory Opinion on Reservations to the Convention on Genocide (1951) I.C.J. Rep. 15 highlights
a flexible approach to reservations. The ICJ gave this Advisory Opinion following a request from the
General Assembly on:

1. Whether a reserving State to the Genocide Convention could be regarded as a party to the
Convention if some, although not all parties to the Convention objected the reservation;
2. Given an affirmative answer, what relationship subsisted between the reserving and
objecting States as well as the relationship between the reserving State and non-objecting
States; and
3. What would be the legal effect of an objection from a signatory State i.e. a State, which
had not yet ratified or by a State entitled to sign or accede but which had not done so?

The ICJ in its Advisory Opinion and in its response introduced a more flexible approach to
reservations, stating, in respect of question one:

1. A States which has made and maintained a reservation which has been objected to by one
or more of the parties to the Convention but not by others, can be regarded as being a party
to the Convention if the reservation is compatible with the object and purpose of the
Convention; otherwise, that State cannot be regarded as being a party to the Convention.

In response to question two:

2. (a) if a party to the Convention objects to a reservation which it considers to be


incompatible with the object and purpose of the Convention, it can in fact consider that the
reserving State is not a party to the Convention;
(b) if, on the other hand, a party accepts the reservation as being compatible with the object
and purpose of the Convection, it can in fact consider that the reserving State is a party to
the Convention.

In response to question three, the ICJ stated:

3. (a) that an objection to a reservation made by a signatory State which has not yet ratified
the Convention can have the legal effect indicated in the reply to question one only upon
ratification. Until that moment it merely serves as a notice to the other State of the eventual
attitude of the signatory State;
(b) that an objection to a reservation made by a State which is entitled to sign or accede but
which has not yet done so, is without legal effect.
The emphasis is on compatibility with the object and purpose of the treaty which includes the
substantive text and the nature and spirit of the treaty. The ICJs Advisory Opinion is reflected in art.
19 of the 1969 Vienna Convention, which in addition to allowing compatible reservations allows
reservations provided there is no blanket prohibition, or the reservation is of a type specifically
excluded.
For an instance of a judicial consideration of object and purpose compatibility see the Restriction
to the Death Penalty case (1983) 23I.L.M. 320. In this case, the question before the Inter-American
Court of Human Rights was whether the reservation made by Guatemala to art. 4 of the American
Convention on Human Rights was permissible. Art. 4 guarantees the right to life and reservation by
Guatemala was to the effect it did not accept that guarantee prohibiting the use of death penalty for
common crimes relating to political offences which fell under this article. As to the compatibility of
such a reservation with the Conventions object and purpose the Inter-American Court of Human
Rights concluded the reservation in question was designed

to deny the right of life as such to that extent it can be considered, in principle, as not
being incompatible with the object and purpose of this Convention.
Public International Law 26.10

[?] brings together many of the conflicts that states have in terms of trying to adopt their political
policies agendas to the means to at least appear to be behaving in a way that is acceptable and legal
within the international community. And I wanted to raise some of the news items that we are
seeing in respect to recent events and highlight the extent to which in many ways they turn on
interpretations and applications of law related to sources. And I begin first with these [refugee]
recognition rates that I made reference to a few times.

Refugee Recognition Rates (2009)

The 27 EU states, Switzerland and Norway have moved closer, but there are still examples of
vastly different recognition rates across the continent.
For example, when we look at the recognition rates (convention status only) in 2009,
applicants from Afghanistan face 30% positive decisions in Austria but only 3% in the
Netherlands.
Serbs have less than 2% chance in most countries, but a 10% chance in Belgium.
The recognition rate for Eritreans ranges from a whopping 78% in Germany to less than 5% in
the Netherlands and Malta.
For Iraqis the rate is 79% in France but 8% in Great Britain;
For Russians it is above 20% in Denmark, Austria and Belgium but less than 5% in Poland,
Sweden and Norway;
For Turks 38% in Switzerland, but zero in Finland, Hungary and Sweden.

It is just more to clarify them and that is that I have highlighted that they have one article and one
treaty that is interpreted so radical differently across different jurisdictions and so the question that
I would like to pose to you is: why is that?

One reason might be how the article or treaty is translated meaning how international treaties are
translated in domestic law. It also may be an issue in whether the domestic law in the process of
incorporation (that we have been talking about depending upon how international treaties enter into
national legal systems) are discussions of monism and dualism. It might be in fact be the result of a
different piece of legislation and a different definition in the legislation that is often the case. I made
the example of how in Ireland refugee protection is available for those who suffer on account of
persecution based on sexual orientation. That aspect is not in the 1950 convention it wasnt even on
the mind of states when they were negotiating that treaty in 1951. So very often what is
incorporated [in domestic law] mirrors sometimes exactly the content of the Article etc. but often
there are several differences. E.g. the debates that you have for instance within relationships to the
interrogation techniques e.g in Guantanamo detention facilities with individual who have been
languishing there for very long periods of time. The big debate that we are circulating around the
torture memos. Where you have the US administration attempting to access the legality of certain
kind of interrogation techniques e.g waterboarding with the international prohibition the division
against torture. But when we are measuring that compliance against domestic legislation the
implementation of the convention against torture which is a universal treaty that as it has been
translated into domestic statues and the domestic statues again where similar but not really in terms
of the definition of what constituted torture under international law. And as a result, you then have
lawyers within the administration taking that statue and further interpreting it and in their case
interpreting it quite liberally so that an almost carte blanche could be applied to those individuals
in the front line engaged in interrogation. You can see that you have to really look at this really
complex process by which international treaties enter into domestic law. I came up with a number of
examples how one could explain these kinds of discrepancies. Is there any other way in which you
can have the same law or a similar law applied so differently? What else might be at stake here?
Weve talked about treaty law, about domestic law, the definition. What aside from law has to been
evaluated? If you are looking at how for instance Serbs are assessed in terms on whether the
situation in Serbia gives rise to a context where they can creditably present an application of a well-
founded fear of persecution. What are you assessing? The law in that case? What else are you
looking at? The facts! Applying international treaties, you have to remember is about taking the law
as it is stated. But it is also about how courts assess and apply that law to the facts. In terms of what
the facts are on the ground in Serbia. The way in which it is reported and which information the
court has before it may also vary. It is important that you have a context for thinking how IL and
international treaties are applied and translated on the domestic front. And the last point a rather
cynical one: what other aspect. What else might affect the way decisions are made? Is migration a
neutral issue? No. There are its very difficult to look at how these international obligations are
translated in a domestic context in an area that is highly political, highly sensible involved and
many of the problems that we are dealing with in IL are dealt with in international treaties precisely
because there are difficult. Its precisely because national jurisdiction is either so overwhelmed and
challenged by the problem that they are actually looking for transnational solutions. There are many
reasons for why IL can be interpreted so differently but it also highlights why its very important that
we have a methodology to interpreting international treaty provisions. Now again if you want to
think back for a moment to our earlier discussions when we talked about Bashir and the withdraw of
the ICC from the international criminal court. Amongst lawyers the discussion is a highly technical
one and it is about how sources of law interact with each other in spite the fact that he (Bashir) is
wanted with an arrest warrant for allegedly being responsible for the crime of all crimes genocide
the SA government even though it was (in the past tense) a member of the assembly of state parties
argued that it was a conflict in duties between their obligations under the Rome Statue for the
international criminal court and the longstanding obligations of customary international law and
treaty law with respect to diplomatic privileges and immunities. There is a clash. So again, this is a
big issue were right now we are seeing the potential crumbling of criminal justice, as after SA
withdraws we now have Gambia, Borundi. So, you are now beginning to see the African resentment
of global governments more broadly. But what it is really coming down to in the logistics of how this
was orchestrated and what triggered it was indeed an interpretation of international obligations
under treaty laws and customary international law. And ultimately when we are talking about
international law what is just as much at stake is a political context which rises to the situation. You
always have to step back and look at what is really going on. Because Ross Higgins a former judge for
the United Kingdom of the international court of justice described I think extremely well within the
context of politics in the security council is that you are talking about the political operation within
the frame of law you are not talking about law directing the political choices. The way that
governments and executive branches operate is that they see and make their strategic and political
choices and they try to do so within the parameters of what is lawful. Rather than looking at what
we should do next lets look at the law and it will guide us. The reality is that IL if it keeps really
political determinations and strategizing within this frame of the lawful well then it succeeds but it is
quite nave to actually overestimate the extent to which law is guiding and enlightening the types of
decisions that states and indeed the individuals that work for the government are making. The last
example that I want to bring is the free trade agreement between Canada and the European Union
that was negotiated but failed in the end even though Canada and the EU have very similar values.
They tried to issue or draft and then to add an interpretive declaration to the treaty. They called it a
joined interpretive declaration but it wasnt enough for the Belgium to sign the treaty. And Green
Peace said that an interpretive declaration has as much worth as travel brochure. You should really
actually think about this. The interpretive declaration (ID) was an attempt to make a last-minute deal.
But this ID is something that should excite you perhaps (perhaps not) but nonetheless why is it an ID
and not a reservation? What I the difference between a reservation and an ID? What is the legal
impact of a reservation? A reservation is changing the agreement; legal obligations are either
modified or removed. Where else an ID is clarifying your understanding of an agreement but it
doesnt change the legal requirements. But what does a joined declaration mean in terms of if you
have a reservation or if you make instead a reservation what would that mean in terms of the treaty
negotiations (talking about negotiations between the EU and Canada). What does that mean if
someone puts a reservation in? Its not like a big multilateral treaty where you just deposit and
someone objects or doesnt. Its bilateral even though the EU is a mass of all its 28 states affectively
the negotiations are bilateral. If someone puts in a reservation it means that you are opening up
negotiations all over again. Bilateral treaties will have an ID because reservations just mean you are
changing the provisions because there are really just two parties involved. Treaty law becomes even
more complex in the context of the EU because if you think about to the relationship of each state
legally and your domestic jurisdiction and then youve got the EU as an entity negotiating with
external parties.

What I like to just do now is to talk a little bit about the methodology of how we interpret treaties
because as you can see a lot hangs on the approach of when they are confronted with disputes over
the content of treaty provision. And what is important too I think is that you realize that Art. 21 in
the methodology of treaty interpretation has become more and more important now that we have
this explosion in international treaties and over two dozen different tribunals and one of the key
features of the international legal system that has really wreaked havoc and caused concern both
besides statesmen and outside observers is that you are ending up with this feature of
fragmentation in international law. And this is the result of different disputes effectively dealing
with the same areas/like areas of law but going to different international courts and coming up
with different interpretations of law. E.g response of the international criminal law to the former
Yugoslavia determining that indeed there was genocide in the Balkans and when the case goes
before the ICJ when it deals with state responsibility they back off. But there is a difference in terms
of these two courts because the ICJ deals with states whereas the criminal tribunal deals with
individual responsibility they are looking at different sets of issues. But nonetheless youll find that
there is a feature in IL that you have different tribunals that are coming up with different
interpretations that are often contesting in like areas of law and that is a real problem. You see it
usually discussed under the rubric of fragmentation in international law. And thats why
interpretation becomes so important under the Vienna Convention. When we are looking into
domestic contracts and statues the law tends to be much more detailed. In International treaties
because of the nature of international negotiations the law is far less precise. And one of the
negotiating tactic that you will see and suffer from when you read and deal with international
treaties is that one of the features of treaties (that are the result of treaty negotiations) is that there
is a kind of tool amongst diplomats and lawyers that relies upon constructive ambiguity as it means
that it reaches consensus. And constructive ambiguity is precisely what it says it is: sometimes it is
better to through in ambiguous language in an international treaty convention where everybody
thinks they won. If there is ambiguity over the definition of a given term the hope is that through
state practice you end up arriving in a consensus. Constructive ambiguity being used quite
frequently by the security council (SC). The ICJ in the legal consequences case of South Africa and
Namibia from 1971 already back then was looking at an instant indeed of constructive ambiguity
when it was trying to interpret the SC resolution. A lot of SC resolutions that you read are going to be
particularly unclear and the reason for that is that the SC is a political, legal institution. In the 1971
legal consequences advisory opinion they were looking at the SC resolutions and as you know when
you are looking at Security Council resolutions and GA resolutions beyond looking at the text what is
the first thing you want to look at? a) when it was written b) is it binding) c) the votes how the
votes fell. And for the SC resolution to be adopted and to be binding under Art. 27 of the UN Charter
you have to have the five conquering votes. That doesnt mean that everyone has to vote for it, they
can abstain. But you want to look at the abstentions. In 1971 SC wasnt active (yet) because there
was the cold war. But now when we talk about the post Berlin fall world when you are e.g. looking
for support for the conflict in Libya 2011. Intervention (in Libya) is only legal under IL if the SC offers
its authorization. Therefore, the only what that you could have intervention in Libya was to have the
SC authorization. You have a resolution passed (the resolution of 1973 which we are going to look
more detail at later on in this class). The resolution is passed with only three votes from the
permanent members of the security council. The states that didnt vote for the intervention of Libya
were China and Russia. ICJ is looking at state practice where they can already identify their
interpretation of IL was being formed by what the SC was already doing. And that is what brings us to
looking at three schools of interpretation that if we focus first go to the text of Art. 31 of the Vienna
convention of law treaties and this Article is consider to be establishes customary law.

Article 31 VCLT

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with
the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an instrument related to the
treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions; (b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of
international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

You see in the very beginning that youve got the good faith principle and it adds an ordinary
meaning. However, the language: shall is obligatory. Shall is demanding. Suggestive or providing
discretion is the language of may.

And then they give examples of the different ways that one can look at the context of the purpose of
interpretation of a treaty.

Three schools of interpretation

The first school that is applied by courts focuses on the intention of the founding fathers, the
intentions of the parties and again this is the ordinary meaning of the text. It is looking indeed at
context in order to determine the intentions and it can look at a range of instruments both those that
were part and parcel of the negotiation process. Looking at the negotiation statements and very
often you will also find there might be explanatory notes. Interpretive Declarations generally are not
considered to provide a clear explanation of the parties. Even though you mind think so because ID
are to clarify statements that are made in the negotiating process and the intend of parties. Why are
ID not used? Because they dont present the view of all the parties. They are just about one party. So,
what is important here is about the collective intent. One has to look of the nature and the
instrument or the document attached (to a treaty?). Very often you will see that there are addenda
to international treaties and thats why you have to look at the primary source as lawyers.

Second approach is textual: looking at the ordinary meaning of the words. That also means that you
have to look at the language. As the Vienna Convention indicates if a treaty is in multiple languages
the equal weight is given to each language which increases incredible headache if you have mistakes
in interpretation or confusion over interpretation. But nonetheless textual approach is very straight
forward approach.

And the last is the theological approach which is the most controversial. You take an international
treaty and interpret it under the light of its object and purpose. The idea is as Strasbourg judges
have declared for the treaty to be a quote: living instrument. In international treaty law this is
important because as I mentioned before if you open up treaties for renegotiation in order to make
them adapted to contemporary challenges. If you have an old legal instrument as the European
convention from the 1950s or the UN charter from the 1940s the theological approach allows to
look at the intention and values of the drafters and apply them in a way that still falls within the
acceptable parameter of not departing from what the states consented to and a broader kind of
way. But there are other ways in terms of working with old instruments. Often what you will see is
protocols attached to international treaties. But attitudes e.g towards the death penalty are changing
(not prohibited under the European convention on Human rights). In light of the fact that so many
states have indeed prohibited the death penalty or eliminated it from there national criminal codes
that one could consider Art. 2 in the European convention (right to life).

ARTICLE 2

Right to life
1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results
from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection
State practice has changed so much that as a result as part of states commitment to the protocol
that we consider Art. 2 to be actually amended. States practice has involved so significantly that we
can consider indirectly that a court provision the right to life has actually be amended without any
former legal process having been undertaken. Many of the areas of international law particularly
looking at the sources of law but also in the area of use of force is indeed heavily influenced by
Human rights law because HR Law is the most subversive one of IL but its also where you have
more committees and you have an awful lot of treaties that gives the opportunity to change the law
progressively and develop it. Ideological and advocacy oriented individuals who are serving in those
capacities and it is for better or for wore affecting the way in which they see their role. If you look at
the ICJ they tend to be quite sovereignty oriented much more conservative in the way that they
interpret and apply international law. IL has been developing in different ways in different subject
areas. Depending on which approach you apply you come up with different outcomes. Problem with
the theological approach is that judges might push the envelope too far resulting in states pulling
out of the system.

Context and practice

When you are looking at the context of treaty interpretation look for explanatory notes, joined
interpretative declarations, what the intent was of all of the parties, state practice (generally there
arent agreements for state practice attached to the negotiating process). Discussion over state
practice e.g the dispute between Greece and Macedonia over the name Macedonia. Greece has
entered into a treaty with Macedonia saying it wont object to Macedonia which formally was part of
the former Yugoslavia to joining international organizations as long it is the former Republic of
Macedonia: but as Macedonia wants to join NATO Greece objects and they go to the ICJ. But the
important point that has been noted by the ICJ in the relationship to the agreement was the fact that
Macedonia has joined all these other international organizations and Greece hasnt objected.
Importance of interpreting a treaty and state conduct often falls under objections made on the
record. When reading International law, you always have to think what is the approach if the judges
and the states towards sovereignty because that is really the one theme (if there is one that links all
of these different subject areas together). International law in the end of the day is about states,
the approach of states and their sovereignty may be stronger or weaker at times. But in the end of
the day the (inter)national law is made by and for states.

pil 3 november 2016


Legal personality, statehood and recognition

The concept of statehood reflects the interaction between int. law and politics.
Today we got more than 190 states
Recognition is very political
After the fall of the berlin wall. The former republics of Ussr and Yugoslavia had just reclaimed their
past sovereignty

Is ISIS a state?

Yes. It has control over a certain territory, provides services to a given, stable population. It has
borders wich divide itself from foreign force. Monopoly of force. It interacts in some way with ther
staes to finance itself.

No. they will never be recognized or join the UN, because it is not peace loving andhas the aim of
overthrown the international status quo. There is no rule of law. Its population is kept against its will.

Legal personality is needed to act in the international community (1970 declaration). It gives rights
and duties (Like joining the UNHCR) to the subjects of IL.
Treaty making capacity
Capacity to make internationl claims
Enjoy some or all privilieges and immunities from national jurisdiction
You need 2/3 of the assembly votes and the approval of the security council. This is a pure political
process. Often small states like Palestine join son sectorial organization of UN, like UNESCO, in order
to gain worldwide recognition.

There are degrees of personality . States, int. organization and individuals.

Int. org. are created by states but they own a proper legal personality
Stats own the same legal personality of other states

Statehood (Montevideo convention)


State have original legal personality when they meet criteria, including new criteria developed after
1970 declaration, like self and racial equality (Rhodesia case). These criteria are part of the
customary international law. If a state fulfill all these criteria, it gains statehood no matter if
recognized by the international community or not.
Permanent population (not nomadic, like Western Sahara)
Defined territory. Like population, there is no fixed minimum to fulfil
Government. A failed state is defined as a political central authority which has no control
allover its territory
Capacity to relate with other states. The state has to ben independent from other sovereignty,

Self-determination.
Principles brought into IL by president W.Wilson after WWI. It was not a tool to brake off states, but
to guarantee the independence of those nation under foreign sovereignty (colonial empires). After
WWII this principle was embodied in the UN charter as the right of the nation to freely determine
their own political status.
Importance of maintain the integrity of the states, although the whole community would be in an
unrest. Thats why African states borders are like those of the former colonial empires. It was a
compromise to maintain order in the international community, because you can claim your borders
as a state, but you cant
A new state can:
Emerge as an independent state
Associate or integrate with another independent state (Crimea and Russia, no violation of IL as it was
just returning to its fatherland).
In the IL there is no right of secession, neither a state can claim its sovereignty over its national
minority groups outside its boundaries.

Derived personality comes

Public International Law, Mo 14 November 2016 (11 am)

The first 10 minutes she just spoke about the US election and Brexit
Is there provision to leave multilateral treaties? (Not in every case and if so, it takes time)
There was always a pull forward and backward in history. But this is a very interesting time. So we
will see in the future
Entities in possession of international personality are accordingly subjects of international law. As
such they owe responsibilities to the international community and enjoy rights, the benefits of which
may be claimed and which, if denied, may be enforced to the extent recognised by the international
legal system.

States are the primary and original subjects of international law and all states possess full
international legal personality. That is, every state possesses the totality of rights and duties under
international law and international personality is an inherent attribute of statehood. The personality
of states is original whereas that of other entities is derivative, that is, they only have personality as
granted to them by sovereign states.

The requirements of a statehood set out in art. 1 of the Montevideo Convention on the Rights and
Duties of States 1933 are:
a permanent population
a defined territory
a government
the ability to enter into relations with other states

Recognition of States/Governments

Recognition as a state is the formal acknowledgement by an existing state that the recognised entity
possesses the relevant criteria of statehood.

The discretionary function exercised unilaterally by the government of a State officially


acknowledging the existence of another state, government or belligerent community and
expressing readiness to accept legal consequences of such acknowledgment.

There are two leading schools of thought, namely the constitutive and the declaratory/evidentiary.
Constitutive Theory Declaratory Theory
It is the act of recognition by other states that an acceptance by states of an already existing
creates a new state (or other international legal factual situation.
person) and endows it with legal personality.
new state acquires capacity in international law
a state, or government, does not exist for the if it fulfills the four essential elements of
purposes of international law until it is statehood --and not by virtue of the consent of
other states.
recognised.
existence of a state or government is a question
of pure fact, and recognition is merely
acknowledgment of the facts.

As a rule an entity will be recognised as a state once. It is not the norm for recognition, once
afforded, to be withdrawn. As long as the criteria of statehood continue to be fulfilled, the state will
subsist. If the criteria do not persist, and the state no longer exists, de-recognition is not required.
In contrast, recognition of a governmental regime is independent from recognition of a state.
Recognition may be withheld from a regime without affecting the existence of the relevant state. This
issue of recognition is important when the regime has assumed power by unconstitutional means,
e.g. a coup dtat.
Effects of recognition
The legal effect of recognition is that an entity is recognised as a state. Recognition of an entity as a
state affords it the full totality of rights and duties inherent in statehood. These include sovereignty
(e.g. territorial, jurisdictional); the duties to respect the rights of other states to refrain from the use
of force save in defined circumstances; and the responsibility for acts carried out on its behalf.
There is no period of grace for new states. Therefore when an entity becomes a state it immediately
assumes all the attributes of statehood and cannot plead its youthfulness for non-fulfilment of its
international obligations.

Non-Recognition in International Law


Non-recognition can be a tool of foreign policy denoting approval or disapproval of an entity or its
government (ie Syria)
Non-recognition as a state by other states does not imply that a regime does not take from the state
its rights and obligations under international law.

She spokes also about the Kosovo War


The Kosovo War was an armed conflict in Kosovo that lasted from 28 February 1998 until 11 June
1999. It was fought by the forces of the Federal Republic of Yugoslavia (by this time, consisting of the
Republics of Montenegro and Serbia), which controlled Kosovo before the war, and the Kosovo
Albanian rebel group known as the Kosovo Liberation Army (KLA), with air support from the North
Atlantic Treaty Organisation (NATO) from 24 March 1999, and ground support from the Albanian
army.

Security Council Resolution 1244 (June 10, 1999)


Reaffirming the commitment of all Member States to the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia and the other States of the region ....
(Preamble)
United Nations secretary-general is authorized to establish an international civil presence in
Kosovo in order to provide an interim administration for Kosovo under which the people of
Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia; (para. 10)
an agreed number of Serb military and police personnel are allowed to return to Kosovo to
perform their functions. (para. 4)

PIL 14.11 lesson 2


Recognition

Recognition is very much a tool being used by the emerging policy in the European Union/European
Community in order to try and facilitate the process of peace. International law being used as a tool
to play by certain rules. In this class, we are going to look at the criteria for recognition. Which is very
clearly a political process translated in the language of international law. Recognition was and still is
used as a tool of diplomacy. What is important when you read the advisory opinion on whether
Kosovo could declare itself independent that within the context that the conflict was emerging in the
Balkans. The former Yugoslavia is split in 6 parts today: Slovenia, Croatia, Bosnia and Herzegovina,
Serbia, Montenegro, and Macedonia.

When you look at the map you can see that the real challenge of the advisory opinion was how you
fit the declaration of independence by Kosovo within the international legal framework which core
goal is the protection of sovereignty and territorial integrity.

So, you can see the tension between the security council resolution 1244. Distinction in the approach
of Europe in recognizing the 6 states that sort of broke out of the former Yugoslavia and the Baltic
states. So you have the Baltic States if you recall and at the same time you have Gorbachev and the
collapse of the former Soviet Union. But the difference between the two scenarios is indeed quite a
striking one. You have the EC guidelines set out for the recognition of new states.

Transforms the Law of Recognition


Refers to the Principle of Self-Determination
recognize new states 'subject to the normal standards of international practice and the
political realities in each case
candidates for recognition as those new states which 'have constituted themselves on a
democratic basis, have accepted the appropriate international obligations and have
committed themselves in good faith to a peaceful process and to negotiations'.
EC countries 'will not recognize entities which are the result of aggression' and, , that 'they
would take account of the effects of recognition on neighbouring states.'

What is important about the Baltic states is that they effectively were simply reclaiming the
sovereignty that was taken away from them during an earlier era. They were restating the
sovereignty of the Baltic state which is a relatively clean process. It didnt involve the same kind of
political issues that were at stake in terms of recognizing various states in former Yugoslavia. But still
the EC member states delayed in their recognition of the Baltic ministers until there was a
declaration that came forward from the council of the former Soviet Union that acknowledged the
process of this integration. The Baltic states was much tidier and very distinct process compared to
what was going on in the Balkans. The EC guidelines recognizes that new states are subject to the
normal standards of international practice and political reality. The candidates for recognition of new
states that have constituted themselves on democratic basis have to accept the appropriate
international obligations and have to commit themselves in good faith to a peaceful process and
negotiation. So you take these guidelines and compare them to the Montevideo convention and you
can really see that it is like night and day. That here they are looking at the political context of each
case they are looking at the impact the recognition would have on neighbor states. Here critique is in
order since it shouldnt be a criterion how the statehood of the state effects other states. Really
different framework from what we were looking at in the classic approach of recognition e.g the
Montevideo Convention. Badinter Commission which was set up as an advisory commission that
doesnt have binding powers, it was meant to advise. The commission was composed of national
judges, lawyer etc. which had to resolve this issues of international law even though their expertise is
on domestic, constitutional jurisprudence. First opinion of the Badinter Commission whether they
are states or not is a matter of fact. Meaning that the declaratory theory is applied. The real problem
in the Balkans was that Serbia said that the former Yugoslavia hadnt dissolved in fact they wanted to
be a greater Serbia. If one becomes a state and you fight against or are breaking of off your
Corestate has does being an independent, recognized state changes the nature of the conflict you are
involved with in the context of the use of violence? Why would Bosnia want to be a state if they are
actually fighting Serbia when they are supposed to be the same country. The reason is that the war
would shift from an alleged civil war to the legitimate use of force in exercise of self-defense and they
can request international assistance. They (Bosnia) then become an actor on the international stage.
If you see what the requirements of the advisory commission were (again look at opinion 2) indicates
that recognition is declaratory. They also highlight the very important principle of you cant change
the boundaries. But within the process of recognition its not about what states would like their
boundaries to be but it is about predetermined ones.

The final act of Helsinki in 1970 is considered by many to be the first really significant human rights
advance in the post-world war II era. It guarantees for the rights of ethnic and national groups and
minorities in accordance with the commitments subscribed to in the framework of the CSCE.
Because HR provision before that era didnt really have any force. Today in Human right to be
recognized as a state by the muster it is required to pass the rule of law democratic requirements.
But there are an awful lot of states that would past the Badinter criteria even now. But it is to point
out that maybe 50 % of the Human right council probably wouldnt pass the muster (with this very
basic criterias) either.

The minority right was very important in the Balkan context. If you look at international treaties
globally at minority rights were important in the Versailles treaty but if you enter the era of the Un
Charter minority right were almost forgotten. Those rights were not important in the United Nations
and not mentioned in the UN-Charter because the states are afraid that minority rights could evolve
in the wrong direction. Meaning that if such rights are demanded the States had to maybe change
their own behavior towards the right of minority or might be even obligated to offer Human rights
for minorities.

We should keep in mind that Recognition is used as an international tool to resolve conflicts maybe
even end blood shed during civil wars etc.

Advisory opinion nr. 5: They didnt find that Croatia had been sufficient in the evidence provided that
they fit all the criteria and needed to reapply.
The EC that created the criteria also considered the political reality in each case. Which brings it
towards this fine line between law and policy. Kind of a twilight zone that we constantly struggle with
in International law.

Now, I am going to say a few words about new States. One thing is important and that is to see really
the difference in terminology. A states succession is when one states replaces or takes over another.
You can have decolonization. Or dissolution by agreement (e.g. Czechoslovakia, Soviet Union). You
can have mergers or Absorption (two states coming together eg. the former Germany and Eastern
Germany). You should be able to identify the nature of the origin. The way states come into being
will have different reactions in the international community. What states do and say towards the
recognition of a new state reflects their attitude and openness towards the process of recognition.

In 1999 the Security council is really using the language of the UN charter and the importance of
sovereignty and territorial integrity. So, when you are talking about States breaking the law or about
the illegality of intervention, whenever you are making an argument use that phrase. Because that
phrase is code speaking in international law.

As a source of law one point I would like to make here is that the security council even though it is ae
supreme political legal institution is not a Court. Its business is not interpreting international law but
compromising. So, if you think about security council resolutions that they are binding (see Art. 25 of
the Un-Charter) but they dont have the same standing as judgements coming out of the ICJ.

Two types of quotes (which I have used before in exam)

The legal theorist Kelsen considered recognition to be a subject of great complexity because it is an
amalgam of political and legal elements in a degree which is unusual even for international law.
Please discuss.

The EC criteria for the recognition of new states has transformed recognition from a process
directed by international law to an instrument motivated by foreign policy.

Do you agree or disagree?

Jurisdiction

When you talk about Jurisdiction you are talking about International law that provides principles but
ultimately we are talking at least for the most part the jurisdiction is between states and the question
of whose law applies (refugees, piracy, sexual exploitation) as states dont like to be responsible and
if they act: when are they to far reaching? The US government put sanctions on European companies
for doing business with Cuba. Is that overreaching? How far can exterritorial jurisdiction reach?
Pil 21 november

IMMUNITIES
Before we talk a bit more about jurisdiction, because obviously immunities and jurisdiction
are closely related.
States can prescribe their own jurisdiction and legislation, but they cant go
inside another state and prescribe jurisdiction. The real problem is enforcement
prescribe jurisdiction requires enforcement.
More largely talked about criminal jurisdiction and today (in the afternoon) diplomatic
immunities.
We are talking about the fragmentation of International law is because you have
International law implemented by domestic one, not only because you have different courts.
Domestic jurisdiction can interpret issues.
5 principle of criminal jurisdiction (slide)
principle of universality ,persecuting states for crimes committed in other
jurisdiction. But this principle has suffered of retraction because the political
costs beared to allow this is too high.
How has the executive changed the legislation? Allowing this issue of prosecution to become
stronger.
In the reading you can see what it has changed in the jurisdiction.
3. in the protective principle and the passive personality jurisdiction (slide)
when you have, e.g. the Hostage Teheran Case, terrorist attack US did not know
if the victims were americans. When you have Chrushev There was effectively
an exercise of passive personality.
Germany criminal court controversial with the Turkey jurisdiction.
Which was the result,the outcome? The accuses dropped for lack of evidences.
You have an antiquated law which allow foreign states to go for german court.
Jurisdictionally you have exercise of jurisdiction, when you look at these cases
1. What is the crime, the accuse? Who is the perprepeted?
2. Taking off these different kind of contents
Jurisdiction really FRAGMENTED because it ealy depends on domestic jurisdiction.
You have the concept of Universal jurisdiction (look at the slide with the crimes of universal
jurisdiction).
With respect talking about war crime you talk about some conventions the provisions you
are talking are special provisions than genevas convention in 1949. These principles allow
for universal jurisdiction.Those categories of crimes categories individual responsibility.
War crimes because involve the individual responsibility. The war statute for the former
yugoslavia and rwanda. These principles are about international jurisdiction and about
states obligations. You also have international jurisdiction when you have treaties
Treaties can create specific obligations to prosecute, extradition--> Pinochet case
You can prosecute, if it is binding among the two parties. The obligation to prosecute or to
extradite is the only bound by the international treaty convention. This is the universal
jurisdiction, the only mentioned by the former president of ICJ.
These are crimes (mentioned in the slide) of UNIVERSAL JURISDICTION affairs of
international jurisdiction are resolved by intenational treaties and conventions.
Piracy is the crime of universal jurisdiction, as a result of international treaty convention.
Genocide you have international convention from 1948.--> it is very hard to prove
Crime against humanity--> it is part of the statute of international criminal
courtthere is no treaty Crimes Against humanity.
War crimes required to be an international army conflict.
Crimes against humanity: No obligations, it can be applied internally as well as esternally.
Crime against humanity are quite detailed, even in Romes statute-->you can apply it, for
example in a Nigerias case: a girl forced of marriage

UNCLOSS ART.111 HOT PURSUIT


This issue of pursuit is important in term of jurisdiction (read the
slide)
So different kind of situations than the Hickman case. (see Hickman case--
>https://en.wikipedia.org/wiki/Hickman_v._Taylor)
So there are different ways in which International treaties DEAL WITH
JURISDICTION.

Immunities from Jurisdiction


One comment in terms of Int treaties:
The Hickman case was adopted in 1960s, one of the issue of the hickman case
was the actual intelligent capacity. (look at the link above for the entire case in
wikipedia)
You have a violation of territorial sovereignty, but the complex thing is that
immunities related to jurisdiction become more complex.
When we study immunities we have to look at the extent of the immunities when
technologies changes-> the issues change, the principles are challenged You
have to think about contemporary issues, obviously is useful to look back to the
past but always taking in account it from 1960s

Diplomatic area issues became very important in international law.


i) DIPLOMATIC IMMUNITIES exercised by ICC
ii) Diplomatic communities are important
iii) IMMUNITIES OF INT ORGANIZATION, in terms of sovereingty and state
immunity is really limited the reason why I talk about it is the fact that the
framework is necessary to understand the diplomatic community (do not end up
with the cases)--> highly relevant to understand the logic of diplomatic community
When we talk about immunities we are Going back to obvious areas of IL-->slide
In IL we have the Vienna Convention of Diplomatic relations: it takes a lot of what
is generally customary international law, but the approach to IL has changed
until now different theories related to diplomatic communties:

TWO THEORIES OF DIPLOMATIC IMMUNITIES


i) Personal representation: where there is an embodiment by the
representant, like ambassador embodies the queen actually, he is an
EMBESSY as a result of this, they enjoy their immunIties. How the
diplomatic community make difference between the diplomatic and the
queen herself? We have different categories of diplomatic stuff in the
Vienna Convention, why? Ou have different levels based on their role
this is actually the second theory
ii) Functional necessity of conduct business (see Iran hostage case, VCID). What is
required in terms of protection? Here there is a tension between the necessary
protection and why do we need that, why do is it required, especially if you
look at the quantity of abuses? We come back to the principles especially
to the sovereignty.
Much more reflective of diplomatic commission. The real fear is that all the diplomatic
representants will be subject, for political reason, to the desire of protection
How do state balance their desire of this process and protecting their nationals?
To taking in consideration the very unique features of the international framework, where we
do have all the states, in theory, equals.
Very clear differentiation of the different types of immunities, it is important to make a
clarification system.
The idea which is Looking t the particular function role of the communities with some
cathegories.
What you also see with Vienna convention on diplomatic relations.
-diplomats
-council officials
-international organizations there is also a convention
They look at the particular role it is required within these categories they have
The problem that you have with diplomatic immunities in reality tacklling with
this provisions of new technologies, new challenges.
If you look at the Vienna convention (in the slide)--> look at the technical aspects.
-Sovereignty equality, promotion of international peace and security, The
promotion of friendly relations between states THESE PRINCIPLES ARE THE
JUSTIFICATION OF THE INTERNATIONAL IMMUNITIES
In the language of IL IN INTERNATIONAL PRINCIPLES.
For diplomatic immunities it replies with individual, The principles do not beneficial to
individuals....but.... (look slide)
in the jurisdiction in which they are the domestic court Obama arguing that
immunity is PROCEDURAL.NOT ABSOLUTE, because if it so no justice for victims.
They affirm the rules of customary IL. For diplomatic communities what is also important?
Diplomatic immunity in terms of protection from crime.
ABSOLUTE IMMUNITY: IF COUNTRIES ENJOY ABSOLUTE IMMUNITY THERE IS NO
ABSOLUTE JUSTICE FOR THE VICTIMS
THE EXTENT TO ALL DIPLOMATS? E.G.: France gov to a diplomate abusing child
-The CONSULAR OFFICIALS we have MORE LIMITED IMMUNITY, there is a corresponding
duty to respect international laws and not intervene inside the state.
i. Most of the history of diplomacy, especially in cold war, corresponding duty to
respect national laws.
Ii. During the Iranian revolution we talk about responsibility, the ICJ.
Responsibility belonging to a state.

The question is: how the states bind these principles in a way in which provide
immunities and security for their own nation?

P.S.: Take a look in the book, it is important in terms of global politics.


he law obligation under international law has a significant impact. It may not be shaping norms but it
if it is not shaping norms the way in which states respond to with its actions are also quite significant
in terms of how international law is developing.
PIL, 28.12.2016 (11 am)

The last 10, 15 years we seeing development moving forward but we also seeing backlashes. I think
when you witness some of the policy which are already on the way in terms of anticipating Trumps
entering into office, you can see that they moving certainly a retraction from Obamas attempted
having a more multilateral form policy.
When we start talking about the use of force the reason we pay attention to the United States a
great deal, because it is the head of amount power. You cant talk about international law without
looking at what the United States is doing.

What states do and how they interpret t

State responsibility
We will talk about state responsibility (with respect to aliens in kind of the traditional doctrine of
international law). State responsibility denotes liability of a state for conduct which is in breach of
international law which causes injury to another state or that states nationals. It refers to the
responsibility of one state to another for the non-observance of the obligations imposed by the
international legal system.

[T]he fundamental principle governing the law of international responsibility: a State is


responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis,
on its behalf. (ICJ Bosnian Genocide case 26 February 2007)

There are circumstances where states can act say with respect to the use of force that is not give
rise with state responsibility. And that for instance we already discussed in terms of intervention:
If you have a consent of the state where you are intervening that doesnt give rise to state
responsibility.
And then you have necessity, again another principle. Self-defence provide under customary law and
Art. 51 of the UN Charta.
And lastly when we look at the Nicaragua judgement will we seeing that when states take
countermeasures, countermeasures is in response to violation. This give not rise to state
responsibility.
Those are kind of the categories where states can act in violation or against the norm of international
law but is not a violation give rise to international state responsibility.

Draft Articles
The international Law Commission (ILC) produced Draft Articles on Responsibility of States for
Internationally Wrongful Acts 2001 (Draft Articles) and General Assembly Resolution 56/83
December 12, 2001, and recommended the text of these Draft Articles to government for adoption.
The General Commentary to the Draft Articles 2001 states that they seek to formulate, by way of
codification and progressive development, the basic rules of international law concerning the
responsibility of States for internationally wrongful acts.
The emphasis of the Draft Articles is in the secondary rules of responsibility. They are set out as
follows:
Part 1, the Internationally Wrongful Act of a State;
Part 2, content of the International Responsibility of a State;
Part 3, the Implementation of the International Responsibility of a State; and
Part 4 deals with the general provisions applicable to the Articles as a whole.

Draft art. 1 maintains, Every internationally wrongful act of a State entails the international
responsibility of that State.

Draft art. 2 provides:


There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State,
e.g. there must be an act attributable to a state and a breach of an international obligation must have
occurred.

Note, internationally wrongful acts are determined by international law and not domestic law:
The characterization of an act of a State as internationally wrongful is governed by international law.
Such characterization is not affected by the characterization of the same act as lawful by internal
law, Draft art. 3.

Tehran Hostage case


I just want to point out that we are looking at the Draft articles. I wanted you to think about the
Teheran Hostage Case in line of the content of the draft articles.

So youve got draft art. 4. Consider the ICJs approach to the responsibility of the state for non-state
actors Tehran Hostage case:
1. The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever position
it holds in the organization of the State, and whatever its character as an organ of the central
government or of a territorial unit of the state.
2. An organ includes any person or entity which has that status in accordance with the internal law of
the State.

So it doesnt have to be central, it could be territorial, it could be part of a region within a state.
Here for in terms of attribution, the conduct which is not an attributable to a state under the
proceeding articles shall nevertheless be considered an act on the states under international law.
Invent to the extent of a state acknowledges and adopts the conduct in question as its own. If you
look at the Teheran Hostage Case, you can see that the court at art. 11 effectively near each other in
terms of content; and the act within Teheran Hostage Case was where they focused upon really the
ownership of the acts of the revolutionary students who taken the diplomatist as hostages, was the
act of decree.
Often it isnt that clear whether it arise to state responsibility or not. But here art. 11 you can see
that what matters is that the state is acknowledging and adopting the conduct in question and that
becomes quite a high threshold. So art. 11 again works very closely with the rulings of the court.
And we are going to look at these principles with respect to attribution and different defenses and
countermeasures.
So state responsibility is quite important, quite detailed.

Does anybody know what the difference is between diplomatic protection and the privileges or
immunities of diplomats?
Diplomatic protection is, when a state protects its nationals in another jurisdiction. (This is when they
are actually protecting suffer nationals in another territory where they are aliens.) So effectively
that has nothing to do with diplomats exercising their own privileges or immunities from national
jurisdiction.

When we looking at what the standards are when aliens merit the protection of their state under
international law - when a state could claim that they suffer a violation as a result of an alien being is
treated - we also going to see how it converges and in some ways is actually been taking over by
international contemporary human rights law.

Barcelona Traction Case


She expects us to know the case not the hole case, but just what it is about - so I give you a little
summary from Wikipedia :
Barcelona Traction, Light and Power Company (BTLP) was a Canadian utility company that
operated light and power utilities in Spain. It was incorporated on September 12, 1911
in Toronto, Ontario, Canada by Frederick Stark Pearson. The company was developed by
Belgian-American engineer Dannie Heineman. It operated in Spain but was owned mostly by
the Belgian holding companies SOFINA and SIDRO and became the subject of the
important International Court of Justice case, Belgium v. Spain (1970).

This is a very complicated case about shareholders and so on. All that I want you to know about this
case effectively a principle that you need to know about this case - is that its states that under
international law there are some obligations that are by their very nature the concern of all
States.In view of the importance of the rights involved, all States can be held to have a legal interest
in their protection.
Obligations erga omnes: Obligations owed to the international legal community as a whole and
which every state has an interest in having respected.

So if you look at the discussion that arises in the Barcelona traction case when they talk about these
obligations they derive in 34, e.g. the court states contemporary international law from the outlaw
of acts of aggression and of genesis as also from the principles and rules of basic rights of the human
person including protection from slavery and racial discrimination.
So what they are really doing is pointing out here that you have norms of jus cogens (the principles
which form the norms of international law that cannot be set aside). And if you look at the kinds of
acts that there identifying those are really norms of jus cogens. The peremptory norms that rump
other international legal obligations. So theyre saying that it isnt harming those one state, its
harming against all states.
International Minimum Standard v. National Standard
Rankin v. Iran (US v. Iran) Iran US Claims Tribunal (1987)
Neer Claim (US v. Mexico) U.S. Mexican General Claims Commission (1926)
Paul Neer lived with his wife (private claimant Fay Neer) near the village of Guanacevi,
Durango State, Mexico, where he worked as a mine superintendent. Nov. 16, 1924, about
8:00 PM While Paul and Fay were travelling home on horseback, they were stopped by
some armed men, who talked to Paul in a language that Fay did not understand, after which
bullets were fired and Paul was killed. Mexican authorities examined Paul's corpse
shortly after the incident and found 3 bullets which penetrated his body. The next day, the
Guanacevi district judge examined some witnesses, including Fay. The investigation
proceeded; arrests were made, but no one was prosecuted or punished for the death of Paul.
The United States of America, representing Fay and her daughter Pauline, now come before
the American-Mexican Claims Commission claiming $100,000 in damages for the death of
Paul.

State responsibility to aliens


The injury to an alien is effectively an injury to the state.
So if you ask what is the difference between the protection of human rights before World War II and
after WW II largely the protection of individuals fell under discrete categories.
So you might have claims being brought on, behalf on the Neer case of the wife and daughter to
deceased Mr. Neer, but they were being brought as injuries against of a state. That individuals, that is
not by virtue of human dignity - and the individual attributes and rights that an individual may
possess that was harmed, this is really in terms of the injury in insult to their sovereign state.

So the question in the Neer case is, (and it becomes a classic question even in modern times)
should you be affording a different standard to aliens within a jurisdiction and indeed higher
standards than you are to nationals?!
Problem: double standard for nationals and aliens

Exhaustion of local remedies


This is a basic rule of international law and is reflected in Draft art. 44 (b) of ILC Draft Articles on State
Responsibility 2001. Draft art. 44 (b) provides: The responsibility of a state may not be invoked if the
claim is one to which the rule of exhaustion of local remedies applies and any available and effective
local remedy has not been exhausted.

Treatment of Nationals/ Standard of Treatment


Each state has an obligation to protect nationals from another state who are lawfully within its
territory. If they fail in this obligation responsibility is incurred. The level of treatment to be afforded
to such individuals is not settled.

The National Treatment Standard


According to this standard, non-nationals are to be accorded the same treatment as host state
nationals. See UN GA Resolution 40/144 (1985) Declaration on the Human Rights of Individuals who
are not Nationals of the Country in Which They Live (United Nations).
The International Minimum Standard
This standard is ill-defined but is held to be breached when the offending conduct falls so short that
every reasonable and impartial man would readily recognize its insufficiency, Neer Claim (1926). The
emergence and development of international human rights law, particularly since 1948, has afforded
greater protection for individuals and has also exposed states to external review.
So when you talk about state responsibility, you want to know is this an outrage? Is this insufficiency
so blackened that everybody will acknowledged that it is so? E.g. a 5 minute trial and you have close
to a 100 defendants being trial at the same time, thats what the commission starts saying is an
outrage. (See Rankin v. Iran (US v. Iran) Iran US Claims Tribunal (1987)) But in terms of just different
systemic approaches thats quite different. So the Nee Case is important because of the standard
that it sets. And it sets that standard very high!

Another claims commission case is Iran US Claims Tribunal 1987. In this Rankin Case youve got an
employee from the company who claims that he has to leave Iran (if you were American at those
time, you dont really want to hang there around..) and he claimed that indeed after the fall of the
government he was requested and branded to leave and now he wants back his salary and losses. He
doesnt get it. And he doesnt get it because he wasnt able to prove that he was compelled to leave.
What is important about this case is that it talks about when states can expels foreigners.
This case acknowledges that states have great discretion in terms of removing (non-national)
individuals from the jurisdiction. So you have immigration laws varies from country to country. This is
about sovereign powers. But the key point here is that when individuals are removed it has to be in
accordance with basic principles of the rule of law. So they explicitly say here is about the manner in
which the individual is. The burden was on the individual to prove that the way in which he was
returned was arbitrary, discriminate or a breach of the expelling states obligations.

And that should be something which is on your mind when you watch the news on a regular basis:
One of the great sovereign powers that states have is control over their borders. So thats why the
Asylum crisis is precisely what it is. Because one of the few channels of entry states lawful under
international law, where states cant afford you automatically is if you are seeking protection under
the 1951 refugee convention or customary international law. Its why you cant turn ships back in the
Mediterranean is because you have international legal obligations.

Human Rights Law


You can frame the same argument thats being made under states responsibility to aliens under
national human rights law. And if you framed it under international human right law it is apply to
nationals to aliens. So what you see is that human rights law is many ways surpassed the whole kind
of doctrinal reliance upon state responsibility to aliens.

5DECEMBER 2016
Universal declaration of human rights slide
With respect the human declaration it is important to discuss about the
individual within society and social security, article 1 ESC Economic Social
and Cutural Rights are considered as the right way to THE FREE DEVELOPMENT
of the human person.
You also see the right to work, to employment, to be payed, there is this idea of ESC as
rights indispensable for the developing of human individual, in this terms the UN Declaration
(as a result of a particular view of west countries after the Cold War) can be considered as
the cornerstone for social welfare.
States formally endorsed
- family right-> it is interpreted theologically,the interpretation of family as
regard the same sex marriage not in the intent of the drafters.
- The right to asylum implying a long time protection in the countries
there is a difference between universal declaration and other HR treaties.
FALK QUOTE (slide) the way in which HR became very fragmented.
We end up with an HR mov very fragmented with its of categories of rights: individuals tend
to see themselves as the realization of these rights.
Infact when you talk about areas and communities, the problem, the backlash is to consider
THE IDENTITY RIGHTS.

Universal declaration of HR slide universal convention is a legal instrument.


Many of the problems with HR regard all the problems that we have in IL in generally.
According to UN charter we have to consider two organs: the UNGA and thE SC, that aftr
the fall of the Berlin wall started to issue resolution (--> art. 25 of the UN CHARTER states
that its resolutions are binding)
A very detailed study of the international Criminal Court look at the attempts of the court to
going into the conduct in Afghanistan, there is recorded in hisory the west Eu countries
Perhaps all states are like to this stand that are not really willing to expose themselves in the
area they could not international
When we talk about state actors : civil society is also important for HR, this is HR movement
in the Convention on
The expertise of Civil society, a technical knowledge but more importantly the
nature of the debate: they have a way to shape public opinion and that is why
HR are incredibly affected in a very are effective way global and professional
networks
1980 political science start report as journalists
So HR is really related to to the concept of globalization because it Introduces
new actors, and it is about introducing use of technology globalization
through social medias. It is very emblematic the use of technology
When we are talking about institutions there are a global level of HR commission
in 1993 fundamental rights, the Irish human rights commission, The Northern
Irish human rights commission, all these are bodies that are part of HR
governance regime
These institutions are set up also at the national level by global treaties
This is the kind of framework that governance HR.
HR is divided into three categories and UN states the primacy of civil and political rights and
we are talking why.
Hierarch of norms?--> no, it is the way of approaching behind that important, it is
the backdrop for the declaration of HR and also for the structure of the UN
charter if you read the preamble
The belief is that absolute power is given By restricting freedom of expression and assembly
Consequently of WW2
Why civil and political rights are different from economic which is easier in a
certain sense?
Primacy of civil and political rights
There are three generation of rights look slide
-CIVIL AND POLITICAL RIGHTS complex because every country set different
standards. You have positive obligations. But they are NEGATIVE. They also deals
with policy. Yu are not talking about complex programme
-ECONOMIC, SOCIAL AND CULTURAL RIGHTS->it is hard because you cannot
figure the health system priority? THEY REQUIRE POSITIVE APPLICATIONS.
There are committees within a state but they are not always representative (Rich
countries ny and geneva). Committees in Geneva programmatic necessit, so
within a country it is a matter of resources, of trade-off: when you look at
constitutional jurisprudence of South Africa or India where ESC are provided in
the constitution the big issue is how judges manage to take over the policy
deliberation?
So ESC are positive and programmatic but they also concern a complex policy deliberation.

- What are we going to see in the UN treaties?


-Elimination of discrimination against women
-Treaty resolutions
- Pinochet case
- The convention of the rights of the child 1999
- The end of cold war with ideological implementation in IL, the division
between East and West
-The First in the New World Order
so in many ways a treaty divide two generations of rights
- International Convention about the division in global south and north
- The convention of the rights for persons with disabilities, relatively new
individual autonomy has to flourish their own community

In the GROUP RIGHTS


UN TREATIES-- w we do not have i the Un treaties in 1951, these treaties that individuals
can make their complains, it is something really remarkable but it is not as remarkable as it
seems because states have to consent, they usually look at the ICCPR where states have
the use of the committee , dealing actually with individual cases, they are not binding but
they concede people to submit petition.
Highly politicised in the UN system, however the treaty base mechanism emerges from
concrete legal obligations.
Look at the convention itself, look at the universal declaration is an organic legal
instrument when you look at universal declaration you will see you have the
definition as a all because of much more details. And then when you you get
later to the treaties you will give them a specific roof of treaty. Convention
against torture you can see how the definition becomes a subjective and
objective element, for example we talk of torture also in terms of humiliation. But
the right to be free from torture it is simply put out i the UN declaration, but it is
because there are the specific conventions with specific definitions. This is why
you have to look at the PRIMARY SOURCE.
When you study international right you look also at the sovranty-> because effectively we
are talking about that the changing notion of sovereignty In IL. State constraints and
consents some actions.
International law is about the tension about constraining and consenting legal
action sovereignty that is ever absolute
It is well represented by the populism backlash in brexit, in trump victory. However
sovereignty is a limit because of the recent desire for global govt.
If you go through the UN websites you can see that every time is something difficult the
create a convention because it is law over people.
The implementation of treaty-> you do not have enforcement mechanism so it should be the
result of dialogue.
When you look at the previsions of the optional practical the views of the
committees are NOT JUDGMENTS it is important, they are experts but their
decisions are not binding.
So it is important to look also at the language.
The European ORIGINAL system for HR is much more effective because it is binding (their
decisions are binding).
The committee themselves, NGOs pretend that their views over convention is binding
They can issue general comments as the war against terror according art 7 (slide).
So We have 167 states parties and 114 that accept optional practicals: here what it is
important is not the number but the ratio.
Why the number for optional practicals is so high? Because they are no binding.
The EU convention of HR has members that wanted to join: in fact states members were
required to become a party of eu HR convention.
HR is more effective when economic programmes are concerned EU,
MARSHALL PLAN.
In fact in this cases if you put HR in your political agenda you have more chances
to have success so it is more easy if you integrate the rights in a broader
programme which includes economic positive rights.

The VIENNA DECLARATION (SLIDE) moves into the post cold war era with no
binding instruments for the community nation and the civil society. 5th clause it
is important in order to describe how the approach of IL ihas been changes
during the time.
From the islamic and sharia law, you cannot use, in order to escape from the obligations, as
some cultural relativism.
7(slide) latin america a very strong court, africa, eu. YOU DO NOT HAVE ANYTHING IN
ASIA (Asean human rights slide), the 1951 convention related to the refugees most asean
states have not ratified.
2012 the original declaration
You can see the regionalism as a significant force, in fact we have regional variations of
understanding HR (WHILE EU focuses on the civil and political rights), the realization of HR
has must be seen both as the national and regional level.
In fact if you look at the african way there is much more emphasis, more
cultural specificity related to the regional realities.
If you look at the article 8 you are looking again at rights and duties. (and
to..important in the slide)

PIL 21 11
Immunities from Jurisdiction
Protect states in theory
Came under critique
Categories of diplomatic staff
Under art 41 creates duty to not interfere with internal affairs. How do you interpret
interference?
Why do states refrain from pointing out?
Obligations of a state: inviolability of the mission and of the diplomatic agents
Case in Ireland: event of diplomatic mission
Yvonne Fletcher Case
Art. 22 no longer applied whats the argument for that? Functional argument.
Judgements from the ICJ are differential and quite conservative to states? Want to appear
neutral as it is important
Why were they going after the US?
State Immunity: the two theories: absolute immunity theory replaced by restrictive
immunity doctrine.
Head of state immunity

I dont know which lesson is that under in blue however I put my not the same in order to
help (maybe just confuse Aahhaha)the person who has. After these there is the other lesson
I had to do (5th december)!

Crimea and Russia


There are others interesting aspects: russia because
There are some borders tha are disputed
Even worse the attempt to put the ukrainian will
In east ukraine: security council because it was very disputed during this crisis
russia was claiming that there were no military forces of russia over that territory
What part of international law comes up?
ATTRIBUTION- STATE RESPONSABILITY, It is a simple question of state responsability
What is the level of state responability
The issues are always political obv, but there is this question of state responsability
ermissive school is looking at the article
ARTICLE 2 (4) SLIDE
We are talkng about the unilateral use of force
Slide about the permissive v restrictive schools of interpretation
conditional the territorial integrity
Restrictive basically says that state no long can exercise use of force totally
banned. Looking strictly at the UN charter
How states behave? It reflects the interpretation of the UN charter

NICARAGUA V. USA ICJ


The right of the self defending, how it is evolving
So i have taken few important points:
Slide
1.
2. We look at the exercise of the right of sef defense, the exercise of self defense, it i
importnat to consider also the controeasures.
3.
4.
5. It is also important, talking contromeasures
6.
7. Restricts
So take this template and go to the case!
The case is very important in terms of self defense, it is important in terms of the basis of
international law, it is importnat to talk about the effetiveness of the internaional law, this is
important in terms f custom. Iy is very imprtant to consider that also ukraine-->russia
federation if you look at the claim against russia federation because according to artice 24
russia has the right to dispute settlement
Racial descrimination convention
Disputed by ICJ
Whn you define an arm attack look at the slide
With respect of acrime russia was arguiing that it was ecxerciting the right of self defense
wiithin IL
In IL if you look at the definition of agression it is very difficult to see when you
dont hav a real attack and use of force
Asistece of rebels wether but it could be a threat of the use of force and an amout of
internvention. Always be awar that there should be a respect of the aricticle 2 (4)--> they are
two distict provisions.
Only target state when you do not have an attack bt you have the use of force
yu can respod with he contromeasures that are actually in the prevision but no
ally will enter in the conflict only the target state.
It coulfd be significat if you consider the oil patform case slide
Criteria of proportianility and necessity--< you see NICARAGUA case but it comes up when
a stet is responding and ou have always to think..
IDEOLOGY AND INTERVENTION
Justification of state to take legimacy, ideoogy is very imprtnt and in this regard is importna
also nicaragiua case.
Intervention lawful to suppport anti-communism for reagan promotion of
democarcy
Soviet desire
Wheter or not humanitarian intervention is just like something connected to these causes
IT IS DIFFERET whn you go in wit an humanitarian intervention becausee there
is an abuse of the UN CHARTER.
Historically and powerful doctrine you have theseideology intervention
The prtection ntionals abroad(slide) if you remeber the diplomatic protection is very different
Entebbe (1977)--> rescue operaion in uganda. State in danger and unable to protect and so
interventionis indispenable, in ntebbe cse regarder very highly in termsof clear violation i n il
and state practises
Grenada (1983) the same time a left wing, the problem was aswhen tthe russian
came too georgia
Panama (1989) mediacl students

Jewish hostages,
Reprisal,
wha t criteria exists in IL in oder to assess if the intervntion is lawful? Afghanstan, recent
military inteventions

PIL
12 DECEMBER
11:00
INVITATION, SELF DEFENCE

REPRISALS
We are talking about invitation and we are thinking of those cases when states have the right
to use of force. We are talking of self defense: but how the use of force regulated in the
International law and in the customary international law? We should talk about the new kind
of weaponry and, at the same time, an incredible danger that is understanding in the post 9
11 era how the assessment of the risk often can be shaped by widespread fear.
There are real norms of international law to regulate that force, certainly under Bush
administration there was a very clear policy to disarmament terrorist obviously before the
attack theyve done. Obama administration and the use of drones determines a new use of
weaponry. This issue: what is the distinction between the use of force against the terror, the
self defence.

INVITATION: (SLIDE) as the ICJ has indicated, to accept the world of the interfering states
and the intervening states that received invitation. We see that it is NOT EFFICIENT when
we have an autonomous region inviting another state: this would create uncertainty because
invitations can be a mask, as in the context of Czechoslovakia, for regime change.
What is the difference between enforced invitation or, indeed, as Russia in Afghanistan, the
entry into the jurisdiction.
Invitation is, on the one hand, something that is dispute in IL, as the right of a sovereign
state to invite another sovereign state into the jurisdiction, and we interpret the doctrine, but
actually just in the presentation of that. Therefore invitation is something disputed in IL
THE USE OF FORCE We get humanitarian intervention: that is about doctrine.
The protection of national for having debate for doctrine whether or not it is acceptable in IL.
When we talk about invitatio there is no question for the doctrine: it is established. What we
really see in this area of IL is a disruption of this application in the presentation of the facts
by states inviting themselves rather than be in the target of invitation.
HUMANITARIAN INTERVENTION (SLIDE)It is probably the most radical area of IL.
As I pointed out, when we see the justification of intervention for ideology and the way in
which there is a protection of HR is used as a justification for intervention.
As i pointed out, you can make a clear distinction between HR protection because of
humanitarian intervention when you have a systemic HR abuse and the pressure is very
high and the use of ideology as a justification.
However countries like Brazil, as part of non aligned movement, bring the perspective of
states that have no hegemonic power.
However the question here is: when the humanitarian reason that justified intervention
becomes controversial? Kosovo intervention by neighbours, which is a very turning point in
IL.
In terms of humanitarian intervention, and in particular in WW2, it is important to underline
the problem (academic and lawyers think that it is important): when do states have to
intervene to protect individuals?
Possibly when you end up with a situation like German and in Sudetenland.
Nonetheless usually you can find that usually there is a connection between neighbour
states and the persecuted minorities.
Very long list of examples of 1990 intervention, but no very strong, from which people
replayed if humanitarian intervention was part of customary international law.

There are a lot of criticisms, if you recall in the Corfu Channel case
(https://en.wikipedia.org/wiki/Corfu_Channel_case) in which ICJ upholding the principle of
non intervention, essential for maintaining the rule of law and the International peace and
security: it was one of the first pronouncements.
After the WW2 to now from having the humanitarian intervention with very
weak package forms with the responsibility to protect to now (it is an accepted
doctrine in IL).
Idea of intervention widely recognised in France for example, for REAL humanitarian
disasters and there is an humanitarian obligation to intervene in certain context. The
international community used legacy to introduce an obligation within an humanitarian
disaster to intervene.
You have also intervention in the area of peacekeeping in the post fall of the Wall era, when
we can see the UN be informal proactive and peacekeeping. Its Humanitarian intervention in
the late 1990s, that is the turning point in the discussion. And we will see the evolution of its
humanitarian intervention.
But it is largely seen to be a illegal but LEGITIMATE. No security council organisation
because Russia has great sympathies for Serbia (they still do) and they worked to operate
interventions in regions of Serbia. We have humanitarian intervention as a measure used by
1999, and in IL, Kosovo is probably identified as very important because of its declaration of
independence. International community in a very twist position between supporting
independence of Kosovo because they done
Supporting the independence of Kosovo because they dont wanna back with Serbia and at
the same time respecting boundaries. Kosovo provides really the step with which
international norms are often embedded in order to adapt for a certain set of circumstances.
And the argument for humanitarian intervention is that NATO break international norms and
creating the norm of responsibilities.
Humanitarian intervention conflicting principle (slide=)
In Kosovo we the importance of states practise: Does states practises effectively create new
rules? You have really attention to humanitarian intervention and national sovereignty,
discussed in HR law, you got UN charter law.
It is important to consider the chapter 7 the security council authorise the use
of force it is the same here.
In Kosovo humanitarian intervention exists under custom, indeed it does no
matter, we have two separated areas of international law:
-The custom
-the humanitarian intervention that is actually a right and indeed a duty under
custom.
States practises relationship under custom but so divided in two areas of law.
We come back to Nicaragua, again, with the dissenting opinion.
- The exception to non intervention is the 1948 genocide convention to prevent
genocide and therefore to protect a group, a minority identity from
disappearing.
If you think at that you have to know that the convention is a concrete obligation to prevent
genocide. In certain context genocide or any sort of human rights abuses can be used to
justify all source of things under IL.
- The other problem you have with humanitarian intervention is the fact
that it requires the use of military use of force. Intervention for
humanitarian reasons and giving rise to other separated and distinct forms
of human suffering a tension to debate.
You have another tension between LEGITIMACY AND LEGALITY
Legitimacy issue: arises from the fact by not doing anything, UN is appearing illegitimate.
NATO legal goin in because there was the security council authorization but it
was the legitimate thing to do.
The question is who determine what is wrong?
That is a problem for example with countries as Brazil and India.
So you end up with the independent international commision in 200o the
intervention was illegal?
When you talk about humanitarian intervention in Kosovo under international law someone
argue that under customary IL was a lawful intervention (the argument was really weak in
terms of states practises to support them under custom) and they will also argue that
perhaps was also legitimate because there was a certain degree suffering, and then there
are those that simply say that it was simply illegal.

Now for intervention what it is important is the distinction between the COLLECTIVE USE
OF FORCE AND THE INDIVIDUALS ONE.
It is important also to underline whether or not the intervention has been carried
out by a country or an organization For example whether it has been carried
out by the Arab League or the EU, or also UN.
(Intervention slide)
But the very important thing when we talk about humanitarian intervention is that it has to be
used only in response to systematic HR abuses.
The important component to lead SC to take action is the HUMANITARIAN
DISASTER (component that make it lawful), for instance what is happening
regarding the Refugee Crisis (refugee convention and genocide in Rwanda).
These are the kind of situation in which international community is invested with
the use of force right not in terms of legitimacy or legality but in terms of
humanitarian disaster that was spilled over the borders. No many conflict are
effectively like this.

US POLICY DOCUMENT in the Obama era, with Obama administration who set a
committee to look at the area in which these issues are concerned: should there
be intervention? When there is a systematic abuse, genocidein Syria there
should be an intervention? Threshold crimes
But which is the criteria?
And if you look at Libya which is a mess, i shows the difficulty in terms of intervening.
When you intervene you have to ensure that you can have peaceful transition.

Many argue that there are strategic reasons behind intervention like in Libya
Are states like human beings and are they pushed by special interests?
With this perspective maybe we can relook the intervention in Bangladesh.
The legal terminology at this time was not focused on the intervention. So in part
reconstructing the doctrine, adapting the circumstances now.

SLIDE WITH HUMANITARIAN INTERVENTION EVOLUTION,


It is important also to consider the selective responses (slide)

Considering NATO air strikes Kosovo 1999 (slide) in the case book (look at
Harris)--> you can see a different perspective with Russia, China no
interventionist, India, the Uk and US for humanitarian dimension of the crisis
The France non compliance of Serbia with SECURITY COUNCIL RESOLUTION
claiming for a much more formal legality in terms of a justification for the
intervention in which they were involved because of the NATO. But the non
aligned states is the probably the best and strongest argument: they were
looking at the definition of AGGRESSION.
UNGA RESOLUTION 3314 ON THE DEFINITION OF AGGRESSION
Ratified in ROME STATUTE.

Humanitarian intervention
NATO 1999 describe humanitarian intervention, it is very important NO INVITATION
YOU DO NOT HAVE STATE CONSENT , If you do not have security council organisation
you rely on some blends on the doctrine of humanitarian intervention.
And then in particular is caused by violation so there is a very simple definition.
- Then the Evolution of UK policy regarding Humanitarian in intervention
the transformation in legal perspectives: in 1986 illegal.
By 1992 six years later there are identified circumstances under which effectively states was
able when you begin to see t see the dissolution of the former Yugoslavia.
The problem with this in this definition in the context of humanitarian disaster
such as Libya, given the fact that these type of disasters are caused by armed or
religious groups, it is very difficult to calculate.
We have this in the intervention of SC in Bosnia assistance was provided.

AND NICARAGUA?
Is it a form of assistance or just a form of intervention?

RESPONSIBILITY TO PROTECT (SLIDE)

Then you have the security council passing up resolutions setting up umanitaria areas. UN
has to be more aggressive on their actions.
Humanitarian intervention under customary international law if you have
this problem you have to go back to the control of security council. So the
ICIJ running this problems, consultations about the doctrine
responsibility to protect.
But if humanitarian intervention is a violation of state sovereignty: If you actually
acknowledging that a sovereignty has responsibility, it is not absolute. Fulfil their
basic obligations is what they should do. 2427 UN CHARTER RESOLUTION

The key thing here is that the sovereignty action has to give a mechanism able to protect the
citizens in these contexts.

-You have the prohibition against the use of force; you have the doctrine of the responsibility
to protect. So it gives power and force, lets look to paragraph 138 (Slide 2005 world summit
outcome declaration)
Again we come back to Rwanda Genocide, The hate speech, the separation between THE
GLOBAL NORTH AND THE GLOBAL SOUTH (the convention is on the blackboard).
Paragraph 139 this obligation the state has to protect requires the security
council control.
when obama stalks about cross the red lines about the use of chemical
weapons the state may effort to his right but the state must look to the statute.
Sovereignty to not be violated. The real problem in Syria was Russia
responsibility to protect is what happens in the Humanitarian intervention and
the role of security council.
From Humanitarian intervention to... (slide)
The use of force is regulated, sovereignty implies rights and responsibilities: to prevent
prevent (as in genocide convention), to react (as in humanitarian convention for systematic
abuses).
-you have In 1999 humanitarian intervention in balkans (resolution of 1998).
-you have International prosecution ICC and its struggles
The Libyan intervention you have security council result all necessary
means but here you do not have the doctrine of responsibility. The example of
international community going on but libya is a different more complex situation
than Kosovo.There were no huge games in Kosovo, you also EU, and UN still
struggling
external forces constructing and reproducing the rule of law.--> NEXT LECTURE
ON LIBYAN INTERVENTION.