International Law

Treaties

(or international conventions) are a more modern and more deliberate method Treaties may be divided into 'law-making' treaties, which are intended to have universal or general relevance, and 'treaty-contracts', which apply only as between two or a small number of states. Treaties are express agreements and are a form of substitute legislation undertaken by states.

Opinio Juris

1. Belief that a state activity is legally obligatory, is the factor which turns the usage into a custom and renders it part of the rules of international law. To put it slightly differently, states will behave a certain way because they are convinced it is binding upon them to do so. 2. · Lotus case: only if such abstention were based on their the states being conscious of a duty to abstain would it be possible to speak of an international custom 3. · Nicaraguga case: for a new customary rule to be formed, not only must the acts concerned 'amount to a settled practice', but they must be accompanied by the opinio juris sive necessitates.

Purpose of recognition

1. If a government is unrecognised, there is no exchange of diplomatic envoys and thus problems can arise as to the enforcement of international rights and obligations. 2. Although the effective control doctrine is probably accepted as the most reliable guide to recognition of governments, there have been other theories put forward, the most prominent amongst them being the Tobar doctrine or the so-called doctrine of legitimacy 3. This suggested that governments which came into power by extra-constitutional means should not be recognized, at least until the change had been accepted by the people

General principles of law

1. In such instances the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy 2. · In the Chorz´ow Factory case in 1928: 'it is a general conception of law that every violation of an engagement involves an obligation to make reparation' 3. In the German Settlers in Poland case, the Court, approaching the matter from the negative point of view, declared that 'private rights acquired under existing law do not cease on a change of sovereignty . It can hardly be maintained that, although the law survived, private rights acquired under it perished International judicial reference has also been made to the concept of res judicata, that is that the decision in the circumstances is final, binding and without appeal ·Administrative tribunal case - according to a well-established and generally recognised principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute

Principle of domestic jurisdiction

1. It follows from the nature of the sovereignty of states that while a state is supreme internally, that is within its own territorial frontiers, it must not intervene in the domestic affairs of another nation. 2. This duty of non-intervention within the this jurisdiction of states provides for the shielding of certain state activities from the regulation of international law. 3. Eg: · Anglo-Norwegian Fisheries case: although it is true that the act of delimitation (of territorial waters) is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other states depends upon international law.

International custom

1. It is regarded as an authentic expression of the needs and values of the community at any given time 2. The existence of customary rules can be deduced from the practice and behaviour of state 3. North Sea continental shelf case 4. The role of custom is perceived to be much diminished 5. It is possible to detect two basic elements in the make-up of a custom. These are the material facts, that is, the actual behavior of states, and the psychological or subjective belief that such behavior is 'law'.

State responsibility

1. It provides that whenever one state commits an internationally unlawful act against another state, international responsibility is established between the two. A breach of an international obligation gives rise to a requirement for reparation 2. Accordingly, the focus is upon principles concerned with second-order issues, in other words the procedural and other consequences flowing from a breach of a substantive rule of international law

State Jurisdiction

1. Jurisdiction concerns the power of the state under international law to regulate or otherwise impact upon people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. 2. Jurisdiction, although primarily territorial, may be based on other grounds, for example nationality, while enforcement is restricted by territorial factors

Legislative jurisdiction

1. Legislative jurisdiction refers to the supremacy of the constitutionally recognized organs of the state to make binding laws within its territory. Such acts of legislation may extend abroad in certain circumstances. 2. A state that adopts laws that are contrary to the provisions of international law, for example as regards the treatment of aliens or foreign property within the country, will render itself liable for a breach of international law on the international scene, and will no doubt find itself faced with protests and other action by the foreign state concerned. 3. For example, if France were to order its citizens living abroad to drive only French cars, this would most certainly infringe the sovereignty and independence of the states in which such citizens were residing and would constitute an illegitimate exercise of French legislative jurisdiction

Diplomatic immunity

1. Rules regulating the various aspects of diplomatic relations constitute one of the earliest expressions of international law 2. Diplomacy as a method of communication between various parties, including negotiations between recognised agents, is an ancient institution and international legal provisions governing its manifestations are the result of centuries of state practice

Nature of IL

1. The international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognizing no one in authority over them. 2. International law has no legislature 3. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with. 4. IL is primarily formulated by international agreements 5. · There is the element of reciprocity at work. States quite often do not pursue one particular course of action which might bring them short-term gains, because it could disrupt the mesh of reciprocal tolerance which could very well bring long-term disadvantages. For example, states everywhere protect the immunity of foreign diplomats for not to do so would place their own officials abroad at risk + rewards.

Diplomatic protection

1. The principle of this originally developed in the context of the treatment by a state of foreign nationals. 2. A state is under a duty to protect its nationals and it may take up their claims against other states. Diplomatic protection includes, in a broad sense, consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, a retort, severance of diplomatic relations, and economic pressures 3. There is under international law, however, no obligation for states to provide diplomatic protection for their nationals abroad, although it can be said that nationals have a right to request their government to consider diplomatic protection and that government is under a duty to consider that request rationally.

Material Fact

1. There are a number of points to be considered concerning the nature of a particular practice by states, including its duration, consistency, repetition and generality 2. In international law there is no rigid time element 3. The basic rule as regards continuity and repetition was laid down in the Asylum case decided by the ICJ in 1950. customary rule must be 'in accordance with a constant and uniform usage practised by the States in question' 4. The ICJ emphasised its view that some degree of uniformity amongst state practices was essential before a custom could come into existence in the Anglo-Norwegian Fisheries case 5. · In the North Sea Continental Shelf cases, the ICJ remarked that state practice, 'including that of states whose interests are specially affected', had to be 'both extensive and virtually uniform in the sense of the provision invoked

Non-recognition

1. There has been developing since the 1930s this doctrine where, under certain conditions, a factual situation will not be recognized because of strong reservations as to the morality or legality of the actions that have been adopted in order to bring about the factual situation. This approach was particularly stimulated by the Japanese invasion of Manchuria in 1931. 2. The doctrine of not recognizing any situation, treaty or agreement brought about by non-legal means was named the Stimson doctrine after the American Secretary of State who put it forward. 3. However, state practice until the Second World War was not encouraging. The Italian conquest of the Empire of Ethiopia was recognized and the German takeover of Czechoslovakia accepted. Eg Rhodesia, Tobar's doctrine

The territorial principle

1. This basis for the exercise of jurisdiction reflects one aspect of the sovereignty exercisable by a state in its territorial home, and is the indispensable foundation for the application of the series of legal rights that a state possesses. 2. a country should be able to legislate with regard to activities within its territory and to prosecute for offences committed upon its soil 3. All crimes committed (or alleged to have been committed) within the territorial jurisdiction of a state may come before the municipal courts even where the offenders are foreign citizens

Judicial Jurisdiction

1. This concerns the power of the courts of a particular country to try cases in which a foreign factor is present. 2. In criminal matters these range from the territorial principle to the universality principle and in civil matters from the mere presence of the defendant in the country to the nationality and domicile principles.

Implied Recognition

1. This is founded upon the will and intent of the state that is extending the recognition. Accordingly, there are conditions in which it might be possible to declare that in acting in a certain manner, one state has by implication recognized another state or government. Because this facility of indirect or implied recognition is available, states may make an express declaration to the effect that a particular action involving another party is by no means to be interpreted as comprehending any recognition. 2. Recognition is not normally to be inferred from the fact that both states have taken part in negotiations and signed a multilateral treaty, for example the United Nations Charter

Executive Jursidiction

1. This relates to the capacity of the state to act within the borders of another state 2. The seizure of the Nazi criminal Eichmann by Israeli agents in Argentina in 1960 was a clear breach of Argentina's territorial sovereignty and an illegal exercise of Israeli jurisdiction.

Passive personality principle

1. Under this principle, a state may claim jurisdiction to try an individual for offences committed abroad which have affected or will affect nationals of the state. 2. Cutting case 1886 3. The overall opinion has been that the passive personality principle is rather a dubious ground upon which to base claims to jurisdiction under international law and it has been strenuously opposed by the US82 and the UK, although a number of states apply it.

The elements of customary international law include

1. Widespread repetition by States of similar international acts over time (State practice). 2. Acts must occur out of sense of obligation (opinio juris). 3. Acts must be taken by a significant number of States and not be rejected by a significant number of States.

Naturalism

A doctrine that human affairs should be governed by ethical principles understood by reason. It would understand international law as the source being a validity that comes from a system of norms such as reason or morality. A natural law understanding would say that a law cannot be created by states that contravenes jus cogens norms.

Legal personality

A particular view adopted of the system will invariably reflect upon the question of the identity and nature of international legal persons 1. These include states, international organizations, regional organizations, non-governmental organizations, public companies, private companies and individuals. 2. Not all such entities will constitute legal persons, although they may act with some degree of influence upon the international plane 3. International personality is participation plus some form of community acceptance.

Declaratory theory

Adopts the opposite approach and is a little more in accord with practical realities It maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states. This doctrine owes a lot to traditional positivist thought on the supremacy of the state and the concomitant weakness or non-existence of any central guidance in the international community.

Subjects of IL

An entity possessing international rights and obligations and having the capacity (a) to maintain its rights by bringing international claims; and (b) to be responsible for its breaches of obligation by being subjected to such claims.

Ultra Vires

An unlawful act may be imputed to the state even where it was beyond the legal capacity of the official involved 1. In Youman's claim, militia ordered to protect threatened American citizens in a Mexican town instead joined the riot, during which the Americans were killed. These unlawful acts by the militia were imputed to the state of Mexico, which was found responsible by the General Claims Commission. 2. Short v. The Islamic Republic of Iran and In Yeager v. The Islamic Republic of Iran

International Law

And so it is with what is termed international law, with the important difference that the principal subjects of international law are nation-states, not individual citizen.

State

Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widely accepted formulation It notes that the state as an international person should possess the following qualifications: '(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states' The Arbitration Commission of the European Conference on Yugoslavia11 in Opinion No. 1 declared that 'the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority' and that 'such a state is characterized by sovereignty

Article 38

Article 38 of the Statute of the International Court of Justice is widely recognised as the most authoritative and complete statement as to the sources of international law. (a) International conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognised by civilised 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

Law

Consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. Law is that element which binds the members of the community together in their adherence to recognized values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations.

Private international law

Deals with those cases, within particular legal systems, in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign courts. Between individuals and states

Draft articles on state responsibility

In addition to the wide range of state practice in this area, the International Law Commission worked extensively on this topic. In 1975 it took a decision for the draft articles on state responsibility to be divided into three parts: a. part I to deal with the origin of international responsibility b. part II to deal with the content, forms and degrees of international responsibility c. d part III to deal with the settlement of disputes and the implementation of international responsibility

Civil jurisdiction

In general it is fair to say that the exercise of this has been claimed by states upon far wider grounds than has been the case in criminal matters, and the resultant reaction by other states much more muted

Premature recognition

In the case of Croatia, it could be argued that the recognition of that state by the European Community and its member states (together with Austria and Switzerland) on 15 January 1992 was premature. Croatia at that time, and for several years thereafter, did not effectively control some one-third of its territory.

Two types of IL

International law itself is divided into private international law and public international law

Criminal jurisdiction

International law permits states to exercise jurisdiction (whether by way of legislation, judicial activity or enforcement) upon a number of grounds. The importance of these jurisdictional principles is that they are accepted by all states and the international community as being consistent with international law.

Recognition of State

It involves consequences both on the international plane and within municipal law. If an entity is recognized as a state in, for example, the United Kingdom, it will entail the consideration of rights and duties that would not otherwise be relevant. There are privileges permitted to a foreign state before the municipal courts that would not be allowed to other institutions or persons.

Recognition of governments

It will only really be relevant where the change in government is unconstitutional Recognition may be of a de facto government or administration or of a government or administration in effective control of only part of the territory of the state in question. Recognition constitutes acceptance of a particular situation by the recognizing state both in terms of the relevant factual criteria and in terms of the consequential legal repercussions

Constitutive theory

Maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence. Thus, new states are established in the international community as fully fledged subjects of international law by virtue of the will and consent of already existing states. The disadvantage of this approach is that an unrecognized 'state' may not be subject to the obligations imposed by international law and may accordingly be free from such restraints as, for instance, the prohibition on aggression. A further complication would arise if a 'state' were recognized by some but not other states.

Public international law

Not simply an adjunct of a legal order, but a separate system altogether. Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions

Article 31 of the ILC articles

On State Responsibility provides that the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act and that injury includes any damage, whether material or moral, caused by the internationally wrongful act of a state.

Serious breached of peremptory norms (jus cogens)

One of the major debates taking place with regard to state responsibility concerns the question of international crimes. 2. It was provided that an internationally wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community that its breach was recognized as a crime by that community as a whole constitutes an international crime. All other internationally wrongful acts were termed international delicts. 3. Examples of such international crimes provided were aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere or of the seas. 4. However, the question as to whether states can be criminally responsible has been highly controversial.

Conditional Recognition

One well-known instance of this approach was the Litvinov Agreement of 1933 whereby the United States recognized the Soviet government upon the latter undertaking to avoid acts prejudicial to the internal security of the USA, and to come to a settlement of various financial claims.

Article 36(1) of the ILC articles

Provides that in so far as damage caused by an internationally wrongful act is not made good by restitution, the state responsible is under an obligation to give compensation

Article 7 of the ILC articles

Provides that the conduct of an organ or of a person or entity empowered to exercise elements of governmental authority shall be considered an act of the state under international law if acting in that capacity, even if it exceeds its authority or contravenes instructions

Article 4 of the ILC articles

Provides that the conduct of any state organ (including any person or entity having that status in accordance with the internal law of the state) shall be considered as an act of the state concerned under international law where the organ exercises legislative, executive, judicial or any other function, 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. This approach reflects customary law

Article 22 of the ILC articles

Provides that the wrongfulness of an act is precluded if and to the extent that the act constitutes a countermeasure

Article 2 of the ILC articles

Provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and constitutes a breach of an international obligation of the state

Article 10 of the ILC articles

Provides that where an insurrectional movement is successful either in becoming the new government of a state or in establishing a new state in part of the territory of the pre-existing state, it will be held responsible for its activities prior to its assumption of authority

Article 1 of the ILC articles

Reiterates the general rule, widely supported by practice, that every internationally wrongful act of a state entails responsibility.

Restitution

Restitution in kind is the obvious method of performing the reparation, since it aims to re-establish the situation which existed before the wrongful act was committed

Indemnity

Satisfaction constitutes a third form of reparation. This relates to nonmonetary compensation and would include official apologies, the punishment of guilty minor officials or the formal acknowledgement of the unlawful character of an act.

Compensation

The aim is to deal with economic losses actually caused. Compensation is usually assessed on the basis of the 'fair market value' of the property lost, although the method used to calculate this may depend upon the type of property involved.172 Loss of profits may also be claimed

Reparation

The basic principle with regard to reparation, or the remedying of a breach of an international obligation for which the state concerned is responsible, was laid down in the Chorz´ow Factory case, where the Permanent Court of International Justice The essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed

Judicial decisions

The doctrine of precedent as it is known in the common law, whereby the rulings of certain courts must be followed by other courts, does not exist in international law, one still finds that states in disputes and textbook writers quote judgments of the Permanent Court and the International Court of Justice as authoritative decisions.

Nature of State responsibility

The essential characteristics of responsibility hinge upon certain basic factors: a. the existence of an international legal obligation in force as between two particular states b. that there has occurred an act or omission which violates that obligation and which is imputable to the state responsible c. that loss or damage has resulted from the unlawful act or omission Chorzow Factory case: the Permanent Court of International Justice said that it is a principle of international law, and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation.

Extradition

The practice of extradition enables one state to hand over to another state suspected or convicted criminals who have fled to the territory of the former. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law 2. In general, offences of a political character have been excluded, but this would not cover terrorist activities

Principle of objective responsibility

The principle of objective responsibility (the so-called 'risk' theory) maintains that the liability of the state is strict. Once an unlawful act has taken place, which has caused injury and which has been committed by an agent of the state, that state will be responsible in international law to the state suffering the damage irrespective of good or bad faith.

Cessation

The state responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require

The subjective responsibility

The subjective responsibility concept (the 'fault' theory) which emphasises that an element of intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused

Role of force in IL

There is no unified system of sanctions in international law in the sense that there is in municipal law, but there are circumstances in which the use of force is regarded as justified and legal. It is at best soft law. Can be considered consent based governance.

Positivism

This approach would say that its state consent that creates international law. Law does not have to be consistent with morality or a higher state of reason. There are 3 key assumptions of this approach as explanation for law's legitimacy: positive declaration i.e. law must be expressed; IL is created by sovereign states which are the subject of international law; it holds that law is effective even if it is unjust when measured against some moral standard i.e. there is no necessary conformity of international law to morality.

Nationality principle

This concept is important since it determines the benefits to which persons may be entitled and the obligations (such as conscription) which they must perform. 1. Ranging from obtaining a valid passport enabling travel abroad to being able to vote on the other hand, states may not mistreat the nationals of other states nor, ordinarily, conscript them into their armed forces, nor prosecute them for crimes committed outside the territory of the particular state. Nationality Decrees in Tunis and Morocco case: article 1 of the 1930 Hague Convention on the Conflict of Nationality Laws: it is for each state to determine under its own law who are its nationals.

De facto

This implies that there is some doubt as to the long-term viability of the government in question. This recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance Eg UK of USSR in 1921

Nationality

This is the link between the individual and his or her state as regards particular benefits and obligations. It is also the vital link between the individual and the benefits of international law

Protective principle

This principle provides that states may exercise jurisdiction over aliens who have committed an act abroad which is deemed prejudicial to the security of the particular state concerned. 1. The principle is justifiable on the basis of protection of a state's vital interests, since the alien might not be committing an offence under the law of the country where he is residing and extradition might be refused if it encompassed political offences. 2. Can easily be abused, although usually centered upon immigration and various economic offences, since far from protecting important state functions it could easily be manipulated to subvert foreign governments.

De jure

This usually follows where the recognizing state accepts that the effective control displayed by the government is permanent and firmly rooted and that there are no legal reasons detracting from this, such as constitutional subservience to a foreign power. Only a government recognized de jure may enter a claim to property located in the recognizing state. Additionally, it is generally accepted that de facto recognition does not of itself include the exchange of diplomatic relations.

Sources if IL

Those provisions operating within the legal system on a technical level, and such ultimate sources as reason or morality are excluded, as are more functional sources such as libraries and journals. What is intended is a survey of the process whereby rules of international law emerge.

Universality principle

Under this principle, each and every state has jurisdiction to try particular offences. The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole. 2. Competence of the state to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognised by international law 3. These are piracy and war crimes, torture, crimes against humanity 4. E.g.: Pakistani soldiers involved in the Bangladesh war of 1971

Circumstances precluding wrongfulness

Where a state consents to an act by another state which would otherwise constitute an unlawful act, wrongfulness is precluded provided that the act is within the limits of the consent given. 2. The most common example of this kind of situation is where troops from one state are sent to another at the request of the latter 3. Wrongfulness is also precluded where the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the UN. 4. ILC Commentary makes it clear that the fact that an act is taken in self-defence does not necessarily mean that all wrongfulness is precluded, since the principles relating to human rights and humanitarian law have to be respected.

Asylum

Whether this right exists within general international law is doubtful and in principle refugees are to be returned to the authorities of the receiving state in the absence of treaty or customary rules to the contrary 2. The International Court in the Asylum case between Colombia and Peru emphasised that a decision to grant asylum involves a derogation from the sovereignty of the receiving state 'and constitutes an intervention in matters which are exclusively within the competence of that state. 3. Where treaties exist regarding the grant of asylum, the question will arise as to the respective competences of the sending and receiving state or the state granting asylum and the territorial state