I SPECIAL NATURE OF
INTERNATIONAL LAW
1.
2.
3.
4.
Is it law ?
Implementation ?
What about enforcement ?
Who is the legislator ?
Differs obviously from national legal systems
by nature
DEFINITION
 A system of rules and principles, which is
applied in relations between sovereign
states and international organisations like
the UN
The rules created by states in the
relations between them

It is in the interest of states to establish and keep
up a legally organized international system
The rules of international law cover nearly all
areas of international activity: law of the sea,
space law, telecommunications, postal services,
carrying of goods and passangers, money
transfer, trade, warfare, human rights, nationality,
extradition, expulsion and extradition, security of
states, use of force etc.
 In fact very little happens in international affairs,
which would not be regulated by international
law

PUBLIC AND PRIVATE
 The interdependency of states
presupposes a well functioning
international system
 Public International law: between states
 Private International law: between private
entities
 As a result of political choice in favour of
private the public and private are rapidly
intertwining both in national and
international legal systems
INTERNATIONAL LAW: WHAT ELSE ?
 International law only one regulator
/gentle civilizer
 Diplomacy
 Politics
 Economy
 Citizens
 International organisations
 All these form together the basis for states’
decision-making concerning international
Is it valid if it is violated ?
Like everyone acting within a legal
framework, states may decide to violate the
rules of international law: this does not
bring an end to a norm violated
However, if state practise emerges, the norm
may change: states seldomly claim their
wrondoings constituting a state practise
supported by sufficient opinio juris
INTERNATIONAL RULES AS A LEGAL
SYSTEM
-
-
-
International community (states, IOs)
recognise the existence of the system of
international law and its’ binding nature
States do not admit that they would have
violated IL(international law), but explain to
have acted in accordance
States believe that such a system exists
Example US invasion of Grenada: most
states condemned not only immoral but
illegal (also Iraqi invasion to Kuwait)
INTERNATIONAL RULES AS A LEGAL
SYSTEM
-
Vacuums in the system or its’ inefficiency
do not as such make it invalid
-
It’s sui generis nature does not nullify its’
legal nature
LEGALLY BINDING INTERNATIONAL LAW
a)
-
-
-
Foreign ministries, national and international
courts and IO’s apply it on a daily basis
legal departments giving legal advice on the
application of international law
use of legal concepts and language
states consider to be bound to act on a certain
manner and from time to time consider some
other state not to act in confirmity
International Court of Justice submits legal
judgments
LEGALLY BINDING INTERNATIONAL LAW
b) States do not claim to be above
international law nor that they would be
bound by it
- example: Iraqi invasion to Kuwait, Soviet
occupation of Estonia
- States do follow INTL because they
consider to be obliged legally, otherwise
there would not be any need to find kegal
reasoning for their acts
LEGALLY BINDING INTERNATIONAL LAW
c) INTL rules are followed systematically in state
practise
- violations tend to crowd the international
publicity rather than the routine everyday
practise, illusion of inefficiency although it is a
question of deviating from the normal – an
exception
- national legal systems have similar
inefficiencies – canot totally prevent crimes or
violations of law
- most of the rules of international are followed for
LEGALLY BINDING INTERNATIONAL LAW
-d) In all legal systems there is established a
system for solution of disputes concerning points
of law and facts
- also in INTL
- in this regard INTL is organised more loosely
- legal bodies for the purposes international
disputes: ICJ, international arbitration, war
crimes tribunals (Yugoslavia, Rwanda, ICC), WTO
- regional: ECHR, ECJ, ACHR, AfricanCHR
ENFORCEMENT OF INTL
-
-
-
-
IS IT law if not compulsory system of enforcement
?
example: Kuwait , rather peace enforcement than
formal enforcement of INTL law with compulsory
measures
the validity of INTL is related rather to how it has
been estalished and to how it functions than to
compulsion
Compulsion may be the reason to follow law but
not the reason for its validity as a law
The point: it is essential that the system within
which legal norms are established is commonly
accepted
ENFORCEMENT OF INTL
a)
-
-
UN Security Council
may take enforcement measures against a
state, if it threatens peace or have committed
an act of aggression or breach of the peace (UN
Charter, art. 39 and ch. VII)
precondition: a resolution for that purpose is
made by the UN security Council
Five permanent members (USA, Russia, China,
France, UK) veto right, earlier hindered
resolutions on the use of sanctions, now ”new
ENFORCEMENT OF INTL
May be:
- military action; Korea 1950, Iraq 1990/91,
Kosovo ?
- economic sanction; South-Africa 1977,
Serbia-Montenegro 1992
- diplomatic, political social measure;
Delimitation of air-routes for Libyan
airplanes after Lockerbie bomb 1992/93
ENFORCEMENT OF INTL
UN SC resolutions have been applied to various
situations:
- Iraqi invasio to Kuwait
- Dissolution wars of Jugoslavia
- Civil war in Somalia
- Libyan involvement to air-flight terrorism
ONLY IF: the issue is about breaching peace, threat to
peace or aggression
UN SC is not dealing with general violations of INTL:
only the most seariest situations
ENFORCEMENT OF INTL
b) Violation of legal rights
- example: a state A violates a trade
agreement with state B
- - B may have a right to end the agreement
- cutting off diplomatic relations
- delimiting economic assistance
- end other trade agreements
- proportionality
ENFORCEMENT OF INTL
Examples: UK cut off diplomatic relations to
Argentina after it occupied Falkland/Malvinas
Islands, USA freezed the assets of Iran placed in
US Banks during 1979/80 hostage crisis
- even international community or a larger group of
states may adhere to similar measures
- loosing economic rights may have even a deeper
impact than the use of force, since in a globalised
world economy states are extremely dependent
on each other
ENFORCEMENT OF INTL
c) Legal enforcement
- International Court of Justice (ICJ): a court of law of the UN
- A state cannot be compelled to become a party in a case
before the ICJ
- part of the States have recognised the compulsory
jurisdiction of the ICJ
- others decide case by case whether they agree to
become a party to the proceedings
- if they agree to ICJ jurisdiction its’ judgment is legally
binding
- ICJ does not have any enforcement measures of its own
ENFORCEMENT OF INTL
-
ICJ could (in theory) use enforcement through UN
SC, but this has never taken place with success
if UN SC would be used theenforcement is limited
to matters within the powers of the SC
possible only in a case that is already under
consideration before the ICJ
Lockerbie case 1992: the supremacy of the UN SC
ENFORCEMENT OF INTL
-
-
the use of international special courts have
increased (Iran-US claims tribunal, Bosnia,
Rwanda war crimes tribunals)
also domestic courts apply international
law in cases involving international
dimension
II SUBJECTS OF INTL
-
-
-
-
Not self-evident: who may be the subject of
international rights and duties
”Subjecthood”: procedural rights and
obligations; ability to make international claims
before int. judicial tribunals and the obligation
to answer to such claims
ability to make treaties, participate in
multinational events, accountability, immunity,
be part of INTL creation, etc.
The recognition or acceptance of states is
important: bilateral and multilateral effects
States
-
-
most important subjects
accepted statehood brings the capacity to
act internationally as a state
territory, sovereignty, permanent
population, government, independence
Other territorial entities
-
operating as an independent entity:Taiwan,
still formally part of China
Palestinian Autonomous Area
Autonomous components of existing
states: Åland, Quebec, Northern Ireland
International Organisations
-
General: UN
Regional: OAU, OAS, EU
Organisation within organisation: UNESCO
Economic: WTO, OECD
Maritime:IMO
Military: NATO
Migration: IOM
Two-party: UK-Ireland Decommissioning Body
Multi-party: Mekong River Commission
Individuals
-
-
originally no subjecthood on international level
development of body of HR law on international
level
development of personal criminal resposibility
on the international level
Setting up of ICC: nationals may be made subject
to the jurisdiction by a non-state entity
Universal jurisdiction over international crimes:
Pinochet -case
Other international subjects
miscellaneous groups: to some extent:
Sovereign Order of Malta
- international contracts between states and
private entities : tend to give some features
of international subjecthood to private
entities
-
III SOURCES OF INTERNATIONAL LAW
-
-
all legal systems inevitably must have
some criterias with which one is able to
recognise legal norms, the body of law:
how are the legally binding norms
established
what are the legally binding norms
National level: legislator, case law,
Supreme Courts, Common law; customary
law
Art. 38 of the ICJ
Classical list of souces of INTL
a) International Conventions
b) International Custom
c) General principles of law
d) Judicial decisions, writings of scholars (most
highly qualified), subsidiary
- not extensive list, no binding hierarchy of souces
but a descrition on what kinf of materials the ICJ
utilize in applying international law
-
SOURCES
Formal: the process through which legal rules
become binding, how binding obligations are
born
Material: the substance of legal obligations; they
tell what is the content of legally binding
obligations
- International conventions are the only means
through which states can intentionally create
INTL
SOURCES: Treaties
a) Treaties are based on the free will of the states
- States can be obliged by a Treaty only when it has
given a specific act of acceptance to take the
obligations inluded in the Treaty:
signature/ratification
- A Treaty is binding only with regard to the parties
of the Treaty
- Exception: Border Treaties; binding erga omnes
(ie. towards rest of the international community)
SOURCES: Treaties
b) When a state has given it acceptance:
-
Treaty is binding on the parties
-
Treaty does not bind other states, unless it
has become either entirely or partly widely
accepted through customary INTL
SOURCES: Treaties
c) If the Treaty is ment to codify already
existing customary INTL (eg. Vienna
Convention on Diplomatic Relations, 1961,
almost all states parties to it)
- Treaty has general applicability, since
based on customary INTL
SOURCES: Treaties
d) Multilateral Treaties may codify or even
further develop INTL
-
-
often the intention of the states parties is
that the Treaty would in future be binding
on all states
eg. Convention on the Law of the Sea
(adopted 1982): catalytic effect to INTL
SOURCES: Treaties
- parties are always obliged
- states not parties: obliged only with regard to those
Treaty provisions which are contained in the customary
INTL
- if state practise later on develops to the same direction
as the treaty indicates, the Treaty may emerge into
customary INTL: then also States not parties become
obliged by the entire Treaty; general applicability
- example: Convetion on the Law of the Sea:; crystallized the
principle on economic zone; today this provision is
binding as a rule of customary INTL (confirmed by the ICJ
in Tunisia vs. Libya case 1982)
SOURCES: Treaties
In order for a Treaty norm to become
generally obliging, it has to have:
-
general applicability
the intention of it must be to serve as a
basis for further state practise in future
states must consider it as legally binding
(opinio juris)
SOURCES: Custom
-
one of the cornerstones of INTL
-
legally binding norms which emerge from
the acts of states (state practise) and from
the customs of states
-
establishes general principles of law
SOURCES: Custom; elements
a)
State practise
-
the actual activites/passivity of states
statements in practical situations
general statements concerning legal
principles: eg. when accepting UN GA
resolutions
-
-
SOURCES: Custom; elements
b) Consistency/uniformity of State practise
- must be continuing and uniform (Lotus case)
- requirement of uniformity is not absolute: varies
according to substance;
- The more profound norm of INTL is in question, the
stricter the requirement of uniformity is
- positive obligation: more strict U –requirement
- negative obligation: less strict U –requirement
SOURCES: Custom; elements
c) Generality of State practise
-
common to a considerable number of
states
-
not necessarily common to all states
SOURCES: Custom; elements
d) The duration of State practise
-
differ: a line of activities of states
indicating state practise
-
even a short duration is not an obstacle for
the emergence of customary norm (the law
of outer space)
SOURCES: Custom; elements
e) Opinio juris
- states must recognise the general, uniform
and continuing state practise as legally
binding
- to the state practise must be attached with
opino juris indicating that the case is about
legally binding custom (Lotus case, North
Sea Continental Shelf case)
- Proof ?
SOURCES: Custom; elements; opinio
juris
How to verify its’ existence ?
-
certain way of behaviour by states is not
sufficient as such: needs a separate
verification; Nicaraqua –case para. 186 31
-
somewhat theoretical construction
Jus cogens (peremptory norm)
-
customary rules of fundamental nature: no derogation
accepted
always take priority over treaty obligations (Vienna
Convention, Art.64)
no general agreement on what rules have attained this
level:
prohibition of the use of force
equal sovereignty of states
prohibition of crimes against humanity
the right to self-determination
prohibition of genocide and slavery
freedom of the high seas
pacta sunt servanda (treaties are binding in law)
Sources
Recent developments:
- treaty law have become the main source of
INTL
- It is easier to deduce accurate legal rules
from treaty based INTL
- The number of international treaties have
increased rapidly (need for them have
increased): the areas not regulated by
international treaties narrow
Sources
If the same matter is regulated both by customary
INTL and treaty law, and the state is party to the
Treaty, the state is bound by both. If
contradiction arises in such a situation:
a) If the treaty has been enacted later than the
customary norm has been established, the
treaty prevails over the customary norm, unless
it has the nature of jus cogens
b) if customary norm has been established later
than the treaty, it prevails over treaty only
exceptionally
c) Art. 53 of the Vienna Convention: jus cogens
norm prevails always over treaty
Sources
Acts of states do not have constituting effect
establishing new customary rule even if
repeated often, if they are in violation of jus
cogens norm:
change is possible only if a new norm of jus
cogens arises, which modifies the content
of old jus cogens norm
IV RELATION BETWEEN INTL AND
MUNICIPAL LAW
INTL: regulates relations between sovereign
states (but remember other subjects of
INTL)
Municipal law: regulates relations between
the subjects of a sovereign state
Overlapping systems: INTL establishes rights
and duties obliging also individuals (HR’s,
war crimes)
RELATION BETWEEN INTL AND
MUNICIPAL LAW
Lack of enforcement system in INTL: enforced often
through national courts; national law has impact
on effectiveness of INTL and lawfulness if
international action
cases: Brazilian Loans, PCIJ 1929, p. 124. 107
Barcelona traction, ICJ 1970, para50. 108
INTL LAW of the Sea: has an impact on the evaluation
of the width of the jurisdiction of the state in
criminal matters
One can deduce from INTL rights to an individual, to
which one can resort before a national court
RELATION BETWEEN INTL AND
MUNICIPAL LAW: Monism
Both INTL and national law are included to the
domestic legal order
INTL have supremacy over national law in
case of a contradiction: INTL HR LAW
Separate incorporation not necessary for
domestic applicability
Monistic systems: eg. Netherlands, Estonia
RELATION BETWEEN INTL AND
MUNICIPAL LAW: Dualism
INTL and National: separate; if contradiction,
national law has supremacy
- INTL responsibility, even if acting in
conformity with national law
- Rights and duties do not automatically
transfer into other system; separate
incorporation into domestic system
needed
V INTERNATIONAL TREATIES
Vienna Convention on the law of treaties 1969:
codification, has the nature of customary INTL
What is a Treaty ? (VC art. 2)
- international agreement
- between states
- written form
- governed by international law
Case: Qatar v. Bahrain, ICJ 1994 (Jurisdiction- First
phase), para 25.) 57
INTERNATIONAL TREATIES: Will
confirmation
Full powers: either by providing proper
authetification or state
practise/circumstances establish
intention that the person acting had full
powers
Lack of powers: no legal effect, but can be
confirmed afterwards by a state
Consent to be bound: signature, ratification,
accession
INTERNATIONAL TREATIES: Entry into
force
After signing but before entry into force: Obligation
not to defeat the object and purpose of the Treaty
(VC Art. 18): may indicate state practise even
before entering into force
Provided by the treaty or otherwise agreed between
states
If no agreement or treaty provision: as soon as all
negotiating states have ratified (consent to be
bound) example: US letter of non-intention
66
No retroactivity: main rule, if not otherwise intended
INTERNATIONAL TREATIES: Third
states
If no consent: no obligation/right
If a treaty provision is/ becomes a rule of
customary INTL: binding on third states (VC
on state succession, 1978,art. 38)
State succession: Boundaries remain,
otherwise white board for a new state
71,72
VCS 1978 art.12: customary INTL rule 70
INTERNATIONAL TREATIES:
Reservations
Express statement: state does not accept
some provisions of the treaty
ICJ Advisory Opinion 1951, Reservations to the
Genocide Convention: reservation possible
if compatible with the object and purpose
of the Convention
74
ECHR, Belilos v. Switzerland 1988: reservation
that was too wide in scope was not valid 76
Legal effect: modifies treaty if not objected
(VC art. 21) 78 79 81 82
INTERNATIONAL TREATIES:
Interpretation
In good faith
In ordinary meaning of the terms of the treaty
In context
In the light of its purpose and objects
What is context: VC art 31
84 85
Contracting out from jus cogens ? 91
Obligations erga omnes: towards intl. community as
a whole (ICJ Barcelona traction case ) 93
INTERNATIONAL TREATIES: invalidity,
termination
Notification to other states parties
Invalid treaty has no legal force
Invalidity and termination must be in
accordance of the Treaty, if state has been
boubd by it
VI INTERNATIONAL ORGANISATIONS
Diplomacy was not enough – international
conferences to deal with multilateral
problems: ending wars (Peace of
Westphalia 1648, Congress of Wienna
1815)- regularity of the conferencesperiodisation; Balkans (Paris Conference
1856, Berlin gathering), Africa (Berlin
Conferences 1884-5)
Int. NGO’s: Red Cross 1863, ILA 1873
INTERNATIONAL ORGANISATIONS
Impact:
- state practise within organisations – INTL
- treaty interpretation
INTERNATIONAL ORGANISATIONS
Liability of member states:
- debts and delicts – if legal personality ,
then organisation
- if no separate legal personality, then
member states
- complex issue
Privileges and immunities
INTERNATIONAL ORGANISATIONS:
Universal
League of Nations 1919: Promotion of
international co-operation, peaceful
resolution of disputes, sovereignty and
independence of the member states,
sanctions
weakness: each member state concluded
whether a violation had taken place and
whether to resort sanctions
Failed to to take effective measures: formally
dissolved 1946
INTERNATIONAL ORGANISATIONS:
Universal
The United nations: San Fransisco
Conference 1945, so far success
GATT: 1947-8 Havana Conference, different
GATT rounds, Uruguay round 1986 led to the
establishment of the WTO in 1994, and GATT
continued until the end of 1995
INTERNATIONAL ORGANISATIONS:
Regional
WEU 1948- now integral part of EU as defence
component
NATO 1949
Warsaw Pact
Arab League 1944
ASEAN 1967
OAS 1948 – also collective security system
OAU 1963
EEC-EU, 1951-1957-1992
INTERNATIONAL ORGANISATIONS:
Regional; Europe
CoE 1949
OSCE 1975, from conference to organisation
1995
CIS- some of the former Soviet republics
INTERNATIONAL ORGANISATIONS: UN
a)
-
-
Security Council
maintaining int. peace and security
UN Charter ch. VII: SC powers to act on behalf of
all states
UN Charter Art. 39: IF SC concludes that there is
a threat to peace, breach of peace or an act of
aggression, it may resort to measures under
Art. 41 and 42
interim measures under Art.40 until decision
under Art. 39 has been made
INTERNATIONAL ORGANISATIONS: UN
What kind of activities may come under Art. 39 ?
- military action or the threat of it
- unstable internal situation in a state: SouthAfrica, Rhodesia, Liberia, Haiti, Rwanda
- state terrorism/support to terrorism (Libya
1992/93)
- No general set of rules binding SC: SC decides
- SC has primary responsibility to maintain
international peace and security
INTERNATIONAL ORGANISATIONS: UN
UN Charter ch VII: SC action possibilities
- recommendations
- provisional measures
- sanctions (art. 41): Binding on UN member states
no armed force; trade boycott (Haiti, not in force
anymore), arms trade embargo (Liberia, Rwanda),
flight restrictions(Libya),
cutting off economic and diplomatic relations, other
restricted measures
INTERNATIONAL ORGANISATIONS: UN
Peace enforcement, art. 42:
SC may take a military action, which is necessary to
maintain or restore international peace and
security, preceding violation of INTL by the target
of the operation is not a necessary requirement
Example: SC authorised NATO to take all necessary
action to implement Dayton agreement (Bosnia,
Kosovo was not inluded to the agreement)
INTERNATIONAL ORGANISATIONS: UN
SC has power to authorise states to act on its behalf:
- 1950 recommended all member states to provide military
assistance to South-Korea under the UN operation after
North-Korea had attacked; de facto a US led and
conducted operation
- 1966 authorised UK to keep up the oil embargo of
Rhodesia
- 1990 (over 20 resolutions) authorised the member states
to take all necessary action to restore the sovereignty of
Kuwait (29 states participated)
- 1993 authorised UN forces in former Yugoslavia to take all
necessary action to protect civilian population; 1995 the
task was delegated to NATO
- 1993 authorised the UN forces in Somalia to take all
necessary action to protect UN forces against attacks
INTERNATIONAL ORGANISATIONS: UN
UN General Assembly:
- Represents all states
- No powers to make legally binding decisions
- 1950 Uniting for peace resolution; If SC was due to a veto
unable to take care of its’ primary responsibility to
maintain peace and security, UN GA will take the issue
immediately under its consideration to give necessary
recommendations to member states for collective action;
however, use of force remains as a sole power of the SC
(presently does not have importance, used to get issues
under discussion before the GA
- 1956 UNEF peace keeping operation in Egypt after Suez
crisis; it was not a sanction, since Egypt gave its
permission for the operation, therefore SC authorisation
was not necessary
VII Peaceful settlement of disputes
UN Charter 2(3) Art.: obligation not to endanger
peace and security- obligation to resort to
peaceful settlement of disputes, if they endabger
peace and responsibility
- no general responsibility for dispute settlement;
if done- must be peaceful
- usually ICJ does not have compulsory jurisdiction
- provided that HR’s and UN SC resolutions are not
violated (Flight restrictions over Iraqi Kurd areas)
states have the right to use force in their internal
disputes
Peaceful settlement of disputes
-
dispute may be international even if the
parties are not states (eg. Bosnian
Moslems, Serbs and Croats)
Measures: negotianions, mediation, good
offices, fact-finding, settlement by the UN,
regional organisations, arbitration, ICJ,
other int. courts, Permanent Court of
Arbitration etc.
Peaceful settlement of disputes
International Court of Justice:
- legal disputes
- 4-5 cases /year, 15 judges elected by the UNGA
and SC: 1 judge from every permanent member of
the SC (no possibility to use veto in election); 10
judges are chosen from the candidates proposed
by the member states of the Permanent Court of
Arbitration; in practice judge from all continents
- the composition of the ICJ must reflect the main
forms of civilization of the world
Peaceful settlement of disputes
-
ICJ is a UN body
The statute of the ICJ is a part of the UN
Charter
only states may be parties to a case before
the ICJ
either compulsory or ad hoc jurisdiction
advisory opinions; UN or its special
organisation; are not legally binding
VIII INTERNATIONAL HUMAN RIGHTS
- Guaranteed in international human rights
treaties
– define minimum standards
– margin of appreciation(ECHR)
– international supervision mechanisms only add to
domestic one: domestic supervision primary
International supervision of HRs
•
•
•
•
•
•
•
•
ECHR
ICCPR
ICESCR
UN Convention on the rights of the child
UN Convention on the rights of women
UN Convention on the elimination of all forms of racial discrimination
UN and CoE conventions against torture
ILO Treaties
WHO IS ACCOUNTABLE ?
State and its authorities
Domestic courts in a key role: provisions
guaranteeing fair trial important
International HR bodies not a fourth instance:
they do not have powers to abrogate
domestic decisions
Supervision mechanisms
Individual complaint
Collective complaint (EU social charter)
Reporting
Hearing of NGOs
Fact finding missions
IX USE OF FORCE
UN Charter 2(4) Art.. : use or threat of force is
prohibited against
- territorial integrity
- political independence
- any other manner inconsistent with the
purposes of the UN
- all states have accepted this
- exception: UN Charter Art. 51 allows use of
force for self-defence
USE OF FORCE
Restrictive interpretation of Art. 51:
- self-defence acceptable (also in an area of
the aggressor state) if it does not lead to a
permamnent occupation or loosing of
territory
- provided that it does not endanger target
states independent decision-making
- and is not inconsistent with the purposes
of the UN
USE OF FORCE
also accepted:
-
rescuing citizens (Entebbe)
protection of HRs (no-fly zones in Iraq)
USE OF FORCE
Customary right to self-defence:
a) Counter measure against armed aggression
b) Eliminating imminent threat of armed
aggression (the bombing of Iraqi nuclear
installation in 1982 by Israel)
c) Counter aggression or threat against nationals,
property or rights guaranteed under INTL
d) non-armed aggression (economic, propaganda)
necessitating immediate counter-measures
USE OF FORCE
Restrictive interpretation of UN Charter Art.51:
also customary right to self-defence have
been limited
-
if so, only against armed aggression
not clear which one of the interpretations
is correct: state ptactise , which is
contraversary
USE OF FORCE: Humanitarian
intervention ?
Definition: state A may use forcible measures in the
area of state B, even if B resists
Preconditions:
a) Intervention have to be accepted by an
international organisation (UN or regional)
b) only in cases of gross violations of HRs
Inconsistent state practise (Iraq, Rwanda, Cambodia
1979
Problem: subjective element of the intervening
state; misuse easy KOSOVO ?
X Humanitarian law
Norms that seek during armed conflict to
-
protect persons who are not or are no
longer taking part in the hostilites
restrict the methods and means of warfare
War crimes: also grave breaches during
internal conflict
Geneva 1949 Conventions and additional
protocols 1977
Humanitarian law
Basic obligations:
- distinction between civilian population and
combatants
- prohibited to wound surrenderers or those
unable to take part to the fighting anymore
- distinction between civilian targets and
military targets
- only military objectives can be targeted
XI State responsibility
Responsibility for wrongful acts in all legal systems
State responsibility: preconditions for a legal state
responsibility for violating an obligation under
international law, and its conseguences (duty to
compensate)
- arises when a state has violated an obligation it
has vis-a-vis another state
- eg. violation of a treaty obligation, customary law,
legally binding int. decision, maltreatment of
nationals of another state, valid decision of an
int.organisation (UN SC)
State responsibility
Basic precondition: illegal act, for which a
state is accountable for
- example: UN SC resolution 687; Iraqi oil sold,
and the income is used to pay
compensation for damage caused by
illegal occupation of Kuwait by Iraq
How to analyse legal cases
1.
2.
3.
4.
Read quickly the case as a whole
On the second reading identify the facts
that are relevant for applying the law into
the case
Structure your analysis issue by issue
Lastly read the case once again and
compare your analysis to the facts so you
dont miss anything and that you have
understood the facts correctly
XII THEORIES OF INTERNATIONAL LAW
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idealism – realism: Kant-Carl Schmitt/Hans Morgenthau
empirism/positivism: explaining social phenomena by
using empirical method
essentialism/normativism: revealing the essence of
different social entities, positivism
Marxism: revolution
structuralism: revealing structural antagonisms
post-modernism: deconstructing traditional dominating
structures
Critical legal studies (CLS): to explore the manner in
which legal doctrine and legal education and the
practices of legal institutions work to buttress and
support a pervaisive system of oppressive, inegalitarian
relations to develop radical alternatives:….