PUBLIC INTERNATIONAL LAW

Public International Law (PIL)

• Definition: “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical”

(Akehurst, citing Restatement [Third] by the American Law Institute of Foreign Relations Law of the United States)

“Subjects” of International Law• Subjects: those that enjoy international legal

personality and being capable of possessing international rights and duties, including the right to bring international claims.

• Primarily: STATES• Secondarily: International Organizations (e.g. UN,

WTO), individuals (protected persons of IHL, insurgents and national liberation movements, minorities), juridical persons (multinational companies), and NGOs (e.g. ICRC, Greenpeace, Amnesty Int’l.), I.

• Case: -Reparation for Injuries Case (ICJ Advisory Opinion 1949)

States, still primarily the subjects of PIL

• International law is still predominantly made and implemented by states;

• International Organizations are still dependent to a large extent on the willingness of states to support them;

• Only states can be members of the UN;• Only states are entitled to call upon the UN

Security Council in case of threat to peace and security;

• Only states may appear contentious proceedings before the ICJ;

• Only states can present a claim on behalf of a national who has been injured by another state, if there is no treaty to the contrary;

• An individual has no “individual rights” under customary international law and is dependent on the political discretion of the home state

Basic Characteristics of PIL

• PIL is a “horizontal legal system”;• PIL lacks a supreme authority;• Self-help, unlike in domestic sphere applying

domestic law, is normally the means by which states enforce their rights: e. g. retorsion (a lawful act designed to injure the wrongdoing of another state), reprisal (act that is normally illegal but rendered legal by a prior illegal act committed by another state)

SOURCES (Formal or Legal) OF PIL

• Art. 38 (1), Statute of ICJ:Primary:

(a) international conventions(b) international custom(c) general principles of law

Subsidiary: (d) judicial decisions and teachings of

most highly qualified publicists

International Conventions/Treaties

• Whether general or particular and establishing rules expressly recognized by the contesting States;

• The term “convention” includes (and actually means) “treaty”

• Other terms: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation and provision.

• “Law-making treaties” vs. “contract treaties”

Custom

• As evidence of a general practice accepted as law;

• Two elements:

(a) Objective Element [general practice](b) Subjective Element [accepted as law

(opinio juris)]

Cases on Custom as Sources of PIL:-Nicaragua vs. USA, ICJ Report (1986)-North Sea Continental Shelf Cases (Germany vs. Denmark &

Germany vs. Netherlands, ICJ Report, 1969)-Continental Shelf Case (Libya vs. Malta, ICJ Report, 1985)-Asylum Case (Columbia vs. Peru, ICJ Report, 1950)-Anglo Norwegian Fisheries Case (UK vs. Norway, ICJ Report,

1951)-Fisheries Jurisdiction Case (UK vs. Iceland, ICJ Report, 1973)-Legality of the Threat or Use of Nuclear Weapons Case (ICJ

Advisory Opinion, 1996)-Lotus Case (France vs. Turkey, PCIJ Series A No. 1018, 1927)

General Principles of Law• Recognized by civilized (peace-loving) nations;• Aimed at providing solutions to controversies where

treaty law or customary law provides no guidance;• “Law” refers to both “international law” and

“municipal law” (common municipal law)• Examples: estoppel, good faith, exhaustion of local

remedies, prescription, etc.• See: -South-West Africa Case, (2nd Phase, ICJ Report,

1966;-Barcelona Traction Case (Belgium vs. Spain, 2nd Phase, ICJ Report, 1970)

Judicial Decisions and Publicists

• Subsidiary means only• Subject to Article 59 of the Statute of the ICJ (the

decision of the Court has no binding force except between the parties and in respect of that particular case); in other words, there is no doctrine of “stare decisis” in ICJ decisions;

• ICJ decisions are independent of judicial decisions of other newly created tribunals such as the ICC, etc. for lack of formal relationship between these tribunals.

SOURCES (Formal or Legal) OF PIL

• Art. 38 (1), Statute of ICJ:Primary:

(a) international conventions(b) international custom(c) general principles of law

Subsidiary: (d) judicial decisions and teachings of

most highly qualified publicists

Other Possible Sources of PIL:

• Acts of International Organizations (e.g. UN and its Organs like GE, IMF, ICAA)

• Soft Law (guidelines of conduct which are neither strictly binding norms of law nor completely irrelevant political maxims)

• Equity (Justice)See: -The River Meuse Case (Netherlands vs. Belgium, PCIJ Reports, 1937)-”Ex aequo et bono” Art. 38 (2), ICJ Statute

Hierarchy of the Sources of PIL• In the travaux preparatoires (preparatory work)

of Art. 38, it was suggested that the sources as listed should indicate hierarchy of sources but it was not carried out. There was only the agreement to categorize these sources as either “primary” (3) or “subsidiary” (2)

• Hence, except for jus cogens (peremptory norms of general international law), one source is not to be treated as always superior to the other. The sources of international law are not therefore arranged in a strict hierarchical order.

Guidelines in determining which source of PIL prevails over the other:• Jus Cogens norms always prevail (see: Art. 53 of

the Convention on the Law of Treaties, 1969)• Lex posterior derogat priori• Lex posterior generalis non derogat priori speciali• Lex specialis derogat legi generali• Consider “Desuetude” • Bernhardt (1992): “If there is a clear conflict,

treaties prevail over custom and custom prevails over general principles and the subsidiary sources”

Jus Cogens• Art. 53, Convention on the Law of Treaties (Vienna, 1969):

A treaty is void if it conflicts with a peremptory norm of general international law, “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

• Examples: prohibition on the use of force, of genocide, slavery, gross violation of the right of people to self-determination, racial discrimination, and torture.

• Erga Omnes – obligations of a state to the international community (ex. Not to commit/fail to punish International crimes; not to violate people’s right to self-determination)

International Law and Municipal Law

• Which law prevails in case of conflict?-Theories: Dualism & Monism

• How do rules of international law take effect in domestic legal system?

- Theories: Incorporation & Transformation• What is the status of PIL in national legal systems?

-UK Practice (on treaties and customary IL)-US Practice (on treaties and customary IL)-Dutch Practice (on treaties and decisions of int’l. courts-Philippine Practice (on treaties and GAPIL)

States and Governments

• Elements of “State”: 1. permanent population2. defined territory3. government4. capacity to enter into relations with

other States (Art. 1, 1933 Montevideo Convention on the Rights and Duties of States)

Territory• Island of Palmas Case (Netherlands vs. US,

Arbitrator Max Huber of PCIJ, 1928) on “Territorial Sovereignty”;

• See again North Sea Continental Shelf Cases on whether definition of borders is a requirement;

• Extent of and jurisdiction over Territory: 1. Modes of Acquiring Territory2. Law of the Sea (1982 UNCLOS)3. Airspace

4. Criminal Jurisdiction, etc.; Extradition

Government

-Effective Control (sovereignty, not legitimacy), required; mere existence of government is not sufficient;

-Kinds of control: Internal and External-The case of Palestine (“State of Palestine” as

declared in 1988 by PLO)-However, in case of temporary deprivation of

effective control, the state does not cease to exist.

Capacity to enter into relations with other states

• Article 3, Montevideo Convention: The political existence of the State is independent of recognition by the other States. Even before recognition, the State has the right to defend its integrity and independence….

• “Limited Capacity” to enter into international relations does not prevent the existence of a State, like in the cases of “Protectorates”, “Trusteeships” and “Associated States”.

Recognition of State and Government

-Recognition will have legal effects in both international law and domestic law;-“Recognition of State” must be distinguished from “Recognition of Government”;-Recognition of State is suggested to be an additional requisite for statehood along with Sufficient Degree of Civilization;

Recognition of State

-Theories on Legal Effects of Recognition of State:

(1) Constitutive (2) Declaratory

-Article 3 of Montevideo Convention acknowledges “Declaratory Theory”

Recognition of Government

-Doctrines in Recognition of Government: 1. Tobar or Wilson Doctrine2. Stimson Doctrine3. Estrada Doctrine

- De jure Recognition vs. De facto Recognition;

Traditional Effects of Recognition- But, the European Community stipulated on

certain “common guidelines” on recognition of governments.

Jurisdiction• Forms: over Persons, Property, or Events/Acts

Case: -Nottebohm Case (Liechtenstein vs. Guatemala, ICJ,1955) on “Nationality Theory”

• Criminal Jurisdiction of national courts-Territorial Principle (see: SS Lotus Case)-Nationality Principle-Protective Principle-Universality PrincipleCase: -Eichmann Case (Attorney General of

Government of Israel vs. Eichmann (1961)• Extradition and Asylum

Immunity from Jurisdiction• Sovereign or State Immunity

-Doctrine of Qualified Immunity-The Act of State Doctrine

• Diplomatic Immunity-Immunity from Jurisdiction of courts-Other privileges and immunities

• Consular Immunity• Immunities of International Organizations• Waiver of Immunity

Treaties• Read: 1969 Vienna Convention on the Law of Treaties

(VCLT) [took effect on Jan. 27, 1980]• VCLT applies only to treaties after entry into force

(Article 4)• The travaux preparatoires was carried out by the

International Law Commission (ILC), so its commentary is one of the best sources of interpretation of the VCLT

• A treaty per VCLT is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.”

Conclusion/Entry Into Force of Treaties

A. Adoption of the Text of a Treaty: Article 9:

1. takes place by the consent of all the States, or

2. in case of treaty at an international conference, it takes place by the vote of 2/3 of the States present and voting,

unless by the same majority they shall decide to apply a different rule.

B. Consent to be bound: Article 11:

“Consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

-Ratification occurs only when instruments of ratification are exchanged between the contracting states or are deposited with the depositary. (Arts. 2 (1)(b) and 16.)

C. Entry Into Force-As a rule: as soon as all negotiating states have

expressed their consent to be bound by it, unless otherwise stipulated.

- Article 18: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

D. Reservation

-Article (2)(1)(d): defines reservation as “a unilateral statement….. made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State.”-Allowed only when the reservation is accepted by all the states which had signed (not necessarily ratified) or adhered to the treaty.

Case: Reservations to the Genocide Convention Case (ICJ Advisory Opinion, 1951)

E. Registration:

Article 102 (1) of the UN Charter: “every treaty entered into by any Member of the UN after the Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.”

Effect of Non-registration: Art. 102 (2), UN Charter

Municipal Law and Competence to Conclude Treaties

Article 46, VCLT:

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Authorized Representative of the State

Article 7, VCLT:

1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:

(a) he produces appropriate full powers; or(b) it appears from the practice of the States

concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.

2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;

(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

Defective Treaties• Head of State disregards constitutional requirement

for ratification (theory) vs. Art. 46• Unauthorized representative• Ultra Vires (Art. 47), when restriction had been made

known the the other party• Error (Art. 48)• Fraud (Art. 49)• Corruption of Representative (Art. 50)• Coercion of Representative (Art. 51)• Coercion by the threat or use of force (Art. 52)• Contravenes Jus Cogens (Art. 53)

Termination of Treaties• Pacta Sunt Servanda (Art. 26)• Grounds for Termination, Denunciation, Withdrawal, or

Suspension: (1) Application of the Treaty (Art. 42)(2) Application of the VCLT (Art. 42)

(3) Consent of all the parties, e.g. “Desuetude” (Art. 54)

(4) Discharge through Material Breach (Art. 60)(5) Impossibility of Performance (Art. 61)(6) Rebus Sic Stantibus (Art. 62)(7) Emergence of new Jus Cogens (Art. 64)(8) Outbreak of War (for bilateral treaties)

State Succession vs. Government Succession

• In State succession, all political laws are abrogated unless retained by affirmative act of the new sovereign while non-political laws continue;

• The successor State inherits all the rights, but not the obligations of predecessor State;

• The successor Government inherits all the rights of the predecessor Government, but not necessarily the obligations.

The Law of the Sea

• 1982 UNCLOS• Baseline (Low-water mark Method vs. Straight

Baseline Method)• Territorial Sea vs. Contiguous Zone vs.

Exclusive Economic Zone

State Responsibility

• “Internationally wrongful act”Draft Article 3 of the ILC: (a) action or

omission attributable to the State under International Law; (b) breach of international obligation of State.

Scope of Liability: (1) liable for reparation or compensation, and (2) may be the object of lawful countermeasures by the victim (e.g. reprisals or retortion)

• “Imputability Doctrine” (Principle of Attribution)

A State is liable only for its own acts and omissions, and in this context, the State is identified with its governmental organs and apparatus, not with the population (nor with private [vs. ultra vires] acts of government agents).

Cf: ILC Draft Articles on State Responsibility Case: Youmans Claim (U.S. vs. Mexico, General

Claims Commission, 1926)

When State becomes liable for Acts of Private Individuals:

1. Encouraging individuals to attack foreigners2. Failing to take reasonable care (due diligence) to protect

foreigners3. Obvious failure to punish individuals4. Failure to provide injured foreigner opportunity of

obtaining compensation5. Obtaining some benefit from the individual’s act6. Express Ratification of the individual’s act.

Case: Tehran Hostages Case (United States vs. Iran, ICJ 1980)

• Minimum International Standard Doctrine:

While it is true that when a person resides in a foreign country, he is deemed to accept the laws and customs of that country, such that his national state cannot base a claim on the fact that he would have been better treated in his home country, he may however make such a claim if the foreign country’s laws or behavior fall below the minimum international standard.

Preliminary objections: 1. Non-compliance with rules concerning nationality of claims. [see: Nottebohm and Barcelona Traction cases];2. Failure to exhaust local remedies (ILC Draft Article 22) [see: Interhandel Case (Switzerland vs. U.S., ICJ Report, 1959)] 3. Waiver by the State (vs. “Calvo Clause”)4. Unreasonable Delay and Improper Behaviour of injured alien

International Wars, Civil Wars & Right to Self-Determination: Jus Ad Bellum • Jus Ad Bellum:

Rules Governing the Resort to Armed Conflict (Lawful War).

• Jus In Bello: Rules Governing the Actual

Conduct of Armed Conflict (Lawful Acts in times of War). [International Humanitarian Law (IHL)]

Jus Ad Bellum

• Rules on “THREAT OR USE OF FORCE ”:

-Prohibited by UN Charter [Art. 2(4)]-Cases: -Corfu Channel Case (U.K. vs.

Albania, ICJ Report, 1949)-Nicaragua vs. U.S., supra.-Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ 1996)

Jus Ad Bellum• Rules on “SELF-DEFENSE”:

-InherentCase: Caroline case

-Recognized by Art. 51 of the UN Charter-Preventive/Anticipatory Self-Defense,

allowed?Case: Nicaragua vs. U.S., supra.

-Self-defense and Claims to Territory?-1970 Gen. Assembly Friendly Relations Declaration Case: Falkland Islands Case

-Self-defense against attacks on ships and aircraft?

Case: Corfu Channel Case-Armed Protection of nationals abroad?-Armed Reprisals?-Collective Self-Defense?

Means of Waging War and Criminal Responsibility: Jus In Bello

International Humanitarian Law (IHL) governs the laws of armed conflict or law of war. It primarily seeks to protect civilian population and objects. It covers international or non-international armed conflict, but not mere internal disturbances.

E.g. The 1949 Geneva Conventions and Additional Protocols prohibit the “attack on civilian population or object as such” during armed conflict

• International Criminal Court (ICC), governed by the Rome Statute (July 1, 2002) has jurisdiction over the following crimes:

1. Genocide 2. Crimes Against Humanity 3. War Crimes 4. Crime of Aggression

United Nations (UN)• Statute of the International Court of Justice• Jurisdiction:

-Contentious Cases and Advisory Opinions involving interpretation of treaties, any question of international law, breaches of international law

-Only States, including non-members of the UN can be parties

-Jurisdiction is based on consent [Optional Jurisdiction Clause]

-No “stare decisis” in ICJ Decisions