Introduction to Public International Law. October 2010

Transcription

1 Introduction to Public International Law October 2010

2 Sovereignty There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon. ~ Lassa Oppenheim "of all the rights that can belong to a nation, sovereignty is doubtless the most precious ~ Vattel Exclusivity; control (de jure and de facto); supremacy; recognition (external, internal, legitimacy)?

3 Non-intervention Sovereignty UN Charter, Art. 2(1): The [UN] is based on the principle of the sovereign equality of all its Members. Non-intervention U.N. Charter, Art. 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. UN Charter, Art. 2(7): Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state.

4 What is a state? (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states Declarative theory independent of recognition Constitutive theory recognized by other sovereigns Implications of statehood for protection...

5 Protection of civilians The primary responsibility of the protection of civilians lies with the government. Governments should be guided by their overriding obligation to protect each and every civilian within their jurisdiction, regardless of their gender, ethnicity, religion or political conviction. Guiding Principles on Humanitarian Assistance (A/RES/46/182 December 19, 1991)

6 Sources of International Law Article 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.

7 Treaties Bilateral or multilateral (written) agreement b/t States [I]nternational conventions, whether general or particular, establishing rules expressly recognized by the contracting States (ICJ Statute, Art. 38) Signature at adoption (refrain from acts which defeat object & purpose good faith) Consent to be bound Instrument of ratification Instrument of accession Same legal affect becomes a party to the treaty

8 VCLT (1969) Every treaty in force is binding upon the parties to it and must be performed in good faith. Art. 26 (pacta sunt servanda) A party may not invoke the provisions of its internal law justification for its failure to perform a treaty. Art. 27 Reservation? ICJ - Reservations to the Convention on the Prevention of Genocide The object and purpose of the Convention thus limits both freedom of making reservations and that of objecting to them.... Compatibility with object and purpose of the Convention is the controlling principle. Arts of VCLT: Reservation permissible so long as: --not prohibited by treaty --not incompatible w/ object and purpose of treaty

9 Art. 31, 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 connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection 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.

10 Custom ICJ Statute, Art. 38(1)(b): [A] general practice accepted as law ICJ, Military and Paramilitary Activities in and against Nicaragua, 1986: [F]or 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 necessitatis.

11 ICRC Customary IHL Study Jean-Marie Henckaerts, ICRC: There are ( ) two serious impediments to the application of these treaties in current armed conflicts which explain why a study on customary international humanitarian law is necessary and useful. First, treaties apply only to the States that have ratified them. ( ) Second, humanitarian treaty law does not regulate in sufficient detail a large proportion of today s armed conflicts, that is noninternational armed conflicts, because these conflicts are subject to far fewer treaty rules than are international conflicts. Identified 161 rules applicable in armed conflict 17 only in IAC 6 only in NIAC 8 arguably in NIAC (in addition to in IAC)

12 ICRC Customary IHL Study, Cont d Initial U.S. criticisms: 1. [F]or many rules proffered as rising to the level of customary international law, the State practice cited is insufficiently dense to meet the extensive and virtually uniform standard generally required to demonstrate the existence of a customary rule. 2. The initial U.S. review of the State practice volumes suggests that the Study places too much emphasis on written materials, such as military manuals and other guidelines published by States, as opposed to actual operational practice by States during armed conflict. 3. [T]he Study gives undue weight to statements by non-governmental organizations and the ICRC itself ( ). 4. [A]lthough the Study acknowledges in principle the significance of negative practice, especially among those States that remain non-parties to relevant treaties, that practice is in important instances given inadequate weight. 5. Finally, the Study often fails to pay due regard to the practice of specially affected States.

13 General Principles Malcolm N. Shaw, International Law (5 th Edition), 2003: There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of the general principles of law recognised by civilised nations was inserted into article 38 as a source of law, to close the gap that might be uncovered in international law and solve this problem which is known legally as non liquet.

14 Writings and judicial decisions Subsidiary means Quality, relevance of judicial decisions, then writings (of learned publicists)

15 Hierarchy? Question of hierarchy: Presumed hierarchy? For practical purpose? Peremptory norms/jus cogens General principles gap filling? Desuetude Lex posterior derogat priori But Lex posterior generalis non derogat priori speciali Lex specialis derogat legi generali UN Charter, Article 103 In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

16 Peremptory norm Originally based in natural law theory (morality? certain basic principles) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is 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. VCLT, Art. 53 Examples? Prohibition of the use force, genocide, slavery, racial discrimination, violation of right to self-determination

17 1951 Refugee Convention Refugee definition As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Art. 1(A)(2) Non-refoulement, Article 33 No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

18 Definition of IDPs IDPs are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border. UN Guiding Principles on Internal Displacement Introduction, para. 2 Two key elements: 1) The coercive or otherwise involuntary character of movement. 2) The fact that such movement takes place within national borders.

19 International Disaster Response Law? UN Charter Art. 2(1): The [UN] is based on the principle of the sovereign equality of all its Members. Art. 2(7): Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state.

20 Cooperation [S]tates have the duty to cooperate with one another, irrespective of the differences in their political, economic, and social systems, in the various spheres of international relations, in order to maintain international and security and to promote international economic stability and progress, the general welfare of nations and international cooperation free from discrimination based on such differences... UN GA Res (1970) To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and To be a centre for harmonizing the actions of nations in the attainment of these common ends. UN Charter, Art. 1

21 IHRL Human rights are founded on respect for the dignity and worth of each person. International human rights law is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments. Human rights law therefore places an obligation on states to act in a particular way and prohibits states from engaging in specific activities. An important function of human rights law is to enable individuals and groups to take positive action to redress violations against their internationally recognized rights. IASC document, 2003 International Bill of Human Rights UDHR ICCPR and ICESCR Optional Protocol to the ICCPR,

22 IHRL All human beings are born free and equal in dignity and rights UDHR Rights derived from the inherent dignity of the human person ICCPR Rights which are fundamental and essential for human-well being Henkin Positive v. natural law Human rights discourse is dynamic, with a margin of appreciation Negative v. positive right

23 Derogation (ICCPR, Art. 4) 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

24 Non-derogable Rights Article 4, ICCPR (1966) Right to life Prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent Prohibition of slavery, slave-trade and servitude Prohibition of imprisonment because of inability to fulfill a contractual obligation The principle of legality in the field of criminal law The recognition of everyone as a person before the law Freedom of thought, conscience and religion

25 Lex specialis ICJ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) The Court observes that the protection of the [ICCPR] does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the [ICCPR], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. (para. 25)