Public International Law

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					Public International Law
  law that governs relationships
    between, or among, nation-
International Law Historically
        and Presently
• Law that applies to conduct of nation-
  states and of international organizations
• Law that applies to relationships between
  nation-states and international
• Law that applies to some relationships
  between nation-states or international
  organizations and persons – see
  Restatement (Third) of Foreign Relations
  Law of the United States ' 101 (1987)
  The Nature of
International Law
Supremacy of International
• Intl. Law supersedes national law
Supremacy of International
• Internationally, national law never
  supersedes international law
• Domestically, national law may take
  precedence over international law
Enforcement and Compliance
• When international law is enforced on
  national level, it follows the same
  principles as domestic law
• But International courts do not have
  jurisdictions over national/domestic
  affairs, cannot enforce without
History of International Law
• Hugo Grotius (1583-1645), “De Jure
  Belli Ac Pacis” (1625) – systematic
  overview of the international law of
  war and peace
• Emmerich de Vattel (1714-1767), The
  law of Nations (1758) – practical and
  cited guide to international law
 History of International Law
• Positivism – Richard Zaouch (1590-1660)
• Actual state practices as a source of
  international law – law emerges as a
  consent of states cf. social contract)
       Sources of Public
       International Law
• Article 38(1) of the Statute of the
  International Court of Justice (UN)
• Restatement (Third) of § 102(2)
• International conventions,
  agreements, treaties
• International custom – customary
  international law
• General principles of law
• Judicial decisions (international and
  national) and the teachings of
  qualified publicists
      Article 38 (1) of ICJ
• A rule cannot be deemed international
  law unless it is:
• International convention or treaty
• International custom or
• General principle of law
• But do they have the same hierarchical
       Source: Treaties

•  depends on whether U.S. is a
  party and whether multilateral
  or bilateral
• List of treaties US is a party to
  – “Treaties in Force in 2007”
     Source: Treaties
• List of treaties US is not a
  party to
  H/Summary.asp (more
  research is necessary)
      International Treaties
•   Bilateral – a treaty involving 2 parties
     International Treaties
• Multilateral – a treaty involving
  many parties
         International Treaties
•   "This is to inform you, in connection
    with the Rome Statute of the
    International Criminal Court adopted on
    July 17, 1998, that the United States
    does not intend to become a party to the
    treaty. Accordingly, the United States
    has no legal obligations arising from its
    signature on December 31, 2000. The
    United States requests that its intention
    not to become a party, as expressed in
    this letter, be reflected in the
    depositary's status lists relating to this
       Source: Customary
        International Law
• evidence of state practice in:
• records of a state’s foreign relations and
  diplomatic practices (as set forth in
  official statements, diplomatic
• state’s domestic court decisions
• state’s internal legislation concerning its
  international obligations
• resolutions, declarations & legislative
  acts of intergovernmental organizations
           Opinio Juris
• It’s not enough for a practice to be
  widely followed It must come from
• sense of obligation
• followed by significant number of
  states and not rejected by significant
• A shared conviction that the rule is
• Once practice becomes the law, it is
  obligatory to all states that have not
  objected to it
  International Customary
Law and Newly Independent
• Are new states bound by international
  customary law in force, since they did
  not have a chance to object to it?
• Yes, according to Restatement of
    General principles of
international law recognized
     by civilized nations
• Historically more important - now,
  modern international law relies less
  upon general principles than on
  conventional and customary sources
     General principles of
 international law recognized
      by civilized nations
• The lines blur between custom and
  general principles: often, general
  principles will establish norms that
  then become custom
• look to decisions of international
  tribunals for a determination of
  what are “general principles”
     Secondary sources on
       International Law
• judicial decisions
• teachings of publicists: recognized
  authorities on international public law
• Both serve as proof of existence of a
  rule of international law
International Law, States,
     and International
   States: When is a State a
     State Internationally?
• Recognition of new state
• Old: defined territory, permanent
  population, effective government,
  capacity to enter into relations with others
• Now: degree of governmental control may
  be weak in the beginning, if consentual
  change of government
• Also additional conditions
 Ex. of New Recognition of
States: Dissolution of USSR
    Ex. of New Recognition of
   States: Dissolution of USSR
• New guidelines:
 Recognition in US practice
• Stems from presidential power to
  “receive Ambassadors and other
  public ministers”
• Exclusively an executive branch
  prerogative (not banks, or companies)
• Recognized states have a right to:
• Bring a law suit in US courts
• Claim sovereign immunity in US
  courts and receive diplomatic
International Organizations:
• Institutions established by treaty
• Composed by states and/or
  international organizations
• Regulated by international law
• Have legal rights as organization
International Organizations:
        Legal Issues
• Membership criteria
• Voting issues
• Budgetary issues
• October 24, 1945 – multilateral treaty
  and charter which is UN constitution
• Initially 54, now @ 200 ind. states
• Universal organization (in scope and
• Responsibilities:
• Debate over intervention in internal
  affairs of member-states: prohibited
  unless authorized by Security Council
• UN charter has supremacy over all
  other state’s international obligations
• Voting procedures: SC: unanimous,
  GA: 2/3 for important decisions, >50%
  for all others
• Very few UN resolutions adopted by GA
  are binding (decisions on budgetary
  matters), all others are
• UN resolutions adopted by SC are
  biding for all if all SC members agree
  there is a threat to peace or act of
  aggression: UN SC resolution to
  impose sanctions on Iraq in 1990
    Regional International
• Same as Intergovernmental
  organizations, except their mandate is
  to deal with regional problems (general
  or specific)
• Council of Europe, NATO, OAS, African
  Union, ASEAN
• Issues of membership
Supranational organizations
• Unlike other intergovernmental
  organizations – has power to bind its
  members by its decisions
 International Organizations
• Third type of subject of
  International law
   Territorial Sovereignty and
Methods Used in Settling Disputes
         between States
 •   Priority given to peaceful means:
 •   Solution by negotiation
 •   Enquiry
 •   Mediation
 •   Conciliation
 •   Arbitration and adjudication
 •   Judicial settlement
 Peaceful Non-Judicial Means
    of Conflict Settlement
• Negotiation: through diplomatic
  correspondence or face-to-face negotiations
• US and Japan trade policy
• Inquiry: designation of impartial group to do
  fact-finding mission, unambiguous finding
  may put an end to disputes over facts
  Conciliation: more formal, parties are not
  obligated to accept recommendations of
  third, formal party, but existence of report
  makes more difficult to disregard it
Peaceful Quasi-Judicial Means
    of Conflict Resolution
• Arbitration and Adjudication: binding to
  parties involved, not subject to appeal,
  ruling may be challenged in national court,
  but only in very few special circumstances
• Deference: Arbitration is ad hoc panel,
  agreed upon by parties
• Adjudication: permanent court with fixed
  composition and preexisting rules of
  procedure and jurisdictional standards
  Special Case: International
   arbitration and individual
• Arbitration between the state and the
  individual (corporation)
  Special Case: International
   arbitration and individual
• International Chamber of
  Commerce (Paris)
• International Center for Settlements
  of Investment Disputes
Iran-US Claims Tribunal
Judicial Methods of Peaceful
    Conflict Resolutions
• Rulings of international courts
• Relatively new phenomenon
• Central American Court of Justice
• International Court of Justice
• International Tribunal for the Law of
  the Sea
  Judicial Methods of Peaceful
      Conflict Resolutions
• Ad hoc international crime tribunals
• International criminal curt
• Court of Justice of the European
• European Court of Human Rights
• Inter-American Court of Human Rights
• African Court of Human and People’s
Jurisdiction and Immunities
     from Jurisdiction
• Part of UN
• All UN members are ipso facto
  members of ICJ
• 15 judges from 15 different states
• Elected by UN GA and SC with
  absolute majorities in both
• Contentious jurisdiction and
  advisory jurisdiction
     Contentious jurisdiction
• Only to disputes between states which have
  accepted court’s jurisdiction (on ad hoc,
  through treaty provision, or unilaterally)
   US and ICJ jurisdiction
• US nominally accepts ICJ jurisdiction
  over its actions and actions of its
  nationals but with very serious
• Connally Amendment (Texas Senator)
• US excludes from jurisdiction of ICJ
  disputes over matters in domestic
  jurisdiction of US as determined by US
• Self-judging rule: US and not ICJ
  decides what is a domestic and what is
  in international dispute
   US and ICJ jurisdiction
• 1985: declaration of US termination of
  acceptance of ICJ jurisdiction
    US, ICJ and National
   Security Considerations
• US claims that matters related to national
  security and self-defense must be
  excluded from ICJ jurisdiction (hence its
  decision to withdraw after US-Nicaragua
• Problem: when is a matter a security
Other Important Courts and
    Their Jurisdictions
• Ad Hoc International Criminal Tribunals
• ICTY (Hague) and ICTR (Arusha, Tanzania)
  Other Important Courts and
      Their Jurisdictions
• 2000 Treaty of Rome, ICC created in 2002
• 100 states signed and agreed that ICC will
  have jurisdiction to prosecute their
  nationals suspected in genocide, crimes
  against humanity, war crimes, and
 Other Important Courts and
     Their Jurisdictions
• 2005: UN SC referred Sudan to ICC for
• US withdrew in 2002
Other Important Courts and Their
Jurisdictions: European Court of
          Human Rights
• Established in 1959
• Now all members of Council of
  Europe are parties to it (Russia too)
• Constitutional Court of Europe
International Law and
Specific International
International Law and
    Human Rights
International Human Rights Law
• Two applicable laws
1. International law of human rights:
  protects regardless of nationality
2. Law on responsibilities of states for
  injuries to aliens: protects individuals
  against violation of their rights only
  when their nationality is not that of
  offending state
• If stateless or national of offending
  state, individual has protection only of
  international law of human rights
    International Law of Human
          Rights: History
• doctrine of humanitarian intervention
  (DHI) – Grotius

• Peace treaties after WWI – formal
  protection of national, religious, linguistic
  minorities under League of Nations
• International Labor Organization –
  international standards for protetion of
International Law of Human
      Rights: History
• UN charter (art. 55) – protection of
  individuals for their intrinsic value
• UN member obligations: promote
  universal respect and observance of
  human rights for all without distinction
  as to race, gender, religion, or language
• UN members to take joint and separate
  action to guarantee these rights
International Law of Human
      Rights: History
• Universal Declaration of Human Rights
  (GA Res. 217A, 1948): non-binding, but
  acquired status of customary
  international law (esp. freedom from
  torture, slavery, arbitrary detention,
• But also positive rights to work,
  education, health care (not specific
International Law of Human
      Rights: History
• 1966: UN International covenant on
  Civil and Political Rights: rights of self-
  determination and other, much more
  precisely delineated rights (required
  ratification) US ratified only in 1992
• 1966: UN International Covenant on
  Economic, Social, and Cultural Rights –
  positive rights guaranteed only if
  resources are available – not ratified by
 European Human Rights
   Law and Institutions
• European Convention for the
  Protection of Human Rights and
  Fundamental Freedoms (1953)
• European Court of Human Rights
  Inter-American Human
Rights Law and Institutions
• Charter of the OAS and American
  Convention on Human Rights
• US, Canada, and Commonwealth of
  Caribbean states did not ratify
  International Human Rights:
International Humanitarian Law
• Applies to situations of international
  armed conflict and (occasionally)
  internal armed conflict
• 1949 Geneva Convention ratified by >
  190 states: protection to victims of war
• Applies mostly to international armed
• For internal conflict – only art. 3
  government and insurgents to treat
  each other humanely
Humanitarian Law: War Crimes
and Crimes Against Humanity
• ICTY and ICTR – based on Geneva
  Convention and Nuremberg
• International Human right law thus
  has practical applicability, even in
  US (next slide)
   Human Rights and
Humanitarian Law: Practice
• Handan vs. Rumsfeld (2006)
Environmental Law
 Principles of International
    Environmental Law
1. Common Heritage and Common
   Concern of Humankind

2. Prevention of Environmental Harm
 Principles of International
    Environmental Law
3. Precautionary Principle
 Principles of International
    Environmental Law
4. Polluter pays
5. Principle of Common but Differentiated
 Principles of International
    Environmental Law

6. Principle of Intergenerational
International Environmental Law:
• Late 19th century: first interstate
  agreements regulating international
  fishing, protecting flora and fauna
• Regulation of use of water
• But bulk of environmental law -- 1960s
International environmental
        law: History
• 1972 UN Stockholm Conference (113
  heads of states)
• Declaration on Human Environment:
  politically binding principles to be
  followed by governments in preserving
  human environment, but recognized
  economic realities limiting
• Also adopted politically binding Action
  Plan: creation of UNEP
• Numerous more specific conventions in
  1970s and 1980s
International Environmental
        Law: History
• 1992 Rio Conference (172 heads of
  states): conventions on climate change
  and diversity, Agenda 21
• 1997: ICJ addresses dilemmas of
  economic development and
  environmental protection (Gabcikovo
  project of dams and locks on Danube)
• not enough to claim ecological
  necessity in closing economic project
• Need to practice sustainable
    Ecodevelopment –
 Sustainable Development
• 2002 Johannesburg Conference
• Prospects
   Ozone Depletion Treaty
• 1987: Montreal Protocol on Substances
  that Deplete the Ozone layer
• Reduction of production of ozone-
  depleting chemicals
• Non-compliance procedure: if having a
  difficulty in meeting requirement,
  country can be reported to committee
• Warning, suspension of rights and
  privileges and assistance
          Kyoto Protocol
• Reduction of carbon dioxide emissions by
  5.2% below 1990 levels by 2012
• Controversies
• “emission trading,” how to count “carbon
  sinks” (forests, rangeland, farmland)
  which reduce emissions, problem of non-
• US: treaty is not scientifically-based,
  unfair burdens, not environmentally
• With Russia signing it in 2005, in effect
   1992 Pact on Biodiversity
• Protection of biodiversity is responsibility
  of national governments
• But genetic resources have economic
  value (biotechnology)
• States should provide access to such
  resources for environmentally sound
• States should share in a fair and equitable
  way results of biotechonology with the
  state providing resource (US objected)
International Law and the
      Use of Force
        General Principles
• The use of force is prohibited in
  international relations
• Article 2(4) of UN Charter:
• “All members shall refrain I their
  international relations from the threat
  of use of force against territorial
  integrity or political independence of
  any State”
          What it means
• Armed reprisal by a state to punish
  unlawful act of another state is not
  permissible under international law
• Or
• As long as it does not threaten
  territorial integrity and political
  independence, force can be used
  for protection of human rights (few
  agree with this)
         What it means
• ICJ ruled against UK, Eritrea, and
  Uganda in violating sovereignty of
  other states even then motives
  were good
 Another General Principle
• Inherent Right of Self Defense
• Recognized as legitimate (article 51 of
  UN Charter)
• Nature of “initial attack” does not
  need to be conventional (one state or
  government attacking the other)
• Al Qaeda in Afghanistan
• US exercised a right of self-defense
• UN and intl. community supportive
• SC passed 2 resolutions recognizing
  US actions as self-defense
  Preemptive War as Self-
• With WMDs states and scholars
  assert a right of “anticipatory”
• Doubts about ability to predict
  future attacks, also intent vs.
     Peace Enforcement
• UN has a primary responsibility
  under UN charter
• Originally envisioned that states
  will enter into agreement with US
  for their forces to be called up by
  SC in case of armed conflict
  UN Security Operations,
• Rarely invoked because of
  ideological divide
• The only SC authorization to use
  force in case of breach of peace was
  in 1950 (N.Korea attacked S. Korea),
  when USSR boycotted SC
 UN Security Operations in
        the 1990s
• More active in authorization
• 1990 Iraq’s Invasion of Kuwait: UN
  authorized states to use all necssary
  means to uphold its resolution for
  immediate withdrawal
• 2003 US and UK invasion of Iraq:
  plausible, but unpersuasive
 UN Security Operations in
        the 1990s
• 1990s: authorizations to use force to
  address human rights violations
• 1992 UN authorization for US-led
  intervention in Somalia
• 1993 UN authorization for NATO air
  strikes in Bosnia
• 1994 UN authorization for France to
  intervene in Rwanda
• 1994 UN authorization for US to
  intervene in Haiti
 What do you think about
International Law and US
      foreign Policy

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