Development_ Human Rights and the Environmental Considerations by malj

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									  Public International
       Law (PIL)
Introduction to the International Legal System
    Main Concepts of Public
    International Law (PIL)
O Actors
O Sources
O Jurisdiction
O Compliance
O Principles
O Dispute   Settlement
            Domestic law
O Executive   (government)
  O Head of state (Queen/PM)


O Law-making    body (parliament)

O Court   system = compliance
                       Questions
O Personality in international law – who are the actors on the
    international plane? What role do individuals play? What about
    insurgents in states – do they have a role? What are the powers of
    international bodies, eg the UN? ICJ?
O   Sources of international law – what is a treaty? What other sources of
    law are there? Is there a hierarchy of law – similar to a constitution?
O   Statehood as a notion – what is a state? How is territory converted into
    a state? What happens if there is a revolution within a state? What
    about minorities or ex-colonies – can they be states if they want to?
    Who owns Antarctica? Who owns the Arctic?
O   Responsibility - what if a law is breached? Can a victim claim
    compensation? Who has responsibility?
O   Jurisdiction – over what acts does a court have jurisdiction to hear and
    by whom? Can the UK be sued in Iraq for illegal activities of its armed
    forces in Basra, Iraq? What about alleged war criminals? Does anyone
    have immunity from suit? Could ex-PM Tony Bair be sued by Iraq?
                   Questions
O human rights – domestic human rights are a product of
  international agreements by states to afford those within their
  jurisdiction such rights – how can they be enforced if the state
  is unwilling to observe them?
O law of the sea – most of the planet is ocean – who governs
  what happens on the seas? Can a naval vessel (warship) sail
  into a foreign harbour? Can a submerged submarine? Who
  owns the fishing resources of the sea? Who owns the oil and
  gas found under the sea? Who can prosecute pirates?
O finally, if relations between states break down – in what
  circumstances can they use military force to settle their
  disputes? Why was the invasion of Iraq in 2003 of
  questionable legality? Is it legal to supply foreign insurgents
  with weapons and funding to wage war on their own state?
           What is PIL


International law is law between States
Actors/Subjects in the International
    Legal System = Personality

O Primary actors/subjects      of PIL are STATES
  O Non-self governing territories/associated states
O InternationalOrganizations (IOs) or Inter-
  Governmental Organizations
O Non-Governmental Organizations [NGOs]
  (Legal Persons)?
O Human Individuals (Natural Persons)?
O Insurgents within a state?
O Corporations? TNCs/MNCs
States as the primary subjects
 Generally states are recognised as possessing
  
 O The ability to make claims before international
   tribunals to vindicate rights given by
   international law
 O Power to make valid international agreements
   (treaties ) that are binding in international law
 O Obligations under international law
 O Immunities and privileges from the jurisdiction
   of national courts.
IOs: Reparations for Injuries Suffered in the
       Service of the UN case, (1949)

    O UN is not a state – so does not have same rights and duties as
      states.
    O Its international legal personality – as with other IOs – is
      determined by its functions and purposes.
    O The court analysed the constituent instrument of the UN – the
      1945 UN Charter – and found that member states had
      created not merely a centre for the harmonising of the actions
      of its members but had endowed it with roles to be carried
      out and duties to be achieved.
    O Thus, the UN was endowed with the rights to require members
      to accept and carry out its decisions – consequently, the court
      found that the UN had immunities and privileges similar to
      those enjoyed by states when carrying out similar functions, as
      well as the personality to conclude international agreements
      - most of these are similar to the powers of states.
Individuals and personality
 O Dutiesby imposition of individual criminal
   responsibility

 O Receiver of   human rights

 O Individual   in a certain role – eg head of state
      Non-State Actors
O Insurgents  within a state
O National liberation movements


  O Temporary grant of personality
  O Usually control territory and people
  O Raison d'être = Treaty obligations under the
    laws of war as parties to the conflict
                    NGOs
O What about Amnesty International?
  Greenpeace? Human Rights Watch? etc?
  O represent civil society


O International   Committee of the Red Cross
  (ICRC)
Corporations and personality
O Usually domestic  contract law – or
  internationalised contracts
  O Note foreign direct investment agreements
    with state


O What   of duties?
  O Human rights? CSR
              Questions

O What is meant by ‘personality’?
O Who ‘grants’ personality – ie where does it
  come from?
O What personality do individuals have?
O Should corporations have personality?
History of international law
 O From   15-20th centuries
 O Legal thinkers such as: Vattel, Grotius,
   Vitoria, Aquinas, Pufendorf, Gentili
   O Natural v positive law debate
 O Catholicism  and Protestantism in the
   religious wars in Europe
 O The birth of ‘states’ at Westphalia (1648)
 O Colonialism
 O 1914 war and the League of Nations

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    League of Nations 1919
O In 1919 the League of Nations was created in the Treaty of
  Versailles
O The idea: not enough done pre-1914 to prevent states
  resorting to war – not enough to settle the dispute
  peacefully.
O Thus; the aims of the League of Nations were
     O (1) to prohibit war and
     O (2) adopt a mechanism of collective security.


O   The theory of the League = collective interest of states
    should prevail over the national interest of states.

O   Also demands for rule of law basis – not balance of power.   16
The birth of the UN 1945

O The   League failed:us

  O The US did not join us
  O Other powerful member states ignored it
    when it suited them and withdraw

O World War Two
O Try again???

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Preamble to UN Charter 1945
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

O to save succeeding generations from the scourge of war ,
  which twice in our lifetime has brought untold sorrow to
  mankind, and
O to reaffirm faith in fundamental human rights , in the dignity
  and worth of the human person, in the equal rights of men and
  women and of nations large and small, and
O to establish conditions under which justice and respect for the
  obligations arising from treaties and other sources of
  international law can be maintained, and
O to promote social progress and better standards of life in
  larger freedom



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Two key notions of IL
           O State   Sovereignty

                     AND

      O State consent   to be bound



O as the Bases of International Law

                                      19
           State sovereignty
O States    are sovereign –there is no higher
    legal order.
But what does state sovereignty mean?
O Territorial integrity – no state, or individual, can breach that
  territorial sovereignty without the consent of the state.
O All states are equal– regardless of size and power (Art.2(1)
  UNC).
O Political independence – states are free from the
  interference/intervention of other states – note Art.2(4) UNC.

O   As a corollary to a state’s own sovereignty, it has the
    responsibility to respect the sovereignty of other states.


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              UNC provisions
O Art. 2(1)
   The Organisation is based on the principle of the sovereign equality of
   all its members.


O 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.

O Art. 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.


                                                                                 21
                The UN Structure
O Security Council
   O Primary responsibility for the maintenance of
     international peace and security
   O Binding decisions
   O 15 members: 5 permanent (veto states: US, UK,
     China, Russia, France) and 10 non-permanent
     (elected for 2 years)

O General Assembly
   O All states represented
   O Decisions usually by 2/3 majority
   O Roles on handout

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PCIJ/ICJ: Statute of the ICJ
O Sits at the Hague, Netherlands
O 15 judges
   O Elected for 9 year term
   O Representative of permanent states but regional spread
   O Litigants allowed a national representative on panel- judge
     ad hoc
   O One judgment – but dissenting or separate opinions


O Work:
   O   Contentious cases – states – Art 34 SICJ
       O State consent for jurisdiction of court needed
   O   Advisory opinions – Art 96 UNC/Art 65 SICJ
       O SC/GA plus other organs of UN and specialized agencies


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                  ICJ UNC provisions
Article 92, UN Charter
   The International Court of Justice shall be the principal judicial
   organ of the United Nations. It shall function in accordance
   with the annexed Statute, which is based upon the Statute of
   the Permanent Court of International Justice and forms an
   integral part of the present Charter.

Article 93(1), UN Charter
   All Members of the United Nations are ipso facts parties to the
   Statute of the International Court of Justice.

Article 94, UN Charter
   Each Member of the United Nations undertakes to comply with
   the decision of the International Court of Justice in any case to
   which it is a party.

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 Monism and Dualism
O Describes how international law impacts within states:

Usually split:
O Treaty law
   O   Applicable within state law upon ratification
       O Self-executing or non-self-executing
   O   Applicable via statute enacting the treaty - UK
O Customary law
   O   Usually automatically applicable as law of state

O ICJ judgments? Depends on state as to how are treated
  by domestic courts and constitution

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