International Law

Question 1

define public international law

Answer 1

A body of rules, which we typically break down into rights and obligations, which are legally binding on those entities which have international legal personality including states.

Question 2

what are some examples of public international law?

Answer 2

• Prohibition on the use of force, genocide and crimes against humanity
• Obligation to trade in accordance with WTO rules
• Obligation to respect the sovereign immunity of other stats and top state officials
• Obligation to take action to prevent global temperature rise to 2 degrees
• Obligation to protect human rights, including prisoners
• Obligation to environmental harm
• Obligation to take action against suspected terrorists
• Obligation to cooperate with the International Criminal Court

Question 3

why is international law important to NZ

Answer 3

New Zealand’s foreign policy supports and engages with the international rules based order. If New Zealand wants to pursue its national interest it has to do so through this rules based order. This is because NZ is a small country and doesn’t have the economic weight or a big army that other bigger countries do. We require international law to protect us and to check the power of much larger states.

Question 4

what are threats to the rules based order

Answer 4

North Korea is not bothered about the rules based order. Bigger states such as China and the US attempt to manipulate the rules based order because of their power. States which have been very supportive and are now becoming less supportive. International law is under pressure from many states.

Question 5

what issues does covid-19 raise about international law

Answer 5

Covid-19 raises some fascinating questions in terms of international law. These are around things like boarder controls, shipping controls, human rights implications of quarantine, the US diverting PPE meant for Germany to them, cooperation, the World Health Organisation and its powers, threats to peace and security and what we can hold China accountable for.

Question 6

what is the purpose of international law

Answer 6

International law provides a framework for states to interact and cooperate. These are the laws of the game of diplomacy.

Question 7

what are the 7 core features of the international legal system

Answer 7

limited number of participants and emphasis on the nation state as the dominant participant

indeterminate nature of the sources of international law

international law is often regulated as a consensual legal system

judicial decisions comprise only a subsidiary source of international law

absence of central legislative authority

collective responsibility

relative absence of effective sanctions

Question 8

describe the core feature: Limited Number of Participants and Emphasis on the National State as the Dominant Participant

Answer 8

While the state is still the centre of attention its not ALL about the state anymore. There has been a rise in non-state actors but the state is still the dominant actor.

Question 9

describe the core feature: Indeterminate Nature of the Sources of International Law

Answer 9

At the international level we spend a lot of time arguing about the sources of international law. We don’t have universal agreement on what constitutes a source of international law. For example, some would say the UN General Assembly is a source but most would say it isn’t. This feature undermines the international law system to some extent and supports that it is quite a primitive source of law. In domestic law, this would be a fairly basic element.

Question 10

describe the core feature: International Law is Often Regarded as a Consensual Legal System

Answer 10

It is very difficult to impose international law on states. States often have the option to choose whether to ratify treaties, withdraw or object to a certain provision (reservation). The system is quite horizontal rather than hierarchical like in a domestic system.

Question 11

describe the core feature: Judicial Decisions Comprise Only a Subsidiary Source of International Law

Answer 11

In a common law system, judicial decisions are a primary source of law. In a civil legal system this idea wouldn’t be strange at all because judicial decisions play a much more subsidiary source of law there. This feature, therefore, more reflects a civil law system. This also means there is no doctrine of precedent.

Question 12

describe the core feature Absence of Central Legislative Authority

Answer 12

Law making is decentralised and done through treaties, customs and other mechanisms. We have the UN General Assembly, but this is not like a Parliament.

Question 13

describe the core feature: Collective Responsibility

Answer 13

This means that everybody takes a level of responsibility and suffer and feels the consequences of one states decision. This is not as dominant as it used to be as increasingly sanctions are targeted against particular individuals and goods.

Question 14

describe the core feature: relative absence of effective sanctions

Answer 14

The main criticism of the international law system is that it cannot be enforced. It goes back to the question: is international law actually law since there are no sanctions? There are sanctions for breaches of international law, however they are not as effective as domestic sanctions. There is no police force or judicial system to sanction international law.

Question 15

international legal personalities are entities which?

Answer 15

have formal rights and duties at the international level

Question 16

what are the 4 requirements for a state to become a state under the montevideo convention on rights and duties of states

Answer 16

population, territory, effectuve government, a capacity to enter into relations with other states

Question 17

what is the population criterion

Answer 17

There is no minimum size, but there is the requirement that the population is permanent. This is the reason why Antarctica, for example, cannot be a state.

Question 18

what is the territory criterion

Answer 18

There is no minimum size so long as you can establish that you have a territory. Even if the boundaries are not absolutely delimited (i.e. where there are arguments over boarders) this isn’t necessarily a problem in determining that the entity is a state.

Question 19

what is the effective government criterion

Answer 19

There needs to be some regulating authority in charge and you need to be able to operate as a state effectively. You also have to be an independent state because you can’t become a state under another states control.

Question 20

what is the capacity to enter into relations with other states criterion

Answer 20

Many would say this is a consequence of statehood rather than a requirement in order to become a state.

Question 21

what is a legal limitation on acquiring territory

Answer 21

Uti Possidetis (as you possess thus may you possess) is also known as territorial integrity. A group may only exercise the right of self-determination (in order to form a state) in respect of territory that does not require a change to the boundaries of any existing state. Where a change to boundaries is required, agreement must be sought with affected parties. This is to ensure stability through keeping original boarders except where there is a negotiation and agreement.

Question 22

does an entity need to be recognised by other states to be a states

Answer 22

not a criteria but will be very difficult to enter into relations if you aren’t recognised

Question 23

does an entity need self determination to become a state

Answer 23

This underpins the decolonisation process, but there may be a tension between the principle of self-determination and the principle of territorial integrity. However, this is still a criteria as the people have to wish to become an independent state.

Question 24

does a state need to respect human rights, democracy, rule of law etc to become a state

Answer 24

These are not requirements of statehood but may well be required for states to be recognised by other states.

Question 25

who are the non-state actors at international law

Answer 25

international organisations, individuals, groups of people

Question 26

describe international organisations as non-state actors

Answer 26

These are organisations such as the United Nations, World Health Organisation and hundreds of others. Prior to 1945 it wasn’t clear whether international organisations could be formal legal persons. But now it can be identified that they are legal persons and their rights and duties vary depending on their function. Remember, being a legal person does not make them a state!

Question 27

describe individuals as non-state actors

Answer 27

Individuals are international legal persons but only for very limited purposes. Individuals have obligations at international law as they can be tried before international tribunals for genocide, crimes against humanity and other serious crimes. Rights for individuals are much more restricted at the international level.

Question 28

describe groups of people as non-state actors

Answer 28

The one basic right of groups of peoples is the right of self-determination. This right doesn’t necessarily mean you have to form a state. Internal self-determination is exercising those economic, social and cultural rights within another state (which contrasts external self determination which is forming a state).

Question 29

describe NGO’s and multinational corporations as non-state actors

Answer 29

they do not have legal personality

Question 30

what is the consequence of legal personality

Answer 30

States create and are bound by law. The can appear before the ICJ and other tribunals.

International organisations have limited rights to create law and are bound by law. A small number can appear before the ICJ but generally they do not have rights to participate at an international level.

Individuals cannot create law but are bound by international law. They may also exercise certain rights under international law.

Question 31

what are the 4 sources of international law as in the 1945 statute of the international court of justice, article 38

Answer 31

(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) International custom, as evidence of a general practise 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

Question 32

describe treaties

Answer 32

These are contractual agreements that can be bilateral (between two states), plurilateral (between a limited number of states) or multilateral (open to all states). Bilateral treaties are quite contractual in nature and are reciprocal between the two parties, while plurilateral and multilateral treaties are more legislative in nature.

According to the 1969 Vienna Convention on the Law of Treaties, Article 2(1)(a), “treaty” means 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 (whatever you call it).

The caveat is, this operates to define treaties for the purposes of the Vienna Convention.

Question 33

what are the 5 parts of the anatomy of a treaty in the Vienna Convention

Answer 33

international agreement, between states, in written form, governed by international law, whatever its designation

Question 34

describe the international agreement part of treaties

Answer 34

Treaties have to be an agreement between two or more states. This operates in a very similar way to contract law.

Question 35

describe the between states part of treaties

Answer 35

Treaties have to be between international legal persons that have the requisite capacity to enter into treaties.

Question 36

describe the in written form part of treaties

Answer 36

This is important for the purposes of the Vienna Convention. It is possible, theoretically, to have a treaty not written down but it is very rare. They are inevitably and practically going to be written down because they are very important.

Question 37

describe the governed by international law part of treaties

Answer 37

States can enter into contracts with each other, governed by the law of one or both states. The difference with a treaty is that its intended to be governed by international law not domestic law.

Question 38

describe the whatever its designation part of treaties

Answer 38

It doesn’t matter what the treaty is called (i.e. a charter, convention, treaties, covenant, statute etc.), as long as you meet the requirements.

Question 39

describe consent based system in relation to treaties

Answer 39

International law is a consent based legal system. There is no mechanism to force a state to ratify a treaty. States have a choice to enter into treaties and their rights and obligations. It is all a matter of choice.

Question 40

describe states ability to withdraw from treaties

Answer 40

States can withdraw from treaties. They can opt out. Most treaties set down the conditions to withdraw. Recent examples of withdrawal include Brexit and Trump withdrawing from the Paris agreement on climate change.

Question 41

describe states ability to make reservations on treaties

Answer 41

Many treaties allow a state to ratify the treaty but object to certain provisions within a treaty. These are called reservations. The arguments for reservations are that otherwise they won’t ratify if there are small bits they don’t like. If we allow reservations, then they’ll agree to most of it.

Some treaties prohibit reservations such as environmental treaties. A reservation is also invalid if it goes to a really important provision or is very broad. This again goes back to the consent based system. Human rights are notorious for reservations. It is better to get States kind of bound by most parts because every states culture is different.

Question 42

what are jus cogens norms

Answer 42

These are peremptory norms of international law, which means they are compelling law. These are laws that a state cannot contract out of and can only be replaced by another norm of equal status i.e. a jus cogens norm has to be replaced by another jus cogens norm, you can’t just make a treaty or a new custom. These norms are so compelling and important that they underpin international law.

Question 43

what are some examples of jus cogens norms

Answer 43

Jus Cogens norms include:
- Prohibition on aggression
- Prohibition on genocide
- Prohibition on war crimes and crimes against humanity
- Self determination (although limited by uti possidetis/territorial integrity)
- Prohibition on torture? This is arguable because it is either just there or not quite there
Fundamental human rights? Many human rights lawyers would regard human rights as rights of jus cogens

Question 44

what would a hierarchical international law system look like, if we are moving towards that rather than flat

Answer 44

jus cogens –> treaties, customs, general principles –> judicial decisions, academic writing –> soft law and other sources

Question 45

what are the 7 principles from the friendlt relations declaration

Answer 45

Prohibition on Threat or Use of Force

Peaceful Settlement of Disputes

Principle of Non-Intervention

Duty of Co-Operation

Equal Rights and Self Determination of Peoples

Sovereign Equality of States

Good Faith

Question 46

describe prohibition on threat or use of force

Answer 46

This has been identified as a Jus Cogens norm by the ICJ, but is less than 100 years old. States definitely used to be able to take things by force, but now they cannot use any force against one another. This still holds even though there is constantly breaches. There are two generally accepted exceptions: self-defence and where force is authorised by the United Nations Security Council.

Question 47

describe peaceful settlements of disputes

Answer 47

It is not just about refraining from using force, but creating positive regulation to help states settle disputes peacefully. There is a lot of international law to aid this process. Dispute resolutions include negotiation, mediation, conciliation or judicial dispute resolution. States are more accepting of judicial dispute resolution now in the 21st Century.

Question 48

describe principle of non-intervention

Answer 48

A state is not entitled to interfere in the domestic affairs of other states. This dates back to 1648 with the Peace of West failure in Europe. The challenge to this principle is that states cannot rely on this principle when they are mistreating their people in a significant way.

Question 49

describe duty of co-operation

Answer 49

This general principle underpins the international legal system. States have the duty to cooperate with each other regardless of their political, economic, ideological and social systems differences. Examples of spaces to co-operate in include semi-enclosed seas and management of shared rivers. COVID brings up interesting questions about co-operation and whether there is a duty to share information, notify or warn other states of risk, prevent people travelling or share information about potential treatments.

Question 50

describe equal rights and self determination of peoples

Answer 50

These are core principles embodied in the UN Charter. Every people has a right to pursue their economic, social and cultural development, not only in making a state but in the many other ways of seeking out self-determination.

Question 51

describe sovereign equality of states

Answer 51

All states enjoy sovereign equality and are legally equal. They have the same rights and duties at the international level. However, militarily, economically or practically some states are more powerful than others. They are legally equal, but in practise don’t exercise the same powers.

Question 52

describe good faith

Answer 52

Every state has a duty to fulfil in good faith the obligations assumed by it in accordance with the United Nations Charter.

Question 53

what are some potential additional principles to the friendly relations declaration

Answer 53

There is nothing environmental in this declaration which is a reflection of the times. There is nothing about a duty to refrain from harming neighbouring territory/territorial national jurisdiction or the prohibition on genocide.

Question 54

what are the two components of custom

Answer 54

state practise and opinio juris (what a state believe is required by law)

Question 55

in order to go towards a custom, practice must be?

Answer 55

widespread and virtually uniform

Question 56

what is the requirement of opinio juris for something to become a custom

Answer 56

There has to be belief that they (the state) should be doing the practice under international law. There has to be a feeling of requirement to do that practise

Question 57

what is the persistent objector rule

Answer 57

During the formation of a customary rule a state can “persistently object” to that rule. Provided the objection is sufficiently persistent, that state will not be bound by that rule. This rule can be costly to the country objecting and is quite crude. They may have to continue to object after the creation to ensure they don’t become bound.

Question 58

where does consent come into custom

Answer 58

This is more complex here than in relation to treaties. If you sit silently through the formation of a rule and do not object you become bound by that rule and cannot object later. Persistent objection preserves the consent aspect of international law for customs.

Question 59

what are some examples of customary norms

Answer 59

• Prohibition on aggression
  
  • Prohibition on entering a foreign embassy or otherwise interfering with foreign diplomats
  • Right of non intervention
  • Right to exclusive control over natural resources within national waters
    Obligation to refrain from seriously harming the territory of other states or areas beyond national jurisdiction

Question 60

what are general principles of law

Answer 60

General principles must be of general application by ‘civilized nations’ i.e. states that have law.

Two key examples of general principles are good faith and equity.

Question 61

what are subsidiary sources of law

Answer 61

judicial decisions and writings of eminent publicists

Question 62

what other ‘other possible sources’ of international law

Answer 62

Soft Law: A wide variety of documents which are not intended to be legally binding but are designed to influence the behaviour of states.

United Nations General Assembly Resolutions: Formally these are recommendatory only.

United Nations Security Council Resolutions: These are designed to enforce not create law.

Decisions of International Organisations

Unilateral Declarations Made By States