Public International Law Units 1-3

Question 1

What is public international law?

Answer 1

A set of legal norms pertaining to the international community, governing cooperation between states, international organizations, and sometimes individuals.

Question 2

How did international law evolve over time?

Answer 2

International treaties have existed since ancient times, but the formal system of international law emerged later, marking the transition from state sovereignty and autonomy.

Question 3

What was the significance of the Peace of Westphalia in international law?

Answer 3

Marked the start of modern international law by establishing sovereign equality—each state is equal and has autonomy over its internal affairs, with no authority above it, especially after the Pope’s influence ended.

Question 4

How did the French Revolution affect international law?

Answer 4

The separation of state and monarch led to the recognition of states as independent entities, becoming the primary subjects of international law instead of monarchs.

Question 5

What principle of international law is established in the UN Charter, particularly in Article 2?

Answer 5

Article 2(1) establishes the sovereign equality of all UN members. Article 2(7) also prevents UN intervention in domestic matters, but Article 1(3) emphasizes international cooperation to promote human rights.

Question 6

What were the flaws of the League of Nations?

Answer 6

It lacked universal membership (not including the US or Russia) and had no enforcement powers, making it ineffective in preventing German rearmament and international disputes.

Question 7

What was the impact of the Berlin Conference on international law?

Answer 7

The conference laid the legal groundwork for the “Scramble for Africa,” justifying colonial expansion under the guise of civilizing missions and ending slavery, though it ignored the sovereignty of African nations.

Question 8

How did international law evolve during decolonisation?

Answer 8

The principle of self-determination emerged, as seen in Article 1(2) of the UN Charter, supporting the independence movements of formerly colonised states.

Question 9

What is the principle of sovereign equality in international law?

Answer 9

This principle, cemented in documents like the UN Charter, states that all member states are equal under international law, with no external interference in their domestic affairs.

Question 10

What was the key issue in the AG for NI Reference [2022]?

Answer 10

This case dealt with the tension between the right to protest and the regulation of buffer zones, particularly around abortion clinics, with the UKSC upholding the legal restrictions as proportionate under Article 11 ECHR.

Question 11

What is the nature of international law?

Answer 11

International law is a horizontal legal system where states are sovereign and equal, with no centralised legislature, enforcement, or judicial system. States voluntarily make laws through treaties or customary practices.

Question 12

What was Grotius’ view on international law?

Answer 12

Grotius believed that international law arises from common consent among states, aiming to benefit all states, and he distinguished between the Law of Nations and the Law of Nature.

Question 13

What did Vattel argue regarding states and international law?

Answer 13

Vattel believed that states are free and independent, bound by obligations only when they voluntarily consent to them, and only by rules derived from natural law or consensual agreements.

Question 14

What did the Lotus Case (1927) state about sovereignty and international law?

Answer 14

The court ruled that a state’s entry into a treaty does not mean abandoning sovereignty, but rather exercising it by voluntarily agreeing to regulate certain actions.

Question 15

What is the issue with the consent theory of international law?

Answer 15

Brierly pointed out that the consent theory struggles to explain why states remain bound by treaties after withdrawing consent, creating a dilemma for understanding international obligations.

Question 16

What are peremptory norms (jus cogens) in international law?

Answer 16

Jus cogens norms are fundamental principles of international law that are universally applicable and superior to other rules, such as the prohibition of torture, and they cannot be overridden by treaties.

Question 17

What does the VCLT say about conflicts with peremptory norms?

Answer 17

rticles 53 and 64 of the VCLT state that treaties conflicting with peremptory norms (jus cogens) are void, and any existing treaty that conflicts with a newly established jus cogens norm becomes void.

Question 18

How does international law enforce peremptory norms like the prohibition of torture?

Answer 18

The International Court of Justice (ICJ) holds that the prohibition of torture is a jus cogens norm, which obligates states to prosecute or extradite individuals accused of torture, as it is universally applicable under customary international law.

Question 19

What did the Barcelona Traction case state about obligations erga omnes?

Answer 19

The case distinguished between obligations towards the international community as a whole (erga omnes) and those towards individual states. These obligations, due to their importance, concern all states, and all states have a legal interest in their protection.

Question 20

What does Article 48 of ARSIWA say about state responsibilities?

Answer 20

Article 48 allows any state (other than the injured state) to invoke the responsibility of another state if the obligation breached concerns a group of states or the international community as a whole.

Question 21

What is the difference between monism and dualism in the context of international law?

Answer 21

Monism views international and domestic law as part of a single legal system, where international law is superior. Dualism treats them as separate systems, with international law operating independently of domestic law.

Question 22

What is pluralism’s view on international and domestic law?

Answer 22

Pluralism acknowledges the existence of multiple legal systems, but it does not see them as “essentially different.” Instead, it focuses on how these systems interact in practice.

Question 23

How is the supremacy of international law reflected in domestic courts?

Answer 23

n cases like the Treatment of Polish Nationals in the Danzig Territory, domestic law cannot be used to evade international obligations, demonstrating the supremacy of international law over domestic law.

Question 24

What is the effect of incorporating treaties into UK law?

Answer 24

Incorporation through legislation gives treaties domestic effect, as seen in cases like R v Lyons, where the statute (not the treaty) forms part of English law.

Question 25

What is the difference between incorporation and transformation of international law in the UK?

Answer 25

Incorporation involves turning international law into domestic law through legislation, while transformation refers to domestic courts applying international law as part of common law, as seen in cases like Trendtex Trading v Central Bank of Nigeria.

Question 26

How can international law influence common law in the UK?

Answer 26

In cases like R v Jones, Margaret, it was suggested that customary international law (CIL) can be a source of English law, but domestic courts cannot create new common law crimes based on international law.

Question 27

How does judicial review relate to international law in the UK?

Answer 27

Judicial review can involve assessing whether domestic decisions comply with international law, as discussed in cases like Ex Parte Brind, which limited the application of the European Convention to domestic administrative decisions.

Question 28

How do courts interpret statutes in light of international law?

Answer 28

As in cases like Salomon and Cox, courts presume that Parliament does not intend to breach international law, including treaty obligations, and will prefer interpretations consistent with international law.

Question 29

What is voluntarism in international law?

Answer 29

Voluntarism holds that international law emanates from the free will of sovereign states. States are bound only by rules they have consented to, either through treaties or established customs.

Question 30

What are the sources of international law according to Article 38 of the Statute of the International Court of Justice?

Answer 30

Primary Sources: Treaties, customary international law, general principles of law recognized by civilized nations. Subsidiary Sources: Judicial decisions and the teachings of highly qualified publicists.

Question 31

What is the distinction between formal and material sources of law?

Answer 31

Formal Sources: The reason a binding rule exists. For example, treaties that create legal obligations. Material Sources: The place where the rule is found, like textbooks or other written sources.

Question 32

What are treaties and how do they function in international law?

Answer 32

Treaties are formal agreements between states governed by the Vienna Convention on the Law of Treaties (VCLT). They are based on consent, good faith, and the principle pacta sunt servanda. States are bound only by treaties they consent to.

Question 33

What is customary international law?

Answer 33

Customary international law consists of practices that are generally accepted as law, even though they may not be written down in treaties. Unlike treaties, no express consent is required from states, and not every state needs to participate for a rule to bind them.

Question 34

What is the Two Element Theory of customary international law?

Answer 34

Customary international law consists of two elements: General Practice: The consistent and general conduct of states. Acceptance as Law: States must believe that their actions are legally required (opinio juris).

Question 35

How does state practice contribute to the formation of customary international law?

Answer 35

State practice must be general, consistent, and long-term. States must act consistently with the rule, and breaches of the rule should be treated as violations, not as new practice.

Question 36

Was the rule on the prohibition of force under Article 2 of the UN Charter considered international customary law in the Nicaragua case?

Answer 36

Yes, the Court found that the prohibition on the use of force was a customary international law, despite the United States refusing to accept the ICJ’s jurisdiction over the matter.

Question 37

Do examples of inconsistent state practice negatively affect a customary international law rule?

Answer 37

No, inconsistency does not necessarily harm the rule. Absolute conformity isn't required; otherwise, any breach could be argued as a new custom, leading to chaos.

Question 38

Question: What are we looking for in state practice under the ILC guidelines?

Answer 38

We look for the executive's actions, legislative actions, state laws linked to international law, and actions of domestic courts.

Question 39

Can failure to act be counted as state practice in forming customary international law?

Answer 39

Yes, a state's failure to act, such as abstaining from voting or refusing to vote in an intergovernmental conference, can be considered state practice.

Question 40

What is the rule of state immunity in international law?

Answer 40

One state cannot sit in judgment over another state's actions. This principle recognises sovereign equality but has exceptions, such as the case where Italy held Germany responsible for WWII atrocities.

Question 41

What is opinio juris in the context of customary international law?

Answer 41

Opinio juris is the belief that a state's practice is legally obligatory. However, determining when a practice transitions into a customary law is complex and often debated, as seen in the Truman Proclamation.

Question 42

Can a rule exist both as a treaty and customary international law?

Answer 42

Yes, in the Nicaragua case, the prohibition on the use of force was found both as a treaty (UN Charter) and customary international law, showing parallel existence.

Question 43

How can a treaty contribute to the formation of customary international law?

Answer 43

Treaties can codify pre-existing customary law, or the process of concluding a treaty may catalyse the formation of customary law, especially when states practice the treaty rules.

Question 44

Can a state that persistently objects to a customary international law rule prevent its formation?

Answer 44

No, persistent objection does not stop the rule from forming, but the objector will not be bound by the rule once it becomes customary.

Question 45

What are General Principles of Law (GPLs) in international law?

Answer 45

General Principles of Law are principles recognized by the international community as being part of international law, as outlined in Art. 38(1)(c) of the ICJ Statute. Examples include good faith, res judicata, and corporate personality.

Question 46

Are General Principles of Law an exception to voluntarism in international law?

Answer 46

It is unclear. There are different opinions, but for a general principle to exist as part of international law, it must be recognized by the international community.

Question 47

What is the ILC’s approach to General Principles of Law?

Answer 47

The ILC identifies two kinds of general principles: those found in national legal systems and those formed within the international legal system, though the latter is controversial.

Question 48

How do General Principles of Law fit with customary international law (CIL)?

Answer 48

General recognition of a principle is not sufficient for it to form part of CIL. General Principles of Law are mainly used when other rules cannot be applied and can sometimes form the basis for primary obligations.

Question 49

What are subsidiary means in international law?

Answer 49

Subsidiary means are sources used to determine international law, including international judicial decisions, national judicial decisions, writings of most highly qualified publicists, and the International Law Commission (ILC).

Question 50

How do national judicial decisions influence international law?

Answer 50

National judicial decisions are used as subsidiary means to create customary international law, though they have less weight than international judicial decisions.

Question 51

What is the International Law Commission (ILC)?

Answer 51

The ILC is a subsidiary organ of the UNGA, established in 1947 to progressively develop and codify international law. It involves state participation and is a crucial authority in shaping international law.

Question 52

How are ILC rules developed?

Answer 52

ILC rules are developed through Special Rapporteurs who report on topics. States' views are solicited, and the final outcome may be submitted for adoption as a treaty or remain as non-binding recommendations.

Question 53

What is ‘soft law’ in international law?

Answer 53

Soft law refers to non-binding instruments, such as UNGA resolutions or principles, that influence international behavior. They contrast with binding, formal law (hard law), such as treaties.

Question 54

What is the significance of Jus Cogens in international law?

Answer 54

us Cogens norms are peremptory norms of international law that cannot be derogated by other rules. They hold a higher status and apply universally.

Question 55

What is meant by "subjects of international law"?

Answer 55

Subjects of international law are primarily entities that possess international legal personality, meaning they have rights, obligations, and the ability to make international law or bring claims in international courts.

Question 56

What is international legal personality (ILP)?

Answer 56

ILP refers to the capacity of an entity to have rights and duties under international law, and the ability to bring international claims. Entities with ILP include states, international organisations, and certain non-state actors.

Question 57

What role do states play as subjects of international law?

Answer 57

States are the primary subjects of international law, holding the full range of rights and obligations. They are responsible for creating international law, entering treaties, and participating in international organisations.

Question 58

What are the key criteria for statehood under international law?

Answer 58

The key criteria for statehood are: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states (Montevideo Convention).

Question 59

What is the significance of recognition in international law?

Answer 59

Recognition is important for statehood, but there are two theories: the Declaratory view, where recognition is merely a formal acknowledgment of an existing fact, and the Constitutive view, where recognition is essential for statehood.

Question 60

What is the Montevideo Convention's stance on statehood?

Answer 60

The Montevideo Convention codifies statehood criteria and adopts a declaratory theory, stating that a state’s political existence is independent of recognition by other states. “The state as a person of international law should possess the following qualifications: (a) a permanent population; ( b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Question 61

How is sovereignty defined in international law?

Answer 61

Sovereignty in international law refers to a state's independence, meaning it has the right to exercise authority within its territory, free from external interference, and to possess all rights and duties under international law.

Question 62

Can a state lose its international personality or rights if it is not recognised by other states?

Answer 62

No, under the declaratory theory, statehood exists independently of recognition. States can still exercise rights and obligations, even if other states do not recognise them.

Question 63

How does international law view non-state actors like individuals and international organisations?

Answer 63

Non-state actors, such as international organizations and individuals, may have international legal personality depending on the rights and duties they possess. For example, the UN has ILP but is not a state.

Question 64

What is the difference between a state's government and its status as a state?

Answer 64

A state is distinct from its government. The state's legal personality persists even if the government changes. The key factor is the state's permanent population, defined territory, and sovereignty, not the specific government.

Question 65

How is statehood created?

Answer 65

States can come into existence through original acquisition (e.g., terra nullius), devolution, secession, or the creation of unions or federations. Examples include the breakup of the Soviet Union and Yugoslavia.

Question 66

What are the requirements for a state to have "territorial sovereignty"?

Answer 66

A state must have exclusive authority over a defined territory, with no requirement for a minimum size or contiguity. Sovereignty includes the right to conduct activities within the state's borders without interference from other states.

Question 67

What is the declaratory view of state recognition?

Answer 67

Recognition is not constitutive but merely declaratory—i.e., a state exists independently of recognition if it meets certain criteria.

Question 68

What does the Montevideo Convention say about statehood?

Answer 68

Article 1 outlines four qualifications: (a) permanent population, (b) defined territory, (c) government, (d) capacity to enter relations with other states. Article 3: Statehood is independent of recognition.

Question 69

Can nomadic populations meet the "permanent population" criterion?

Answer 69

Yes. The Western Sahara Advisory Opinion (1975) held that nomadic tribes can be politically and socially organized, so the territory was not terra nullius.

Question 70

Can a state exist without an effective government?

Answer 70

Yes, in some cases—e.g., DRC in 1960 lacked effective government but was admitted to the UN. Self-determination and lack of competing claims compensated.

Question 71

Is the capacity to enter into relations a criterion or a consequence of statehood?

Answer 71

A consequence. Crawford: It results from effective government and independence.

Question 72

What is the role of independence in statehood?

Answer 72

It is central. Independence = the right to exercise functions of a state to the exclusion of others (Island of Las Palmas, Anzilotti Sep Op).

Question 73

Does international law impose conditions on state creation?

Answer 73

Yes, in some cases: Right to independence (e.g., self-determination) Prohibition (e.g., violation of human rights or illegal use of force) Neither right nor prohibition (Kosovo Advisory Opinion)

Question 74

Examples where creation of a state was prohibited under international law?

Answer 74

TRNC (Turkey’s invasion of Cyprus) Bantustans (apartheid-era South Africa) Crimea, Donetsk, Luhansk (Russia’s actions)

Question 75

Is recognition legally required in some cases?

Answer 75

Yes. E.g., refusal of recognition may be required for entities created by illegal acts (e.g., TRNC).

Question 76

What is the principle of self-determination?

Answer 76

Peoples have the right to freely determine their political status and pursue their development (UN Charter, ICCPR, Friendly Relations Declaration).

Question 77

What does UNGA Resolution 1514 (1960) say about self-determination?

Answer 77

All peoples have the right to self-determination; they freely determine their political status and pursue economic, social, and cultural development.

Question 78

What is the principle of territorial integrity?

Answer 78

It limits self-determination to avoid breaking up existing states; it is balanced against the right to self-determination.

Question 79

What is "uti possidetis" and how is it relevant?

Answer 79

Principle that new states emerge with pre-existing administrative borders (GA Res 1514, para 6).

Question 80

Is self-determination a peremptory norm (jus cogens)?

Answer 80

Yes, according to the Occupied Palestinian Territory Advisory Opinion.

Question 81

What’s the difference between internal and external self-determination?

Answer 81

Internal: rights within a state (political/cultural). External: right to secede/form a state.

Question 82

What were UN Trust Territories?

Answer 82

Former mandate territories; administering powers had a duty to prepare them for independence (UNC arts 76b, Chs IX & XIII).

Question 83

What are Non-Self-Governing Territories (NSGTs)?

Answer 83

Colonial territories under regulation; duty to promote self-government (UNC art 73).

Question 84

What is remedial secession?

Answer 84

A possible right of oppressed groups to secede due to serious human rights violations. not consented to by First Nation.

Question 85

Does remedial secession exist in IL? (Quebec Case)

Answer 85

Unclear – Canada SC said it’s not an established right unless there's serious oppression. Bangladesh example

Question 86

When did Kosovo declare independence and what followed?

Answer 86

In 2008; recognised by over 100 states. Serbia objected. The declaration was not illegal under IL – issue is whether statehood is effective.

Question 87

Has state practice shifted from "effective control" to "constitutionality"?

Answer 87

Yes, with examples like Haiti, Afghanistan, and Venezuela.

Question 88

Can IOs make treaties?

Answer 88

Yes – per VCLT 1986, subject to their internal rules (Art 6).

Question 89

What rights do individuals have under human rights law?

Answer 89

As per ICCPR, ICESCR, etc., individuals have enforceable rights at international/regional courts.