Public International Law Week 1 Flashcards
Natural law
Law is divine and either ordained by God or through reason.
Legal positivism.
Law is created by men.
Hugo Grotius
‘On the law of war and peace’ - where there is society, there is law. The association which binds together the human race, or binds many nations together, has the need of law.
Thomas Hobbes
‘Leviathan’ - state of nature is one in which there is no common power/authority. People are left to their own devices and cannot rely on state authority. The condition of man is called ‘Warre’ in which every man is against every man.
John Locke
In the state of nature, there is a lack of established, settled, known law, and a lack of indifferent judges. Introduced the separation of powers.
Subjects of international law
Those who make the law and determine, apply, and enforce the law
International legal positivism
Centred around the idea that ‘men make the law.’
John Austin’s idea of International legal positivism
International law is not law but rather positive morality because there is no common rationality in international law. If one state tells another state to do something, there is no law to back it, so it is backed by morality. Law depends on the sovereign who has power to enforce it.
Hans Kelsen’s idea of international legal positivism
There is no sovereign, but when international law is violated states may do two things: reprisal or war
Reprisal
responding to an unlawful act with an unlawful act that is thereby justified
HLA Hart
A legal system has two types of law - primary law and secondary rules. International law only has primary law, and you need secondary rules for a legal system. Thus, international law is not a legal system due to absence of secondary rules.
Primary law
Rules which create obligations and rights for subjects of law.
Secondary rules
Dictates who can create, interpret, apply, and enforce the law.
Leslie Green, Thomas Adams
Law is a matter of what has been posited. The law is the law because it is the law - does not need to be fair just, wise, efficient, etc. to be the law.
ICJ Barcelona Traction Case
“In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former is the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes (to everyone).”
Criteria for a State according to Montevideo Convention
Permanent population, defined territory, effective government, capacity to enter into relations with other states.
ICJ UN Reparations
The UN has international legal personality to bring cases to the ICJ.
ICJ Western Sahara
A population does not have to be grounded to fulfill the ‘permanent population’ criteria of the Montevideo Convention. You can be nomads to fulfill the permanent population criteria.
The application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned.
ICTY Blaskic
Concerns state sovereignty and whether states can be ordered to do something by international courts. “The exception legal basis of Art 29 ICTY Statute accounts for novel and unique power granted to the international tribunal to issue orders to sovereign states.”
Reference re Secession Quebec
Concerned self-determination/succession/unilateral declaration of peoples. A right to self-determination arises only in the most extreme cases and under carefully defined circumstances such as when being decolonized or to escape gross and systemic breaches of human rights.
ICJ Kosovo Advisory Opinion
International law does not prohibit declarations of independence generally, thus anyone can declare independence. However, the issue of whether they have authority or this is allowed is unclear - the Court evades the answer related to if self-determination and remedial secession is allowed under international law.
Constitutive theory
Recognition is constitutive for statehood. Thus, to be considered a state, recognition by other states is legally required.
Declaratory theory
The existence of a state is determined by reference to the fulfillment of the Montevideo Convention for statehood. Thus, once a state declares it is a state and fulfills Montevideo Convention, then it is a state.
UNGA Res 2625
Any action which would dismember or impair the territorial integrity or political unity of sovereign and independent states is discouraged and not authorized.
International legal personality
International legal personality means you have rights and obligations under international law, and thus you have legal personality, and so you can enforce legal claims under international law.
Two elements: capacity to enforce legal claims, rights and duties under international law.
Three legal sources for if international law allows a unilateral declaration of independence/secession/external self-determination
UNGA Res 2625: NO – any action which would dismember or impair the territorial integrity or political unity of sovereign and independence states in not authorized nor encouraged (not legally binding, but can be considered CIL)
Quebec re secession: MAYBE – a right to external self-determination/independence arises only in the most extreme cases and under carefully defined circumstances such as when being decolonized or to escape gross and systemic breaches of human rights (only binding in Canada, not internationally)
Kosovo Advisory Opinion: MAYBE – did not recognize the right to unilateral secession, but did not declare it prohibited either (not a definitive answer).
Hence, can argue either side with the sources.
Are UNGA Resolutions binding?
No, UNGA Res are not binding on states, however, they can reflect CIL.
Right to self-determination
The right to self-determination is a rule of both treaty law, contained in Article 1 of the ICCPR and Article 1 of ICESCR, and customary international law. This right is granted to a particular category of subjects of international law, namely peoples and includes the right of peoples to choose freely their political system and pursue their economic, social and cultural development without outside interference.
