Public International Law Week 1

Question 1

Natural law

Answer 1

Law is divine and either ordained by God or through reason.

Question 2

Legal positivism.

Answer 2

Law is created by men.

Question 3

Hugo Grotius

Answer 3

‘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.

Question 4

Thomas Hobbes

Answer 4

‘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.

Question 5

John Locke

Answer 5

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.

Question 6

Subjects of international law

Answer 6

Those who make the law and determine, apply, and enforce the law

Question 7

International legal positivism

Answer 7

Centred around the idea that ‘men make the law.’

Question 8

John Austin’s idea of International legal positivism

Answer 8

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.

Question 9

Hans Kelsen’s idea of international legal positivism

Answer 9

There is no sovereign, but when international law is violated states may do two things: reprisal or war

Question 10

Reprisal

Answer 10

responding to an unlawful act with an unlawful act that is thereby justified

Question 11

HLA Hart

Answer 11

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.

Question 12

Primary law

Answer 12

Rules which create obligations and rights for subjects of law.

Question 13

Secondary rules

Answer 13

Dictates who can create, interpret, apply, and enforce the law.

Question 14

Leslie Green, Thomas Adams

Answer 14

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.

Question 15

ICJ Barcelona Traction Case

Answer 15

“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).”

Question 16

Criteria for a State according to Montevideo Convention

Answer 16

Permanent population, defined territory, effective government, capacity to enter into relations with other states.

Question 17

ICJ UN Reparations

Answer 17

The UN has international legal personality to bring cases to the ICJ.

Question 18

ICJ Western Sahara

Answer 18

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.

Question 19

ICTY Blaskic

Answer 19

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.”

Question 20

Reference re Secession Quebec

Answer 20

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.

Question 21

ICJ Kosovo Advisory Opinion

Answer 21

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.

Question 22

Constitutive theory

Answer 22

Recognition is constitutive for statehood. Thus, to be considered a state, recognition by other states is legally required.

Question 23

Declaratory theory

Answer 23

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.

Question 24

UNGA Res 2625

Answer 24

Any action which would dismember or impair the territorial integrity or political unity of sovereign and independent states is discouraged and not authorized.

Question 25

International legal personality

Answer 25

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.

Question 26

Three legal sources for if international law allows a unilateral declaration of independence/secession/external self-determination

Answer 26

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.

Question 27

Are UNGA Resolutions binding?

Answer 27

No, UNGA Res are not binding on states, however, they can reflect CIL.

Question 28

Right to self-determination

Answer 28

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.