unit 1 - lecture Flashcards
definition of PIL
rights/obligations which are legally binding between subjects of international law and regulate their relations and dont belong exclusively to the internal law of one subject (regulates relations between states, primarily) (mostly inter-governmental law, but also covers international orgs/individuals/orgs)
- military hostilities, how seas are governed, to civil aviation, etc. covered by international law
- customs = most/all states participate in that practice; states participate bc they feel like they need to do it ( ex good treatment of foreign diplomats)
- general principles of law= more general than customs, derived from character of international systems or from similarities in national laws
- rules can both be of customary law and a treaty
- customs are unwritten (pretty general character, limit: no specific rules)
way of thinking abt international law
1.by sanction
(no central institutions, countermeasures (expression of self-help, unlawful, except if addressee of countermeasure itself violated international law; limits: proportionality (ius cogens; can’t have countermeasures that are more extreme than actions of addressee), retaliatory measures (not unlawful; not requirement for a prior unlawful act happening before) (can have international tribunal, like ICC, but is exception to the rule, mostly international orgs/states that apply international law) (need for self-help - up to states to decide if another state has broken international law, may have differing opinions)
2.by source
(international conventions (general or particular establishing rules expressly recognized by the contesting states); international customs (evidence of a general practice accepted as law; general principles of law recognised by civilized nations) ===> Article 38 (treaties, customary int law, general principles of law) ; subject to 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 == subsidiary means (unilateral acts, binding resolutions/decisions of international organizations) (ex: Security council authorized states to use force against iraq after iraq invaded kuwait in the 90s) ; soft law (non.binding resolutions of international orgs/pol orgs, ex :universal declaration of human rights 1948) (important but not binding)
- by legal person
(legal person = bearers of rights and obligations: states (fully; only person w sovereignty), intergovernmental international organizations (partially), individuals (human rights; criminal responsibility of individuals, partially), national liberation movements/insurgents (insurgents= military groups, who are trying to overthrow the government) (partial), transnational corporations (TTNCs; ex: Microsoft))
no legal personality= NGOs (non-governmental organizations) (some exceptions, like the red cross) - by subject matter
not all rules w a cross-border dimension are part of public international law; exceptions: supranational EU law (sui generis legal order; ex: have central legal bodies), conflict of law rules/private international law
history of international law
Classical international law (1648- 1918) (western/european countries only)
October revolution 1917 (soviet revolution, challenged classic rules, ex w state succession (russians said bc they had new systems they shouldnt be bound by debt of the former government)
Decolonization (1945-present) (now greater diversity, impact on classic rules)
the (seeming?) end of the east-west conflict 1989
features of public international law
- state sovereignty (internal and external: authority inside)
- territory of a state
- equality of states (all states are equal; same basic rights/obligations)
- non-intervention in internal affairs
- the requirement of consent (foundational for int. law; only bound by treaty if you have consented to it)
- state responsibility (if they breach international law, they have responsibility for that)
positivism VS natural law on PIL
positivism = states create the law based on sources of international law (most common idea today; states/ international orgs create international law through set procedures/sources)
natural law= does not depend on states/ law (god given/natural order of law, states have to abide by)
Lotus case
(in interwar period; collision of ships, both flying their perspective flags, turkish men drown, french captain on trial and receives minor ruling; france against that) =====> develops lotus principle (idea that states are free to act unless there’s a rule of international law that says they cannot act; sovereignty of states not constrained unless there is rule of international law)
primary actors of int. law
states (consent; cant be bound by international law if they don’t agree to it; ex can’t be bound to treaty if they don’t ratify it)
ex customary law abt the seas
ustom freedom of the seas (historically; idea that seas belong to everyone/everyone can use it); now maritime zones (Truman declaration, coastal states have exclusive rights (like the USA), bc states agreed/stayed silent, it is now new custom) == takes time tho so that states can consent/or not
vienna convention on the law of treaties on when u can withdraw consent from treaty
- states can only withdraw consent from treaty, if the treaty allows it/ if it’s in accordance w the treaty (if the treaty says it takes 6 years until you are allowed to withdraw from it, u have to follow it)
- generally believed u cant withdraw consent from a custom (but customs change over time)
notes from excercise
- bc of international law, states don’t have absolute sovereignty (just relative, bc they are bound by treaties/law/etc.)
- sovereign equality (states are in formal terms the same) — in practice some more relevant (ex five permanent members in security council; also if ex USA/china push for a treaty there is higher chance of it passing than if its proposed by ex samoa)
- states are the lawmakers
- no international org has sovereign power, nor plenary sovereign power
prohibitions
- prohibition of use of military force, unless bc of self-defense or if the security council allows it
- now prohibition of genocide (states now care abt what you do “behind closed doors”), recognition that states face the same/similiar challenges (ex climate change/ terrorrism)
- general rule that state isnt allowed to interfere except if state is f.ex. committing genocide (exceptions exist)
- in self-defense force used has to be proportional (ex: can’t annex part of other state)
