unit 1 - slides Flashcards
Definining Public International Law
the rights and obligations which are legally binding
between subjects of international law and regulate
their relations and do not belong exclusively to the
internal law of one subject
1.By Sanction
2.By Source
3.By Legal Person
4.By Subject Matter
I.1 PIL defined by sanction (1)
- No central institutions to ensure compliance
- Countermeasures
◦In principle, unlawful
◦Not unlawful if addressee of countermeasure itself previously violated
international law
◦ Limits: proportionality, ius cogens - Retaliatory Measures
◦Not unlawful, but “unfriendly”
◦ E.g. termination of diplomatic relations, non-extension of economic aid
2 PIL defined by source: Art 38 ICJ Statute (1)
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice 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.
PIL defined by source: Art 38 ICJ Statute (2)
1) Treaties
2) Customary International Law
3) General Principles of Law
4) Decisions of international organisations (e.g.
binding resolutions of the UN Security Council)
5) Unilateral Acts
1-3 in Art 38, rest not
PIL defined by source – IO Decisions (3)
Resolution 1373 (2001)
Adopted by the Security Council at its 4385th meeting, on
28 September 2001
The Security Council,
…
Acting under Chapter VII of the Charter of the United Nations,
1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds
by their nationals or in their territories with the intention that the funds should be used, or
in the knowledge that they are to be used, in order to carry out terrorist acts;
PIL defined by source (4): Soft law
*Soft law
◦Non-binding resolutions of
international
organisations/political
declarations
◦E.g., Universal Declaration of
Human Rights 1948
PIL defined by legal personality (1)
Legal persons in international law = bearers of rights and obligations
▪States (full). The only person with sovereignty
▪(Intergovernmental) international organizations (partial)
▪Individuals (human rights; criminal responsibility of individuals) (partial)
▪National liberation movements & insurgents (partial)
▪Transnational Corporations (TNCs) (partial)
No legal personality in international law: non-governmental organizations
(NGOs)
PIL defined by subject matter
Not all rules with a cross-border dimension are part of public
international law
Not
*Supranational European Union Law → sui generis legal order
*Conflict of law rules/private international law
. A (brief) history of international law
- “Classical international law“ 1648-1918
- October Revolution 1917
- Decolonization 1945 - present
- The (Seeming?) End of the East-West Conflict 1989
Features of Public International Law
- State Sovereignty
- Territory of a state
- Equality of states
- Non-intervention in internal affairs
- The requirement of consent
- State Responsibility
1 Internal vs. external sovereignt
Internal sovereignty
* Autonomy and supreme authority
* A state can apply its law to all
people and objects on its territory
* New feature: protecting the
population against the most
serious human rights violations:
Responsibility to protect (R2P)
External sovereignty
* Independence and equality of
states in their relations with each
other
* No state is subject to the authority
of another
* Principle “one state, one vote” in
IOs/negotiations
Relative vs. absolute sovereignt
*Absolute sovereignty: international law is merely “external state
law”. States can withdraw unilaterally (Hegel).
*Relative sovereignty: No state is subject to the will of another
state; all states are however subordinate to international law and
bound by it
Sovereign Equality and Political Reality
- The growing dependence of states on each other, “Ubi interactio, ibi ius”
(Where there is interaction, there is law) - Formal sovereign equality does not reflect the reality of international
relations: in reality, states are unequal in economic and political terms - The voting principle of “of one state, one vote” does not capture the
unequal distribution of economic and political power
5 Consent of States
*States create and interpret & apply rules of international law
* International Law is based on the consent of its subjects
-Have given their consent to legal rules (treaties)
-Have not objected to these rules (customary law)
Is international law law?
- Is it effective?
No / No
* John Austin: International law is not law
* No central legislature or executive
* No compulsory jurisdiction of
(international) courts
* No law enforcement body with a
monopoly on the use of force →
system of collective security ineffective
Yes / Yes (most of the time)
* Principle of reciprocity → “compliance
pull”
* Basic consensus on the validity of the
international legal order → international
law necessary for regulating
international relations
* Cost-benefit-analysis
