Public International Law (PIL) - B1 - Rechten - UU - Aantekeningen hoorcolleges

Deze aantekeningen zijn gebasseerd op het het vak Public International Law (PIL) in 2015-2016.

Hoorcollege week 1

Aim of Public International law: regulating international relations through norms:

• Order and stability

• Justice

• Dispute-settlement

It’s not only about nations, but also about intergovernmental organisations and sometimes even people.

1648: treaty of westfahlen → it ended the thirty-year war. For the first time in human history all sovereign states were equal. This meant that every state had territorial sovereignty.

Aim of Private International law: regulating legal relations between individuals (can also include corporations as such)

International Law developed from law of co-existence to law of cooperation and to law of integration.

Case 1: Nicaragua

There was a war between the SU and the US. US supported the rebels, the contras. Nicaragua went to court, saying that the US violated their borders and that force had been used against Nicaragua. The case is important for the use of force and state responsibility. Art. 2(4) of human/united nations charter could not be applied because the US did not accept the jurisdiction

Hoorcollege week 2

Relationship between sources of international law

There are also other sources of international law not listed in article 38, namely:

• Decisions of international organizations (only the binding decisions)

• Unilateral acts (nuclear tests)

• Soft law, it looks like law but it are basically political norms. States comply with those laws because they don’t want to have a bad name.

Treaty and custom are not more important than one another. The way it is solved is on basis of lex specialis and lex posterior.

Lex specialis: more specific law prevails over more common law.

Lex posterior: younger law prevails over older law.

Jus cogens: peremptory norms, more important than any other source of international law!

Treaty Law (treaty, convention, statute, charter, agreement, protocol are all other words with the same meaning)  Vienna Convention on the Law of Treaties (VCLT)

VCLT only deals with treaties between states.

Treaties are only applicable to the parties. (art. 34 VCLT)

Treaties are formed in the following way and order:

• Adoption

• Signature

• Approval

• Ratification (becoming a party)

  • (accession) if a party is too late to sign

• entry into force

Interpretation of treaties:

• Textual approach

• One looks only at the tekst that is in the treaty. In Dutch this approach is called “Grammaticale interpretatie.”

• Intention of the parties (travaux préparatoires)

• Context (Theleologisch)

Invalidity of treaties

Treaties can become invalid in a variety of ways, namely by:

• Incompatibility with international law of the state (art. 46 VCLT)

• Error

• Fraud

• Corruption

• Coercion

• Jus cogens

Termination of treaties

• Consent

• Denunciation: one doesn’t want to be a party anymore.

• Material breach

• Supervening events

• Fundamental change of circumstances

Hoorcollege week 3

Monism/Dualism

International law and domestic law are both in the same big system, working belong side each other. This is called monism. Domestic law and international law are separate spheres. In order to use international law in the nation sphere, it has to be transferred first. This is called dualism. All states are equal, it doesn’t matter how big a state is, or how long is has been around for.

Who matters on the stage of international law?

The leading role is performed by states.

The supporting role is for International Organizations and individuals.

Extras:

Peoples, liberation movements, international corporations, minorities and humanity: they are not subjects of international law, but this can change in the future. There’s no set of criteria on being a subject of international law.

States

The birth of states: Peace of Westphalia (1648): The sovereign nation state.

A state is the highest authority within its jurisdiction and all states are equal. 

Criteria for statehood (Montevideo criteria):

• Permanent population

  • No minimum in numbers

  • Can be nomadic

  • Population must be distinguishable

• Defined territory

  • Boundaries and borders don’t have to be settled

  • ‘reasonable ascertainable territory’

  • size is irrelevant

• Government (with authority)

  • Self-governing people (democracy is not required)

  • Government must exercise total control.

• Capacity to enter into relations with other states.

  • Examples: business relations, conclude treaties and exchange diplomats.

Theories of recognition:

If the existence of a state is not depending on the the recognition of other states, we call it the declaratory theory. On the other hand, the constitutive theory means that the existence of a state does depend on the recognition by other states. A state can acquire territory in a variety of ways.

• Occupation

• Prescription (The territory did belong to someone but not anymore, over time the territory goes from one state to the other)

• Cession, when a state formally gives up some of its rights.

• Annexation (with force)

Hoorcollege week 5

Sometimes a state can breach an international obligation, in this case it is important to be able to determine whether a state can be held responsible. The provisions for state responsibility can be found in the ILC Articles on Responsibility of States for Internationally Wrongful Acts. (ILC)

State responsibility is engaged when:

There was an action or omission which is attributable to the state under international law. (Either a conduct of an organ of a state, or an other entity.) Which constitutes a breach of an international obligation of the state and there is no applicable circumstance precluding wrongfulness. (Found in article 20, 21, 22, 23, 24, 25 or 26 ILC). Sources for international law = treaties, customary law

Consequences of state responsibility:

1. responsible state must stop acting wrongful (29&30 ILC)

2. responsible state must provide reparation(31), of which there are three kinds:

3. restitution (35 ILC)

4. compensation (36 ILC)

5. Satisfaction (37 ILC)

Hoorcollege week 6

States tried to prohibit the use of force by establishing the league covenant in 1919 and the Kellog-Briant pact in 1928. However, they failed to prohibit the use of force, because:

• They did not prohibit the use of force, but merely put pressure on states not to resort to it.

• None of them provided state parties with the right of self defense

• No sanctions against defaulters were given.

• Not all states participated.

The resolution tot his problem was the UN Charter (article 2(4))

• It prohibits use of force and threat of force.

Is a military operation legal in accordance with the law of armed conflicts? (Jus in Bello) The following sentences give the criteria that have to be fulfilled in order for a military operation to be legal. Of course the latter has to be answered negatively.

• Is there an armed conflict?

• If so, is it international or non-international?

• Is a target lawful?

• Is a measure proportionate?

• Does the measure cause unnecessary suffering?

Even if an action is legal under ius ad bellum (law on use of force), it can still be illegal under ius in Bello. (int. Humanitarian law)

The prohibition of the use of force

Prohibition of use of force (2(4) UN Charter)

As one can read in article 2(4) of the UN Charter, the use of force is prohibited. There are three exceptions though, all criteria will be listed below, with the relevant articles in the UN Charter.

• Exception 1: Self-defense (article 51 UN Charter)

  • Individual/collective

    • Armed attack

      • Classic

      • Anticipatory self-defence

        • Imminent threat

        • Threat must be overwhelming

        • Instant threat

        • Threat leaves no choice of means or time for deliberation

    • Necessity

    • Proportionality

    • Armed group? If a case deals with an armed group, things can get a little more difficult. For example: IS attacks Syria and the Netherlands wants to fight IS through self defense because they are afraid that IS will attack the Netherlands. (As has recently happened in Belgium.) In order for NL to be able to fight IS IN Syria, we have to link IS to Syria in order tob e allowed to do it. This criterion can be regarder a non-existent if a case is not about an armed group.

    • Until the security council has taken measures necessary

• Exception 2: Collective security (authorized by un security council)

  • Article 39: threat to peace and security

  • Article 40: provisional Measures

  • Article 41: non-force measures (economic sanctions, prohibition on travelling etc.)

    • The word “May” indicates that article 41 is not required per se, however it has to be examined whether there’s a non-force measure.

  • Article 42: use of force/ “all necessary means”

• Exception 3: International humanitarian law (customary law) → the goal should justify the means

If IS attacks the Netherlands, all criteria of self-defense will be fulfilled. However, to fight IS in Syria, there needs to be a link in order to be able to fight in Syria against IS. The attacks of a certain group can be attributed to a state. ARSIWA helps to establish this link.

§191-195 of the Nicaragua case defines an “armed attack”. These paragraphs are the most important in the case.

Hoorcollege week 7

Peaceful Dispute Settlement.

Art. 2, sub 3 of UN Charter states that states shall settle their disputed by peaceful means.

Article 33 of the UN Charter gives several ways in which a state can settle a dispute without using force. (Chapter VI of the UN Charter)

First of all, the parties to a dispute must seek a solution by:

1. 1. Negotiation > meeting by parties of the dispute (most used)

   2. Enquiry > Fact-finding mission, can be used alone or next to any other diplomatic means;

   3. Mediation > third party will actively intervene, and help the parties to find a solution.

   4. Conciliation > third party also has an active role, but even more structured. It ends with adoption of the conciliation report.

   5. Arbitration > it is a faster way to come to a conclusion than via the ICJ. Tribunals are formed after a dispute has started. This is the main difference with the Judicial Settlement.

   6. Judicial settlement (ICJ)

Arbitration and judicial settlement are the two judicial methods of dispute settlement. A, b, c and d are called the diplomatic methods.

There are four methods of accepting the jurisdiction of the ICJ. The jurisdiction is not automatically there. (article 36 of the ICJ Statute)

• Contentious jurisdiction (binding) > article 36

  • Optional clause =

  • Compromise = an agreement that can be seen as a treaty, but only fort he specific dispute.

  • Compromissory clause =

  • Forum prorogatum = everything else, by just appearing for example.

• Advisory jurisdiction (not binding) > article 65.1

Also, the claim has to be admissible by meeting three criteria:

• The claim is legally founded

• All local remedies have to be exhausted

• Nationality (link)

The World Trade Organization: substantive law. : “Shrimp/ turtle case.”

Basic principles:

• There can not be different tariffs for different countries. This is also known as the most favoured nation. (Art. I GATT)

• National treatment: When a good crosses a border, the receiving country may not sell it for a higher price than the national ‘like’ product. (art. III GATT)

There are however, some exceptions in article XX GATT.

International Economic Law

The core principles of the World Trade Organization (WTO):

• Tariffication;

  • Prohibition to use quantitive restrictions on imports and exports of goods.

• Non-discrimination of other states in relation to trade;

• National Treatment;

• Most favoured national treatment. (GATT)

(geen werkgroepen in week 7)

Hoorcollege week 8

The Law of the Sea

There are several zones from the baseline :

• 12 miles (territorial zone),

• 24 miles (continental shelf), until the steep drop, you can still exploit

• 200 miles (exclusive economic zone)

UNCLOS I&II were the two first sea conventions. UNCLOS I was created in 1958, and its main purpose was to codify the international law that had been established so far.

UNCLOS III came in 1982. Israel, Greece, Venezuela and the US did not sigs the convention. At the moment, 160 countries have signed the convention, but the US is still not one of them.