Weekly (7) summary notes which can be used for general study as well as to revise for exams. The document covers the nature, development, and subjects of international law, sources of international law, jurisdiction and immunities, the law of the sea, international human rights law, international o...
WEEK 1 : NATURE, DEVELOPMENT AND SUBJECTS OF INTERNATIONAL LAW
PART 1 : DEVELOPMENT OF INTERNATIONAL LAW
• Histor
End of Roman Empire = created feudalism era (people creating contracts with the rich)
End of Feudalism = Europe became a mixture of different system with a complex political framewor
Problems ➝ 16th century movement that criticised some church practices led to civil wars
• The Peace of Westphalia
Two peace treaties signed bringing an end to two brutal war
• End of 80 years war (Netherlands v Spain) and 30 years war (Catholics v Protestants
• Recognised the full territorial sovereignty of the member states of the (former) Empir
• Secular law superseded religious law ➝ a decisive move away from a universal law rooted in religio
• States now considered as equal and sovereign in their relations with one another, without external
interference unless consent was expressly given
• 17th, 18th, and 19th Century
The introduction of nation ‘state’ (John Locke)
Imperialism developed into colonialism
The transition from natural law (divine law/reason) to positive law (man-made law; ie. social contracts
The introduction of codi cation (Napoleon) which spread throughout Europe
Congress of Vienna ➝ redrew the map of Europe and lead to ‘the congress system’ = the domination of great
powers in Europe
• 20th Century
1928 ‘Kellogg-Briand Pact’ → parties to the Pact agreed to renounce war as an instrument of national policy in
their relations with one another
• Played a crucial role in laying down a prohibition on aggressive wa
• While widely rati ed, did not prevent violence during the 1930
World War
• Treaty of Versailles → peace treaty that brought an end to the war which had an impact on
• League of Nations → rst worldwide IGO devoted to the attainment of peace (ultimately failed)
World War 2
• UN Conference on Int. Org. and the UN → the war brought about discussions on and the creation of a new
peace-seeking organisation
• Following 1945
UN Charter efforts towards prohibition on recourse to war and the use of force in inter-State relation
From co-existence to cooperation
• on matters such as food, education, labor, health, etc.
Decolonisation → self-determination of people
Geographical expansion : universality → in principle most territory in the world is subject to a State
• Major Developments
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, International Peace and Security
• The UN = centralisation for peace and security (art 2(4) and Chapter VII)
• International organisations became subjects of int. law
- they can conclude treaties = more in uence / ability
Human Rights
• Universal Declaration of Human Rights 1948 → rst international agreement on the basic principles of
human rights adopted by the UNGA {enshrines the rights and freedoms of all human beings}
• Providing humans with rights as well as obligations → int. subject with respect to int. criminal law
(obligation not to commit heinous crimes - genocide, war crimes, or crimes against humanity)
International Criminal La
• The winning party would never be prosecuted, the losing party would - this changed from the 1990s
onwards, making it more fair
• International Criminal Court → the rst permanent international court concerning individual
Self-determination of Peoples
• In the context of decolonisation
Self-Determination → the right of all peoples to freely determine their political status and to pursue their economic, social, and
cultural development
>> Origin = emerged as the legal foundation of the law of decolonisation (UN Charter art 1(1), 55; UNGA Res 1514, 1541, 2625)
Sources:
• Art 1 ICESCR and ICCP
• Principle 5 of the UNGA Friendly Relations Declaration (XXI-2625) → comprehensive formulation of the principl
• Art 1(2) UN Charter → recognised as one of the purposes of the UN but given no binding force
• Canadian Supreme Court (in the Reference re Secession of Quebec) — *this judge-made law is not binding internationally
External v Internal Self-Determination
• Internal Self-Determination → the right of a people of an existing State to choose freely their own political system and to
pursue their own political system and to pursue their own economic, social, and cultural development (ie. within the
con nes of a State)
• External Self-Determination → the creation of a new State (ie. decolonisation)
• It is easier to argue for independence when it concerns a colony (as the origin of the principle is decolonisation); when the
people compose an administered territory of a parent State arguing for independence (eg. Catalonia and Spain) it is harder
— because they may already have internal self-determination
• With internal self-determination, self-determination may be implemented without entitling the people to its own,
independent State
Canadian Supreme Court → ‘A people’s pursuit of its political, economic, social, and cultural development within
the framework of an existing State
> the principle of self-determination would enable a people to separate from a State only exceptionally, when the
rights of the members of the people are violated in a grave and massive way (para 132-134)
How is the right exercised
• Preference is accorded (implicitly) to use of referenda → Principle IX UNGA Resolution 151
Reaf rmed by the ICJ in the Western Sahara Advisory Opinion (p57-59)
Outside the context of decolonisation, preference may differ
Key Points
- It is the right of ‘peoples’ (the de nition of which is contested)
- Source ➝ art 1 ICESCR and ICCPR
- Internal v external self-determination
- The right to self-determination does not exhaust after use - the right subsists and continues to be vested in the people 2
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, PART 2 : NATURE OF INTERNATIONAL LAW
• Foundation of La
Hugo Grotius (On the Law of War and Peace) : if there is society, there is law
Thomas Hobbes (Leviathan) : the state of nature
• Without a common power to keep everyone under control (a sovereign) there are in a condition of wa
• Where there is no law, there is no injustice
John Locke (Second Treatise of Government) : preservation of property / social contract
• In the state of nature, there lacks :
- an established, settled, and known law
- a known and indifferent judge
- power to back support the sentence when right, and give it due execution
• The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under
government, is the preservation of their property (life, liberty, and possessions)
• Concept of La
John Austin → Lectures on Jurisprudenc
• Every positive law is set by a sovereig
• One State cannot order another State as all States are (equally) sovereig
• ie. International law has no sovereign = no sanction annexed to a command = not law, but morality
Hans Kelsen → Principles of International Law (countered Austin’s theory)
• Reprisals are acts which, although normally illegal, are exceptionally permitted as reaction of one state
against a violation of its right by another stat
• Reprisals (ie. war) as a sanction of international law
• There is no need to have a sovereign in order to have sanction
H.L.A Hart → the Concept of Law
• Primary v Secondary rules
- Primary Rules : obligations, substantive and procedural, binding States
- Secondary Rules : governs the consequences of non-performance, or breach, of primary rules
• National Legal Systems : the State has centralised authority = vertical relationship (between State and its
subjects) ➝ it is a relationship of authority
• International Law : States have equal sovereignty = horizontal relationship (it is a matter of identifying the
subject)
- Consensual law-makin
- Adjudication by consent
- Unilateral enforcement
PART 3 : VALUES AND PURPOSE(S) OF INTERNATIONAL LAW
• Values
Law lays out both the rules according to which societies can ful l their values and aspirations, and it provides
the framework through which that society will be governed
Value : one’s judgement of what is important in life
- Individuals → eg. life and limb; freedom; security; in uence; eduction; opportunities; etc.
- States → eg. political independence; territorial integrity; domestic jurisdiction/autonomy; etc.
• Purpose
The regulation of international relations → regulation of relations between various actors (normally States)
Substantive goal(s) of international law → human rights; democracy; free trade; int. peace, order, and justice
Effectiveness → reciprocity : States often base their decisions on the choices of others
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, • The Basis of Obligation of International Law
The binding nature of obligations for States seems, above all, based on consent → entails that only those
obligations to which a State will have committed itself will be considered bindin
The emergence of peremptory norms have further entrenched non-derogable obligations that all States must
respec
Principle of Reciprocity → States consent to limit their freedom of action in order to induce other States to
limit their own
Art 2(2) UN Charter : obligations assumed by States must be performed in good fait
PART 4 : SUBJECTS OF INTERNATIONAL LAW
• What is a Subject ?
Legal Personality → the notion of an entity being capable of exercising rights and duties under int. law
• To be a subject is to have legal personality
• To have rights under int. law does not inherently provide and entity with unlimited abilities under int. law
‣ An entity (eg. individual) may have legal personality yet cannot make an international (legal) claims
- ie. because they cannot transcend the national legal system due to the procedure (eg. requirement to
run through all national means before reaching int. level)
• Subjects of International La
States → original, primary subject
• Possess full, objective legal personality, endowing them with full legal capacity with respect to rights,
powers, and obligation
• Possess the ability to
> Appear before int. tribunals (or national tribunals) in order to enforce rights under international law;
> Be subject to obligations under international law;
> Make binding international agreements (treaties); an
> Enjoy some or all immunities
International Organisations → int. personality through being created by States themselves (ie. derivative
personality)
• Partial Personality → they do not enjoy the full capacities of States, rather limited capacity to act under
int. la
• Case law → Reparation for Injuries Suffered in the Service of the U
Individuals or National Liberation Movements → int. personality only through conferral or recognition by
States (limited derivative personality
• Individuals mainly enjoy human rights and have certain int. obligations under int. criminal law
PART 5 : STATEHOOD
• State
Statehood → the status of being a recognised independent natio
Quali cations → the sovereignty required for statehood requires a centralised, organised structure capable of
exercising effective control over a given territory and those individuals found within i
• Conditions under art 1 of the Montevideo Convention
1. A permeant population;
2. A de ned territory;
3. Government
4. Capacity to enter into relations with other states
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