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Public International Law.ppt

Public International Law.ppt

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Published by: Narendar Gehlot on Apr 28, 2012
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Public International Law

law that governs relationships between, or among, nationstates

International Law Historically and Presently
• Law that applies to conduct of nationstates and of international organizations • Law that applies to relationships between nation-states and international organizations • Law that applies to some relationships between nation-states or international organizations and persons – see Restatement (Third) of Foreign Relations Law of the United States ' 101 (1987)

The Nature of International Law

Supremacy of International Law
• Intl. Law supersedes national law

national law never supersedes international law • Domestically.Supremacy of International Law • Internationally. national law may take precedence over international law .

Enforcement and Compliance • When international law is enforced on national level. it follows the same principles as domestic law • But International courts do not have jurisdictions over national/domestic affairs. cannot enforce without cooperation .

“De Jure Belli Ac Pacis” (1625) – systematic overview of the international law of war and peace • Emmerich de Vattel (1714-1767).History of International Law • Hugo Grotius (1583-1645). The law of Nations (1758) – practical and cited guide to international law .

History of International Law • Positivism – Richard Zaouch (1590-1660) • Actual state practices as a source of international law – law emerges as a consent of states cf. social contract) .

agreements. treaties • International custom – customary international law • General principles of law • Judicial decisions (international and national) and the teachings of qualified publicists Sources of Public International Law .• Article 38(1) of the Statute of the International Court of Justice (UN) • Restatement (Third) of § 102(2) • International conventions.

Article 38 (1) of ICJ • A rule cannot be deemed international law unless it is: • International convention or treaty • International custom or • General principle of law • But do they have the same hierarchical value? .

gov/s/l/treaty/trea .state.Source: Treaties • depends on whether U.S. is a party and whether multilateral or bilateral • List of treaties US is a party to – “Treaties in Force in 2007” http://www.

Source: Treaties • List of treaties US is not a party to • http://untreaty.un.asp (more research is necessary) .org/ENGLIS H/Summary.

International Treaties • Bilateral – a treaty involving 2 parties .

• Multilateral – a treaty involving many parties International Treaties .

2000. be reflected in the depositary's status lists relating to this treaty. The United States requests that its intention not to become a party. that the United States does not intend to become a party to the treaty. as expressed in this letter. 1998. in connection with the Rome Statute of the International Criminal Court adopted on July 17." . the United States has no legal obligations arising from its signature on December 31.• International Treaties "This is to inform you. Accordingly.

diplomatic exchanges) • state’s domestic court decisions • state’s internal legislation concerning its international obligations • resolutions. declarations & legislative acts of intergovernmental organizations Source: Customary International Law .• evidence of state practice in: • records of a state’s foreign relations and diplomatic practices (as set forth in official statements.

Opinio Juris • It’s not enough for a practice to be widely followed It must come from • sense of obligation • followed by significant number of states and not rejected by significant number • A shared conviction that the rule is obligatory • Once practice becomes the law. it is obligatory to all states that have not objected to it .

since they did not have a chance to object to it? • Yes.International Customary Law and Newly Independent States • Are new states bound by international customary law in force. according to Restatement of 102(2) .

modern international law relies less upon general principles than on conventional and customary sources .now.General principles of international law recognized by civilized nations • Historically more important .

general principles will establish norms that then become custom • look to decisions of international tribunals for a determination of what are “general principles” .General principles of international law recognized by civilized nations • The lines blur between custom and general principles: often.

Secondary sources on International Law • judicial decisions • teachings of publicists: recognized authorities on international public law • Both serve as proof of existence of a rule of international law .

States.International Law. and International Organizations .

capacity to enter into relations with others • Now: degree of governmental control may be weak in the beginning. permanent population. if consentual change of government • Also additional conditions .States: When is a State a State Internationally? • Recognition of new state • Old: defined territory. effective government.

of New Recognition of States: Dissolution of USSR .Ex.

of New Recognition of States: Dissolution of USSR .• New guidelines: Ex.

Recognition in US practice • Stems from presidential power to “receive Ambassadors and other public ministers” • Exclusively an executive branch prerogative (not banks. or companies) • Recognized states have a right to: • Bring a law suit in US courts • Claim sovereign immunity in US courts and receive diplomatic protection .

International Organizations: Characteristics • Institutions established by treaty • Composed by states and/or international organizations • Regulated by international law • Have legal rights as organization .

International Organizations: Legal Issues • Membership criteria • Voting issues • Budgetary issues .

states • Universal organization (in scope and function) • Responsibilities: UN . 1945 – multilateral treaty and charter which is UN constitution • Initially 54.• October 24. now @ 200 ind.

>50% for all others .UN • Debate over intervention in internal affairs of member-states: prohibited unless authorized by Security Council • UN charter has supremacy over all other state’s international obligations • Voting procedures: SC: unanimous. GA: 2/3 for important decisions.

all others are recommendations • UN resolutions adopted by SC are biding for all if all SC members agree there is a threat to peace or act of aggression: UN SC resolution to impose sanctions on Iraq in 1990 .UN • Very few UN resolutions adopted by GA are binding (decisions on budgetary matters).

Regional International Organizations • Same as Intergovernmental organizations. ASEAN • Issues of membership . OAS. African Union. except their mandate is to deal with regional problems (general or specific) • Council of Europe. NATO.

Supranational organizations • Unlike other intergovernmental organizations – has power to bind its members by its decisions .

Non-Governmental International Organizations • Third type of subject of International law .

Territorial Sovereignty and Methods Used in Settling Disputes between States • • • • • • • Priority given to peaceful means: Solution by negotiation Enquiry Mediation Conciliation Arbitration and adjudication Judicial settlement .

formal party. parties are not obligated to accept recommendations of third. but existence of report makes more difficult to disregard it .Peaceful Non-Judicial Means of Conflict Settlement • Negotiation: through diplomatic correspondence or face-to-face negotiations • US and Japan trade policy • Inquiry: designation of impartial group to do fact-finding mission. unambiguous finding may put an end to disputes over facts Conciliation: more formal.

ruling may be challenged in national court.Peaceful Quasi-Judicial Means of Conflict Resolution • Arbitration and Adjudication: binding to parties involved. but only in very few special circumstances • Deference: Arbitration is ad hoc panel. not subject to appeal. agreed upon by parties • Adjudication: permanent court with fixed composition and preexisting rules of procedure and jurisdictional standards .

Special Case: International arbitration and individual • Arbitration between the state and the individual (corporation) .

Special Case: International arbitration and individual • International Chamber of Commerce (Paris) • International Center for Settlements of Investment Disputes .

Iran-US Claims Tribunal .

Judicial Methods of Peaceful Conflict Resolutions • Rulings of international courts • Relatively new phenomenon • Central American Court of Justice (1908-1918) • International Court of Justice • International Tribunal for the Law of the Sea .

Judicial Methods of Peaceful Conflict Resolutions • Ad hoc international crime tribunals • International criminal curt • Court of Justice of the European Community • European Court of Human Rights • Inter-American Court of Human Rights • African Court of Human and People’s rights .

Jurisdiction and Immunities from Jurisdiction .

ICJ • Part of UN • All UN members are ipso facto members of ICJ • 15 judges from 15 different states • Elected by UN GA and SC with absolute majorities in both • Contentious jurisdiction and advisory jurisdiction .

Contentious jurisdiction • Only to disputes between states which have accepted court’s jurisdiction (on ad hoc. or unilaterally) . through treaty provision.

US and ICJ jurisdiction • US nominally accepts ICJ jurisdiction over its actions and actions of its nationals but with very serious reservations • Connally Amendment (Texas Senator) • US excludes from jurisdiction of ICJ disputes over matters in domestic jurisdiction of US as determined by US • Self-judging rule: US and not ICJ decides what is a domestic and what is in international dispute .

US and ICJ jurisdiction • 1985: declaration of US termination of acceptance of ICJ jurisdiction .

US. ICJ and National Security Considerations • US claims that matters related to national security and self-defense must be excluded from ICJ jurisdiction (hence its decision to withdraw after US-Nicaragua litigation) • Problem: when is a matter a security concern? .

Tanzania) .Other Important Courts and Their Jurisdictions • Ad Hoc International Criminal Tribunals • ICTY (Hague) and ICTR (Arusha.

ICC created in 2002 • 100 states signed and agreed that ICC will have jurisdiction to prosecute their nationals suspected in genocide.Other Important Courts and Their Jurisdictions • 2000 Treaty of Rome. crimes against humanity. and aggression . war crimes.

Other Important Courts and Their Jurisdictions • 2005: UN SC referred Sudan to ICC for Darfur • US withdrew in 2002 .

Other Important Courts and Their Jurisdictions: European Court of Human Rights • Established in 1959 • Now all members of Council of Europe are parties to it (Russia too) • Constitutional Court of Europe .

International Law and Specific International Issues .

International Law and Human Rights .

Law on responsibilities of states for injuries to aliens: protects individuals against violation of their rights only when their nationality is not that of offending state • If stateless or national of offending state. individual has protection only of international law of human rights . International law of human rights: protects regardless of nationality 2.International Human Rights Law • Two applicable laws 1.

linguistic minorities under League of Nations • International Labor Organization – international standards for protetion of workers .International Law of Human Rights: History • doctrine of humanitarian intervention (DHI) – Grotius • Peace treaties after WWI – formal protection of national. religious.

gender. 55) – protection of individuals for their intrinsic value • UN member obligations: promote universal respect and observance of human rights for all without distinction as to race. religion. or language • UN members to take joint and separate action to guarantee these rights .International Law of Human Rights: History • UN charter (art.

217A. slavery. education. but acquired status of customary international law (esp. discrimination) • But also positive rights to work. health care (not specific enough) .International Law of Human Rights: History • Universal Declaration of Human Rights (GA Res. freedom from torture. 1948): non-binding. arbitrary detention.

much more precisely delineated rights (required ratification) US ratified only in 1992 • 1966: UN International Covenant on Economic. and Cultural Rights – positive rights guaranteed only if resources are available – not ratified by US .International Law of Human Rights: History • 1966: UN International covenant on Civil and Political Rights: rights of selfdetermination and other. Social.

European Human Rights Law and Institutions • European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) • European Court of Human Rights .

Inter-American Human Rights Law and Institutions • Charter of the OAS and American Convention on Human Rights • US. Canada. and Commonwealth of Caribbean states did not ratify Convention .

3 government and insurgents to treat each other humanely .International Human Rights: International Humanitarian Law • Applies to situations of international armed conflict and (occasionally) internal armed conflict • 1949 Geneva Convention ratified by > 190 states: protection to victims of war • Applies mostly to international armed conflict • For internal conflict – only art.

even in US (next slide) .Humanitarian Law: War Crimes and Crimes Against Humanity • ICTY and ICTR – based on Geneva Convention and Nuremberg Tribunal • International Human right law thus has practical applicability.

Human Rights and Humanitarian Law: Practice • Handan vs. Rumsfeld (2006) .

International Environmental Law .

Common Heritage and Common Concern of Humankind 2. Prevention of Environmental Harm .Principles of International Environmental Law 1.

Principles of International Environmental Law 3. Precautionary Principle .

Principles of International Environmental Law 4. Polluter pays 5. Principle of Common but Differentiated Responsibilities .

Principle of Intergenerational Equity .Principles of International Environmental Law 6.

protecting flora and fauna • Regulation of use of water • But bulk of environmental law -.1960s .International Environmental Law: History • Late 19th century: first interstate agreements regulating international fishing.

• 1972 UN Stockholm Conference (113 heads of states) • Declaration on Human Environment: politically binding principles to be followed by governments in preserving human environment. but recognized economic realities limiting environmentalism • Also adopted politically binding Action Plan: creation of UNEP • Numerous more specific conventions in 1970s and 1980s International environmental law: History .

International Environmental Law: History • 1992 Rio Conference (172 heads of states): conventions on climate change and diversity. Agenda 21 • 1997: ICJ addresses dilemmas of economic development and environmental protection (Gabcikovo project of dams and locks on Danube) • not enough to claim ecological necessity in closing economic project • Need to practice sustainable development .

Ecodevelopment – Sustainable Development • 2002 Johannesburg Conference • Prospects .

country can be reported to committee • Warning.Ozone Depletion Treaty • 1987: Montreal Protocol on Substances that Deplete the Ozone layer • Reduction of production of ozonedepleting chemicals • Non-compliance procedure: if having a difficulty in meeting requirement. suspension of rights and privileges and assistance .

2% below 1990 levels by 2012 • Controversies • “emission trading. not environmentally effective • With Russia signing it in 2005. problem of noncompliance • US: treaty is not scientifically-based. unfair burdens. farmland) which reduce emissions. in effect Kyoto Protocol .• Reduction of carbon dioxide emissions by 5. rangeland.” how to count “carbon sinks” (forests.

1992 Pact on Biodiversity • Protection of biodiversity is responsibility of national governments • But genetic resources have economic value (biotechnology) • States should provide access to such resources for environmentally sound uses • States should share in a fair and equitable way results of biotechonology with the state providing resource (US objected) .

International Law and the Use of Force .

General Principles • The use of force is prohibited in international relations • Article 2(4) of UN Charter: • “All members shall refrain I their international relations from the threat of use of force against territorial integrity or political independence of any State” .

What it means • Armed reprisal by a state to punish unlawful act of another state is not permissible under international law • Or • As long as it does not threaten territorial integrity and political independence. force can be used for protection of human rights (few agree with this) .

Eritrea. and Uganda in violating sovereignty of other states even then motives were good What it means .• ICJ ruled against UK.

Another General Principle • Inherent Right of Self Defense • Recognized as legitimate (article 51 of UN Charter) • Nature of “initial attack” does not need to be conventional (one state or government attacking the other) • Al Qaeda in Afghanistan • US exercised a right of self-defense • UN and intl. community supportive • SC passed 2 resolutions recognizing US actions as self-defense .

Preemptive War as SelfDefense
• With WMDs states and scholars assert a right of “anticipatory” selfdefense • Doubts about ability to predict future attacks, also intent vs. means

Peace Enforcement
• UN has a primary responsibility under UN charter • Originally envisioned that states will enter into agreement with US for their forces to be called up by SC in case of armed conflict

UN Security Operations, 1945-1989
• Rarely invoked because of ideological divide • The only SC authorization to use force in case of breach of peace was in 1950 (N.Korea attacked S. Korea), when USSR boycotted SC

UN Security Operations in the 1990s
• More active in authorization • 1990 Iraq’s Invasion of Kuwait: UN authorized states to use all necssary means to uphold its resolution for immediate withdrawal • 2003 US and UK invasion of Iraq: plausible, but unpersuasive justification

UN Security Operations in the 1990s • 1990s: authorizations to use force to address human rights violations • 1992 UN authorization for US-led intervention in Somalia • 1993 UN authorization for NATO air strikes in Bosnia • 1994 UN authorization for France to intervene in Rwanda • 1994 UN authorization for US to intervene in Haiti .

What do you think about International Law and US foreign Policy .

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