International Law

Anders Henriksen
Third Edition

CHAPTER 1

Chapter 1 notes:

International law = legal issues of concern to more than one state

High state trust = International law works well

High state distrust = International law works poorly, less respect for institutions etc.

International law regulates many areas. Subdivisions into law of the sea, human rights,
enironmental, deconomic and armed conflict. With distinct institutions and practices and
adjudicatory bodies.

adjudicatory bodies = one or more neutral officials who hear evidence or argument offered by a
party or parties and who render a judgment affecting a party's interests in a particular matter.

Experts on one subject now need to be familiar with the law on separate subjects as they often
intersect, for example human rights & laws of war & international criminal law.

International law = very different from national legal systems

No central authority overseeing all international law, legal actors create interpret and enforce the
laws.

1.2.2

International law as we see it now is connected to the birth of nation states in europe. (1648
peace of westphalia).

Goal of creating states of equal legal importance, cleat unquestionable authority (not empires or
religion)

Spread to the rest of the world, still key concept.

1.2.3 - Positivism 1800s

Positive law, Consensual theory = unless states consent, they can act as they please.
Emergence of institutions and formal agreements, voluntary in theory, 1860s-1910s - limits of
private property seizure at sea, banned explosive bullets, only aim of war was to defeat armed
forces etc.

1.2.4 Interwar period

Attempt to create league of nations to maintain world peace

Court of International Justice (PCIJ) established, no compulsory jurisdiction, forerunner to

present day International Couth of Justice (ICJ)

1.2.5 after ww2

First war crime tribunals - precedent in international criminal law

League of Nations > United Nations based on equality between member states and self
determination in interal matters.

Security council tasked with maintaining peace, authority of forceful measures.

Cold war ruined things, security council was inactive until the collapse of the USSR

First successful sanction was ousting iraq from kuwait in 1991 - starting to live up to promises.

General assembly - All members has a voice and concerns.

1960 - declaration to grant independence to colonies, self determination, stop colonialism, 80

former colonies are independent now

ICJ replace PCIJ and gradually became more important

UN = umbrella for international organizations (International Monetary Fund & World Bank (loans
to developing countries), World Trade Organisations (trade rules), World Health Organisation
(respond to health emergencies, monitor health risks).

NATO important, EU an example to maintain peace, others are AU (african union), organisation
of american states (OAS),

1.2.6 the present

Post ww2 international law driven by west, using its dominance to create a rules based
international order to prevent chaos like in ww2.
International instituions based on western values and open free economic markets and
individual rights.

This is now under stress, new non western powers china, brics (brazil, russia, india, china, south
africa) etc. Setting up rival institutions.
More disagreements, crimea 2014, china land grab i south china sea.

Increased interstate rivalry, revival of nationalism, brexit and trump, backlash against post ww2
instituions, states wanting more self governing.

1.3 Structures of international law

1.3.1 A society of sovereign nations states

National law cant deal with disputes involving other states. Answer is international law, a
supplement to national law.

Two ways to become international law issues:

Due to its content, dealt by “the international law of coexistence”

Example: When interests of two states collide makes an issue international - Who gets to use a
river running through two territories

Due to its form dealt with “the international law of cooperation”

Example: When states agree on a treaty to deal with things otherwise regulated by international
law - an agreement on how to deal with endangered species living in both states

1.3.2 - the international law of coexistence

Also called “general international law”

Primarily Horizontal - The way states interact with and between each other, not how a state
deals with matters inside the state.

Such matters can be international law, because states have decided to make them a part of it
(part of the law of coexistence)

Coexistence does not try to make states be friends, just to ensure they pursue their interests in
a way that respects the rights and sovereignty of other states.

1.3.3 The international law of cooperation

Issues MADE international by treaties.

Newer than coexistence

Int Law started promoting “societal goals”, how states did things internally - things like eu law,
human rights, environmental law, economic law.

Cooperation is “optional”, because of this, pace to deal with these issues are very slow, since
states must agree to legally binding agreements

1.4 Basis of international obligation

How can a state be sovereign and bound by international law at the same time? Either a state is
not bound by international law and therefore sovereign, or it is bound by international law and
therefore not sovereign.

In prative, state understand they are part of a society of states and benefit from peaceful
coexistence and that regulations should exist. They can disagree on the content, but states
rarely if ever deny being bound by international law.

If accused of torture, the state does not usually argue that the prohibition of torture is not
binding, but instead deny the allegations or justify its actions.

(self reflection): To be part of all the benefits of the international system, states must accept that
international law exists, otherwise they become isolated, trade halts and their society suffers
immensely, North Korea for example.

1.5 The relationship between international and national law

A few points about the relationship between int law and national law:
1. international law asserts its own supremacy over national law
2. how international law is applied in national legal systems by the legislature and national
courts
Two approaches dominated legal theory: Monism & Dualism

Monism: International law and national law become one and form a single legal system.
International law can be applied directly in the national legal system of states, and that
international law is the one that wins in the case of a direct conflict between them.

Dualism: National and international law are separate, neither one creates rules for the other, if
international law is applied domestically it has to be translated and implemented into the
national legislation.

Theoretical debate has moved away from dualism and monism, and instead turned to pluralism.
Pluralism: Pluralism in international and national law recognizes a complex, interconnected
world of multiple legal systems, emphasizing cooperation and flexibility rather than hierarchy. It
moves beyond monism and dualism, advocating for a nuanced approach that values diversity
and adaptability for legal systems in different states.

1.6 The issue of enforcement of international law

Since WW2 there are lots of courts competent of hearing complaints and ruling on them, ICJ
being the most famous but there are many more for other specific examples.

The problem comes with enforcement or “policing”. One option is the UN Security Council, but
its role is not to enforce international law but uphold peace and stability. It’s more political and
strategically influenced rather than by law. If they take action, they can use force and deploy UN
personnel to stop violations of international law or establish criminal tribunals to prosecute
serious international crimes. This is however quite rare.

The EU has it’s own system of enforcing breaches where they can sanction their own members.

However, usually the state damaged by the breach of international law has to handle it on its
own. For example, canceling treaties the other side broke, deploying legal unfriendly measures,
halting foreign aid, suspending trade, cutting diplomatic ties, public condemnation, encouraging
allies to do the same etc.

However, most states recognise the importance of reputation in the international system and the
benefits received by being seen as a member that abides the rules and keeps their promises
and try to uphold international law. It is expensive to be seen as unreliable and untrustworthy in
today's global economy.

1.7 Alleged inadequacy of international law in the 21st century

Criticism against the system is that it doesn’t do enough to create a more just and equitable
world and alleviate distressed civilians populations.

The author argues that international law was created motivated for upholding international order
and stability.

When there is tension between “justice” vs stability and order, international law often prioritizes
stability and order.

Order also has value itself, as it is hard to reach societal goals without order and stability.

“Indeed, when considered through a lens of stability, the many

unwarranted inroads into state sovereignty in recent years—whether in the
form of Russian interferences in Ukraine or Western-led ‘humanitarian
interventions’ without UN backing—constitute one of the most serious
threats to international society.”

CHAPTER 2
Reading session 1

1. This chapter discusses the legal sources in international law and takes its
point of departure in article 38 of the Statute of the International Court of
Justice.
2. It covers the primary sources of international law: treaties, customary
international law and general principles.
3. It also provides an overview of the secondary sources of international
law as well as a description of unilateral statements.
4. It discusses legal sources of a higher normative value and touches upon
the issue of so-called soft law and the legal value of, among other things,
resolutions and declarations from the United Nations General Assembly.

2.1 Introduction to Sources of International Law

Sources of international law: These are the rules or guidelines that form the foundation of
international legal practices. Just as countries have their own laws, there are also rules that
countries follow when interacting with each other on the global stage.

Role of sources: They serve as the tools or resources that lawyers use to find solutions to
international legal questions that national laws cannot answer.

Complexities in international law: Unlike laws within a country, where there's a clear hierarchy
and methods to find legal information (like looking at government laws or court decisions),
international law is more complex. This complexity is due to the absence of a single global
government or court system that has authority over all countries.

Legal sources vs. non-legal standards: It's important to distinguish between what's legally
binding (must be followed) and what's not (like moral or political principles). International law
focuses on legal norms, even though moral values can influence it.

2.2 Article 38 of the Statute of the International Court of

Justice
An attempt to list the sources that should be used by the ICJ

In practice other sources have been used.

Article 38 identifies two kinds of sources:

Primary sources: Creates new legal rights and obligations (like treaties and customs)
Secondary sources: Things like court decisions or academic writings, giving guidance on how
to interpret and apply the existing law.

2.3 Conventions (treaties as a legal source)

Treaties/Conventions: Agreements between states that create legal rights and obligations under
international law. The only way for two or more states to enter a formal legal relationship.

The most important legal sources are treaties.

They are consent based, and states must hold what they have promised.

Bilateral treaty: Between two states

Multilateral treaties: Between larger groups of states.
Constituent treaties: When establishing an international organization, joining the organization
means accepting that for example in the UN the security council can create resolutions that are
binding for all members without everyone consenting. A condition of being in the organization is
accepting this.

2.4 Custom as a source of international law

2.4.1 Introduction

Custom: a key source of international law since there is no global law-maker, it comes from
legal principles that are commonly used in interstate practice

A customary rule is created when practices and norms, over time, gain the status of legal
obligations.

International customary law requires:

- General consistent practice among states - The objective element
- The belief of these states that it is legally binding - The subjective element

Customary law is controversial, with much theoretical debate about its theoretical complexity.
It’s difficult to say when a custom ceases to be optional and becomes legally binding.

Customary rules bind all states, including new ones even if they were not around when the
practice became legally binding.

2.4.2 The objective element - state practice

For something to reach the requirement to satisfy the objective element - a consistent repetition
of a particular behavior, over a considerable amount of time states have acted in an identical
manner when confronted with the same facts.

To qualify, consistency, duration and generality must be sufficiently fulfilled, below is an example
not found in the text:
Consistency: States consistently exercised control over the airspace above their territory,
asserting the right to regulate overflights and to deny or grant permission for foreign aircraft to
enter their airspace.
Duration: The practice developed gradually over time, especially after the advent of flight in the
early 20th century, as countries began to assert control over their airspace to protect their
national security and sovereignty.
Generality: The practice was widely adopted by countries around the world, reflecting a general
consensus on the importance of national sovereignty over airspace.

2.4.3 The subjective element - opinio juris

To become legally binding the objective elements must not only be satisfied, but also the belief
that the things the state are doing is because they believe it is legal. Usually the objective
element is enough but the subjective requirement can be looked at if a state initiates a new
practice and obviously doesn’t believe it is permitted or required by law.

It’s pretty controversial on how to prove these things.

2.4.4 The relationship between custom and treaty law

If something is customary law it applies to everyone, if a treaty is signed between a few nations
with the same content as the customary law, the treaty law does not apply to nations that did not
sign, however the customary law still applies, so there is no practical difference.

Sometimes things outlined in a treaty between nations can become so widespread it becomes
codified into customary law so that it affects the nations even outside the original treaty.

If a customary law develops after a treaty, which contradicts the treaty, it is unclear which one to
follow. In practice, the newest custom/treaty overrides the older one or the custom/treaty that is
the least general will override the more general custom/treaty in that particular area. It is pretty
unclear.

2.5 General principles as a source of law

The third source the ICJ can use in legal arguments is that of “general principles of law
recognized by civilized nations”.

This was implemented to avoid cases where a ruling could not be made because there was no
treaty or customary law covering that area, a “gap filler”.

The most relevant of these is “equity”, fairness or justice. The court has some freedom to
consider this part of international law if necessary.

Another part is that states must do their due diligence to prevent activities on their territory that
hurts other states. (the no harm principle), regardless of whether the harmful acts are illegal or
not. In practice, the larger the risk, the larger the responsibility to intervene.

Covid-19 as an example, the due diligence principle obliged china to do their utmost to contain
the virus from spreading to other states. Only effort matters, not results.

2.6 Judicial Decisions

ICJ decisions are only binding to the parties of the case, but are important in clarifying
international law or even developing it in areas where it was unclear.

ICJ does not have to follow previous rulings but attempts to maintain consistency.

Decisions by other courts under the UN umbrella or high instance national courts can play a role
in interpreting international law as well and could be looked at by the ICJ to maintain
consistency etc.

2.7 Scholarly contributions and the ILC

Academic thinkers and writers previously influenced international law a lot, they play a smaller
role now, and are rarely referenced by name but there might be mention of academic analysis in
general.
Their role now is more to influence those who practice, interpret and develop international law,
for example by commentary on cases or theoretical situations.

International Law Commision (ILC) have a unique role:

Develop and clarify international law

Includes members from all major legal systems, nominated by member states and elected by un
members, diversity is essential, individuals represent themselves not their countries

The process is:

The ILC picks a subject that needs attention in international law
A team focused on that issue is set up
A special Rapporteur is chosen and responsible for leading the group, gathering information,
studying the issue and making suggestions on what to do about it.
From these recommendations ILC might propose new treaties or changes with commentary
explaining their reasoning.
The ultimate decision of implementation is with the member states.

They have played a big role in sea law, diplomatic law, human rights and treaty law.

2.8 Unilaterial Statements

Cases from the IJC and PCIJ show that a state making a statement can create obligations
under international law.

For example if a leader promises in public not to make a claim on a piece of territory and says
that it is another nations territory, and then tries to argue in court that it in fact is their territory,
the court can use the original statement, the original unilateral statement, as a legally binding
obligation and therefore rule in the other nations favor.

2.9 Hierarchy of sources

In normal legal systems, there is a clear hierarchy of how important different types of legal
norms. For example that state law overides communal law if they are in conflict.

In the international system, there are only two categories, primary and secondary sources, all
legal sources officially carry the same weight.

Primary sources: Creates new legal rights and obligations (like treaties and customs)
Secondary sources: Things like court decisions or academic writings, giving guidance on how
to interpret and apply the existing law.

There are three exceptions to there being no hierarchy:

Jus Cogens: Fundamental rules that no country can ignore or change, such as bans on torture
and genocide. They are the top norms in international law.

Erga Omnes: Duties every country has towards the global community, like preventing crimes
against humanity. These obligations are universal.

Obligations under the UN Charter: Specific commitments countries agree to, which can become
very important, especially when they reflect universal values or essential human rights.

READING SESSION 1 OVER - PAGE 138

READING SESSION 2 STARTED - GOAL Chapters 2, 4, 7, 12.

2.10 non binding commitments and concept of soft law instruments

An easier way to achieve the same results as a binding treaty is using politically binding
treaties. This means they are a way to come to an agreement between states that
cannot result in legal consequences but instead paying the political price of ruined
reputation etc.

Soft law can be used as evidence of subjective element of customary law.

SUMMARY FROM THE BOOK CHAPTER 2

The international legal society has its own legal sources and the discussion
therefore takes its natural point of departure in article 38 of the ICJ Statute.
According to that article, sources of international law can be divided into
those of a primary and those of a secondary nature. While treaties, customary
international law and general principles constitute the primary and
undoubtedly most important legal sources, judicial decisions and scholarly
contributions are listed as merely secondary sources of law. Article 38 is not
exhaustive, however, and international legal answers may be found elsewhere
too, most notably in unilateral statements by states. While the sources of
international law are generally considered to possess the same normative
value, exceptions do exist. Examples include norms of a peremptory
character (jus cogens), erga omnes obligations and those legal obligations
that derive from the UN Charter. ‘Soft law’ refers to commitments
undertaken by states that are not legally binding. Depending on the
circumstances, soft law commitments may pave the way for the creation of
customary international law and thus hard law norms.
Chapter 4 - The actors in the legal system
1. This chapter introduces the various actors in the international legal system that possess
rights, powers and obligations in international law.
2. It presents statehood and the criteria for the creation of new states, and
discusses the (limited) legal significance of recognition.
3. The chapter also discusses the modes by which a state can acquire title
to new territory and provides an overview of the main issues of state
succession and state extinction.
4. The chapter presents an overview of the legal personality of non-state
actors, most notably international organizations and individuals

4.1 Intro

LEGAL PERSONALITY: refers to the capacity of an entity (like a state, organization, or

sometimes individuals) to have legal rights and obligations. Entities with legal personality can
enter into agreements, sue, and be sued in international law. This concept is crucial for
understanding who gets to participate in international legal processes and how.

States are not the only actors.

There are many actors. They do not have the same obligations, rights or power.

International law is more interested in individuals and organizations more recently.

Short summary of actors since I have no time left:

The state - The most important, recognition of what a state is is disputed, governments and
states are different.

Montevideo Criteria is: A permanent population, a defined territory, a government and a capacity
to enter into relations with other states. Sometimes requirements are fulfilled but states reject
that they arguably cant be called a state, like isis maybe.

Self determination important concept, exploded during decolonization.

Problem is what gives a section of a state the right to secede from the state for self
determination reasons. Kosovo example, did they have the right to secede?

New territory can be purchased governed by contract law but self determination must be taken
into account. Nature can create new territory from like volcanic eruptions. An agreement to
move state lines, for example if the flow of a river changes. States can occupy land that has
never been the subject of a state before.
States can emergence when old states disappears. One of the most complicated aspects. For
example the soviet union and yugoslavia. Can also be when two states merge. Clean slate
approach, new states are not hold to the old states treaties etc.

A state may cease to exist if it splinters into new states or itself decides to declare they are no
longer a states. Voluntary split or merge also possible.

ACTOR 2
International organisations

Created by treaty, not the same as NGO

ACTOR 3
Individuals

Posess rights and obligations that comes from the state they are in.

Also human right law gives rights to individuals.

ACTOR 4
Territorial entities that are not states but somewhat treated as such, Taiwan, Kosovo, Hong
Kong.

ACTOR 5
Groups of individuals
Collective entities might also have legal personality.
Indigenous groups mightbe granted rights
Insurgent groups or national liberation movements might also get rights and obligations in
international law

ACTOR 6
Private corporations
Recent focus on whether they have rights and obligations or not under international law

ACTOR 7
NGOs like amnesty human rights watch, they have influence, but have no rights or obligations
under international law, red cross exception as it has a mandate to provide assistance to
victims in armed conflict

ACTOR 8
Debate about whether nature can possess rights under international law.

Summary from the book:

In international relations study, "legal personality" refers to the capacity of an entity (like a state,
organization, or sometimes individuals) to have legal rights and obligations. Entities with legal
personality can enter into agreements, sue, and be sued in international law. This concept is
crucial for understanding who gets to participate in international legal processes and how.

Chapter 5 - Jursidiction
Reading session 1

Quote:
1. This chapter discusses the international legal concept of jurisdiction as
well as the content of the relevant legal principles.

2. It presents the difference between, respectively, the jurisdiction to

prescribe and the jurisdiction to enforce and the main elements thereof.

3. The chapter analyses the different principles of prescriptive jurisdiction

(the principle of territoriality, nationality, universality, protection and socalled
passive ‘personality’) and discusses the issue of concurring
jurisdictions as well as jurisdiction on ships and aircraft.

4. The chapter also discusses the prohibition on enforcement on the

territory of another state as well as the legal consequences of violating that
Prohibition.

5.1 Introduction
Sovereignty and Independence: Sovereignty means a state has complete control over its
territory and can govern itself without outside interference.

Territorial Integrity: International law restricts a state from exercising its sovereignty or
enforcing its laws within the territory of another state without permission.

Jurisdiction is the authority to create and enforce rules and dish out consequences.
- There is jurisdiction to prescribe (make law)
- There is jurisdiction to enforce (physically ensure compliance with the law)

- States have jurisdiction to prescribe laws on conduct outside their territory

- States do not have jurisdiction to enforce laws outside its territory, without the permission
of the sovereign state controlling that territory.
The principles of jurisdiction aim to balance the rights of states to govern themselves vs the
rights of other states not to have their sovereignty encroached on. This is meant to reduce
conflicts between states.

The source of jurisdiction is state sovereignty and the role of international

law is merely to limit the exercise of jurisdictional powers

5.2 Jurisdiction to prescribe

Territoriality principle: A state has jurisdiction over all acts committed on its and individuals
located on that territory. (Also air and sea). Does not work if an offense is committed on another
territory and that individual then enters the states territory.

Cross border crimes:

Objective Territoriality: Jurisdiction of the state where the crime was completed no matter
where it was planned etc.
Subjective territoriality: Jurisdiction for the state where the crime was initiated or planned no
matter where it was completed.

Subjective approach good for fighting transnational crime such as cybercrime.

5.2.3 Jurisdiction on the basis on nationality

Active personality principle: States have jurisdiction over their own nationals no matter where
they are located. Before human rights laws international law had no interest in how a state
treated their own citizens. Relevant for example for prosecuting citizens joining terror groups
and committing crimes abroad.

5.2.4 The passive personality principle

Passive personality principle: States can claim jurisdiction if a national is the victim of a crime
abroad.

This is controversial, a potential offender cannot be expected to know what behaviour is

acceptable in every country if they are interacting with a foreigner.

It is still sometimes claimed in serious offenses such as terrorism.

5.2.5 Protective jurisdiction

Protective jurisdiction principle: A state can claim jurisdiction over actions that negatively
affect its interests, regardless of where the action happens or who commits it.
This principle is based on the sovereign right of states to manage their affairs without external
interference.

To invoke protective jurisdiction, there must be a genuine threat to a vital interest of the state.

It hasn’t been very controversial because it's usually applied to serious offenses universally
condemned, such as drug smuggling and international terrorism.

5.2.6 Universial jurisdiction

Universal jurisdiction principle: International law see some crimes as so serious that any
state can claim jurisdiction to prosecute no matter where they have been committed and by
whom.

Originally used to fight piracy, now it appears to be limited to genocide, crimes against humanity
and serious war crimes.

(self reflection) Hamid Noury was recently convicted in sweden over serious crimes against
humanity committed in Iran.

5.2.7 Concurring/overlapping jurisdictions

Jurisdictions often overlap with several states having legitimate claims for jurisdiction under
different principles.

This can cause friction if states are too aggressive with claiming their jurisdiction.

The territorial principle is often most “valued” compared to competing claims of jurisdiction.

There is no formal hierarchy. Claims should be “reasonable”. The US has been urged to limit
their aggressive jurisdiction claims in the past.

This becomes more of a diplomatic or political issue between states as this point (in my opinion)

5.2.8. Jurisdiction over aircraft and ships

States har control over the airspace above their territory and territorial waters.

The state the plane is registered at has jurisdiction to apply it laws on board while in flight and
other states may not interfere.
Captains have the authority to use force to deal with individuals committing a crime that
endangers passengers.

Summary from book:

In international relations study, "legal personality" refers to the capacity of an entity (like a state,
organization, or sometimes individuals) to have legal rights and obligations. Entities with legal
personality can enter into agreements, sue, and be sued in international law. This concept is
crucial for understanding who gets to participate in international legal processes and how.

CHAPTER 7 QUICK READ’

State responsibility

1. This chapter discusses the international law of state responsibility as

primarily reflected in the 2001 International Law Commission’s Articles
on the Responsibility of States for Internationally Wrongful Acts.
2. It discusses the core principles of state responsibility, including the dual
requirements of wrongful conduct and state attribution.
3. The chapter provides an overview of the means whereby a state will be
held internationally responsible for wrongful conduct (attribution) and the
different circumstances that preclude the wrongfulness of conduct
otherwise in violation of an international obligation.
4. It also analyses the primary consequences that flow from international
responsibility for wrongful conduct and when a state may invoke the
international responsibility of another state, including the principles of socalled
‘diplomatic protection’.

Rules for what happens when rules are broken need to exist.

State responsibility + International relations responsibility most important.

Primary rules: What is allowed

Secondary rules: What happens when you break a rule
Who can the rule breaking be attributed to:
State and its organs
Organs exercising govermental authority
Organs on loan from another state, like health services, attributed to host country
Organs committing a crime even if acting against orders from other authority
Individuals: If they are acting on orders from the state or under the direction of the state
Insurrectional movement: Crimes not attributed to the state
If a state adopts the behavior of individuals as their own (teheran hostage crisis)
Aiding a state in committing a crime if they know that it would led to a crime that would have
been a crime in the state assisting the criminal state

Circumstances where behavior violates international law but it is not considered wrongful.

If a state consents to another's states wrongful act

If an otherwise wrongful act is committed in self defense

When a state needs to use a countermeasure usually not allowed to provide a stop to another
states wrongful behavior in certain cases it can be considered not wrongful

Force majeure - If it is materially impossible to uphold an obligation to an unforeseen event or

irresistible force beyond the control of the state.

CHAPTER 12 The Peaceful Settlement of Disputes

- QUICK READ
1. This chapter examines the most important methods for the peaceful
settlement of disputes in international society.
2. It introduces a number of non-adjudicatory settlement mechanisms and
provides a brief overview of the role played by the UN.
3. The chapter also discusses the adjudicatory means of settling disputes,
including international arbitration.
4. It discusses the competences and powers of the International Court of
Justice and analyses issues of access to the Court and the Court’s
jurisdiction in contentious cases and competence to issue advisory
opinions.

The international legal system contains a range of methods by which states

can resolve their disputes in a peaceful manner. While some mechanisms are
of a diplomatic and non-adjudicatory nature, there are also a number of
adjudicatory methods of dispute settlement available. Diplomatic methods
include negotiation, mediation and conciliation. The most important
adjudicatory means of settling disputes are arbitration and reliance on a
number of permanent international courts and tribunals. The most important
of the latter is the ICJ, which is the only international court with general
jurisdiction to deal with interstate disputes. The ICJ deals with contentious
cases and has the competence to issue advisory opinions. The jurisdiction of
the Court in contentious cases is based on consent from the state parties
involved. A number of more specialized international courts and tribunals
also exist.

(FÖRELÄSNING 3) CHAPTER 13 - The

International Regulation of the Use of Force

Main topics:
When, and for what purpose a state may use force against another state - jus ad bellum

Legal framework from 1945 UN charter and the prohibition on the use of force in article 2

The role of the Security Council to maintain international peace and security

Examination of the use of force by one nation without the consent or cooperation of others,
particularly in the context of the right to self-defense as outlined in Article 51 of the United
Nations Charter.

13.2 The UN Charter and the prohibition on the use of

force
Jus ad bellum = When and for what purpose a state may use force against another
Jus in bello = How military hostilities already initiated must be conducted

This chapter focuses on Jus ad bellum

Jus ad bellum regulates when a state is entitled to resort to the use of force.

The rules are found in the 1945 UN Charter and in customary international law.

Members of the international community may not use force.

Only two exceptions exist for unilateral (a state alone using force) force
The UN Security council authorizes the use of force
The state is defending themselves against an armed attack

The point of the UN is to collectivize the use of force that may be required to maintain
international peace and security. To avoid unilateral force.
Any unilaterial force outside of self defence or sanctioned by the UN Security Council is in
practice illegal under international law.
What IS force?

It is a subject of immense debate.

Generally, historically: armed measures, actions that involve military force

Tallinn Manual 2.0 on Cyber Operations: If the cyber operation have the scale and effects
compared to a non-cyber operation it can be considered force

Article 2(4) of the UN Charter: Prohibits the use of force against the territorial integrity or
political independence of any state - A broader interpretation is that is does not matter if the
target is a state or not

Goal remains the same: Limit force NOT sanctioned by the Security Council

Invitation to use force

State consent can be used to allow other prohibited behaviour, the use of force in this case
UN peacekeeping, Afghanistan NATO presence, campaign against ISIL.

More controversial: When a state has lost substantial part of territory, can they give consent to
invite force from other states? - Syria inviting Iran and Russia, international consensus that
Yemen president can give consent even though ousted and not in control of the capital.

Interference that does not count as force (but can still be illegal)

Assassinations abroad (breach of sovereignty)

Espionage does not violate international law - But methods used might

Violation of non-intervention
Prohibited to perform an intervention in something each state can decide freely.
IF an act attempt to cause change in policy - Coercion does not need to be physical, but
persuasion, criticisms and propaganda are not included.
Example: Contras supplied by US = breach of non-intervention

States that are victims of another states violation of international law may resort to
countermeasures. These can not be force unless the violation is armed attack.

13.3 The Security Council and maintenance of

international peace and security

Security council authorized force does not violate the prohibition against force.
15 states have a seat - China, France, Russia, UK and US are permanent members. Any of the
permanent members can VETO council initiatives.

This is not considered democratic. Suggestions for reform have been advanced. In 1945 the
belief was that the best way to maintain peace was to only resort to it when the biggest powers
agreed.

Security council process:

1.Determine existence of threat or breach of peace or acts of aggresion:

Threat to peace has been interpreted in many ways: Internal conflict, humanitarian crisis,
terrorism, violations of democracy, piracy, arms sales etc. The only requirement is that it can be
argued to be tied to international peace and security.

2.Provisional measures = non-binding resolutions

Telling parties to comply with their demands - Temporary in nature and only recommendations
Example: Call for a ceasefire or withdrawal of troops

3. Non-forcible measures = binding resolutions

They may take legally binding non-forcible measures = There can be consequences if
instructions not followed, but the consequences does not involve force.
Example: Sanctions, severance of diplomatic relations, interruption of economic relations etc.

Sanctions can go wrong and cause humanitarian crisis, more targeted sanctions on individuals
and institutions that cause the issue have been implemented more recently.

3.1 Creative non-forcible measures: Targeting phenomena and not particular people or states
but threatening to international peace “in general”
Example: Like restricting trade of “conflict diamonds”, obliging states to develop watchlists and
gather biometric data on suspected foreign fighters (generally islamist groups).

4.Enforcement under article 42 = binding resolutions with consequences that include

force
If previous measures don’t work, the security council can mandate use of force in the form of
military operations. In the form of coalitions of the willing, or regional organisations.

Limits on Security Council authority

They are bound by the UN's general purposes.
Can only act with threats to international peace.
Implementations of sanctions must respect human rights law, refugee law and international
humanitarian law

Interpretations of Security Council resolutions

Interpretation of resolutions starts with analysis of language use
- Non-binding resolutions (Provisional measures) = words like “recommend”, “appeal”
- Binding resolutions (Non-forcible measures) = words like “decide”, “demands”, “acting
under chapter VII”
- The use of force is accepted (Enforcement under article 42) = worlds like “all means
necessary”
-

Resolution can contain non-binding parts and binding parts

States have used implied authority to use force to justify the use of force
Example: The US & British invasion of Iraq in March 2003. “The council warns Iraq that it will
face serious consequences as a result of its continued violations of its obligations” US and UK
argued that Iraq had not cooperated and that a new resolution with express authorization of
force was not necessary. France, China and Russia disagreed.

Reliance on implied authority is controversial. A resolution should give clear rather than implicit
indication to authorize the use of force. After the Iraq situation the Council has tried to be
clearer. But NATO bombing on Libya is an example where interpretations were used as
justification.

Regional Organizations

The Council can use regional arrangements or organizations to enforce action under it’s
authority. Like the AU in Africa or NATO in former Yugoslavia, Kosovo, Afghanistan, Iraq and
Libya and ECOWAS in liberia and the ivory coast.

The Council is very reliant on regional organizations in practice.

13.4 The unilateral use of force by states

The right to self-defence

The use of force in self-defense is an exception to the prohibition on the use of force in article
2(4).

The scope and interpretation of the right to self defense is one of the most contested areas of
international law.
What is an “armed attack”

The attack must be of a certain intensity. Acts producing or are likely to produce very serious
consequences, such as territorial invasion, human fatalities or destruction on property.
Example: Provision of weapons to rebels or small scale border incidents do not reach the
required intensity

The nature of the attack is not specifically mentioned - It therefore includes cyber attacks if the
consequences are serious enough

The requirements for self-defense:

Some argue for the: accumulation of events doctrine - Where incidents not of enough intensity
may be weighed together to constitute an armed attack. (Israel has been a strong advocate)

Some argue the attacks on civilians abroad because of their nationality can constitute an armed
attack on their home state. (Israel and the United States has been strong advocates)

Post 9/11 most agree an attack by a private actor (terror group) can trigger self-defense if the
host state can or will not stop the private actors activities.

Right to self defense triggers when an attack occurs. Despite the clear wording, there is an
overall agreement that states can resort to anticipatory self-defense if the attack is imminent.

This is not the same as pre-emptive or preventive self-defense to remove a possibility of a

future attack. This is unlawful. Outside of Israel and The United States this right has little
support.
Example: Israel has broken this international law. Ex. Attacking an Iraqi nuclear reactor that
Israel feared might be used to develop nuclear weapons in the future. The war on terror was
based on a proclaimed right of pre-emptive or preventive self-defense.

A state may exercise the right to collective self-defense; defending another state that was a
victim of an armed attack.

The Security Council and Self-Defence

Self-defense must be necessary if peaceful means are not possible.

The self-defense must be proportional - The state can not do unreasonable or excessive
things that were not necessary to achieve the aim of stopping the attack - Until the UN
Security Council can seize control and offer protection and authorize the use of additional force,
if deemed necessary.

If the Council is unable to agree, or does not adopt a binding decision, the self-defense is
entitled to continue until that occurs.

13.6 Contentious use of force

The non security council authorized use of force to rescue nationals

abroad

No universal agreement on legality of this practice.

Justification can be either the triggering of self defense or argue for the existence of a right in
customary international law.

One argued criteria for rescuing nationals abroad to be lawful:

- A genuine threat to the safety of the nationals
- The host country does not protect the nationals
- No goals other than the rescue of the nationals may be pursued

The non security council authorized use of force to prevent mass atrocities
- Humanitarian intervention.

The legality of humanitarian interventions is a recurring issue, even though it is not hard to make
a moral argument, it is hard to see these as lawful. Only three states have argued for the
existence of a right to humanitarian intervention in law.

Reference is often made to “The Responsibility to Protect” (R2P) found in some UN

documents, this developed after the moral failures of the international community in Rwandan
and Bosnian genocides. The doctrine is based on the idea that right to sovereignty comes with
an obligation to protect civilian populations from atrocities and that all states have responsibility
to prevent atrocities.

Still, for use of force to be lawful, military measures may only be undertaken after Security
Council sanction.
LECTURE 4 (International Humanitarian Law)
CHAPTER 14 - The law of armed conflict
The last chapter focused on jus ad bellum, a lawful situation to initiate conflict. This chapter
discusses the following:

1. jus in bello: How military operations must be conducted to be lawful

2. Relevant sources for and application of law in different conflicts
3. An overview of battlefield status, distinction between combatants and civilians, the
conduct of hostilities, the principle of distinction and the prohibition against unnecessary
suffering for combatants
4. Regulation of international conflict and occupation, and non-international conflicts and
the relationship of law of armed conflict and human rights law in times of conflict.

Jus ad bellum and jus in bello are distinct and must be applied independently. All parties in a
conflict must comply with jus in bello, regardless of who violated jus ad bellum or who is the
victim of aggression.

The law of armed conflict takes a pragmatic approach - Rather than outlawing war, it seeks to
minimize human suffering when it does occur. - A balance between military necessity and
human suffering.

14.2 Sources of international humanitarian law / law of

armed conflict
End of 1800s - Hague Conferences - The hague regulations - conduct of hostilities and
occupation
1800s - First humanitarian considerations.
1863 - The creation of the Red Cross (ICRC), providing medical assistance - Helped all sides of
the conflict - The start of humanitarian law development, a move from law of armed conflict
1923 - First convention of POWs
1920s-1930s - Lots of weapon conventions

1949 Geneva Conventions

I =The Condition of the Wounded and Sick in Armed Forces in the Field
II = The Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
III = The Treatment of Prisoners of War
IV = The Protection of Civilian Persons in Time of War
1997 added to the Geneva Conventions:
AP I = Protection of Victims of International Armed Conflicts
AP II = Protection of Victims of Non-International Armed Conflicts
Hague Convention regulates the means and methods of warfare and occupation.
Since then - A bunch of treaties
The basic rules in the major treaties is customary international law and is binding for all
states, certainly the 1907 Hague Resolutions, 1949 Geneva Convention I-IV and most weapons
conventions. With the exclusion of :
- 2008 convention on cluster munitions
- 1997 ottawa conventions (land mines)
These were controversial and states such as the US, Israel, India and Pakistan did not ratify
them.

Older conventions only applied if all involved were parties to the conventions
Newer conventions apply even if another actor in the conflict is not a party to the convention.

Law is often reactionary - Being created based on especially horrible things that happened
during recent wars. Example: WW1 mustard gas, afterwards law develops to prevent this in
future conflicts.

14.3 The application of international humanitarian law

International law used to distinguish between a “state of peace” and a “state of war” based on
formal declarations being the norm.

Nowadays the line between war and peace is more blurry, the application of LAOC (Law of
International Conflict) does not depend on the intentions of the parties, or declarations of war,
these are rare nowadays.

Definition of “armed conflict”

No convention define “armed conflict” - But the ICTY (International Criminal Tribunal for the
former Yugoslavia” stated that an armed conflict exists:
“whenever there is a resort to armed force between States or protracted armed violence
between governmental authorities and organized armed groups or between such groups within
a State”

This definition differentiates between:

- IACs (armed forces of two or more states involved) and
- NAICs (involves fighting between a state and a private organized armed group or
between two or more such groups)
- TACs (a state and a private actor in conflict not confined to the territory of one state)
Unclear how to classify such conflicts

Conflict status may develop over time and require reclassification

Different types of conflicts
International armed conflict

“‘all cases of declared war or of any other armed conflict which may arise between two or more
of the High Contracting Parties, even if the state of war is not recognized by one of them”
The “classic” interstate armed conflict

The majority of IHL is aimed at IACs.

“any difference arising between two States and leading to the intervention of members of the
armed forces” and it makes “no difference how long the conflict lasts, how much slaughter takes
place, or how numerous are the participating forces”

The determination of the existence of an AIC is factual (based on facts, not perceptions or
declarations). Recognition of armed conflict is irrelevant. If one party is not considered a state
but fills the requirements of a state.
Exceptions may apply:
Instances of limited use of force against private individuals in another state for example russian
poisoning in the UK, technically initiated an IAC, but in practical reality, it did not.

Some IACs can contain a state and a non-state actor (peoples fighting against colonial
domination, this has yet to be applied to a conflict)

Ending of a conflict
Historically, conflicts ended with a peace treaty, or clear declaration, these are now rare. In
practice hostilities are terminated on a temporary/permanent basis.
- A ceasefire is a temporary suspension of hostilities, normally for humanitarian purposes.
- An Armistice generally intends to prepare for the permanent end of the conflict.
- Conflicts generally are considered ended what neither of the parties intend to resume
hostilities
Certain obligations kick in after the end of the conflict, for example the release of POWs

IACs and belligerent occupation

Law applying to IACs also apply to cases of total or partial belligerent occupation, even if
there is no active armed resistance. The key aspect is the lack of consent of the occupied to
house foreign troops, no matter why they are there. Example: Invasion vs. previously invited
troops
Different types of conflicts
Non International armed conflicts (NAICs)

Common article 3 covers a minimum that must be applied by all parties in a conflict not of
international character occuring in the territory of one actor that has signed the treaty (High
Contracting Party)

NIACs are NOT:

- Acts of banditry
- Unorganized and short lived insurrections
To become a NIAC these conditions apply to at least 2 parties:
- The level of violence must surpass a certain minimum threshold
- Parties in the conflict must be militarily organized (a certain hierarchy, discipline and the
ability to implement the basics of IHL)

It can take considerable time for an insurrection to be a NIAC, for example in the Syrian war.

AP II expanded to that the parties must only be capable of exercising “such control over a part
of territory as to enable them to carry out sustained and concerted military operations and
implement the Protocol”

Ending an NIAC
According to ICTY (International Criminal Tribunal for the former Yugoslavia) IHL applies in an
NAIC until a peaceful settlement is achieved.

In practice, the conflict can be considered ended if any of the following is true:
- The violence falls below the required level of a NIAC ( Guess: for a non insignificant amount
of time)
- It does no longer involve two parties that are sufficiently organized
- The conflict evolves into an IAC

Different types of conflicts

Transnational armed conflicts (TACs)
To be continued.
14.4 Battlefield status in international armed conflict
The protection offered to an individual depends on the classification of the conflict, and the
status of the individuals. International humanitarian law offers more detailed protections in
international conflict than in non-international armed conflict. The following is limited to IAC
and belligerent occupation.

Combatants
Member of the armed forces, organized groups and other individuals who take part in the
fighting. Combatants can lawfully suffer lethal force at all times in every circumstance.

Unless they become hors de combat, which is if they EITHER:

- Clearly surrenders
- Can’t defend themselves because of wounds/sickness
- Is unconscious
- Is in the custody of an adverse party in the conflict
AND that they:
- Does not commit any hostile acts
- Do not attempt to escape

Distinction between lawful and unlawful combatants

A combatant is lawful if he is entitled to participate in the hostilities. An unlawful combatant is

not.

Lawful and unlawful combatants have different rights

For example:
- Immunity from international law for participating in hostilities
- Additional rights under the protection as a prisoner of war
- Can not be prosecuted for murder against enemy armed forces

The categories of lawful combatants:

- Members of the armed forces of a state as well as members of militias or volunteer corps
forming part of such forces
- Members of other militias and members of other volunteer corps, including those of
organized resistance movements, that fulfill the conditions of: a command structure, a
sign of their allegiance visible at a distance, carrying their weapons openly and following
the laws and customs of war
- The rare case of “levée en masse” - where the inhabitants of a non-occupied territory
‘spontaneously take up arms’ to resist an invading force ‘without having had time to form
themselves into regular armed units, provided they carry arms openly and respect the
laws and customs of war
Civilians

All individuals who are not combatants are considered civilians.

Shall not be the object of attack, as long as they do not partake in the hostilities.

14.5 The basic principles of the conduct of hostilities

The principle of distinction and the prohibition against causing unnecessary suffering

14.5.1 Principle of Distinction

Definition & Legal Basis: Obliges actors to distinguish between combatants/military objectives
and civilians/civilian objects during attacks. Embedded in articles 48 and 52(1) and (2) of AP I
and recognized in customary international law.

Combatants & Military Objectives:

- Combatants: Members of the armed forces and others taking a direct part in hostilities.
- Military Objectives: Defined in Article 52(2) as objects contributing effectively to military
action, offering a definite military advantage upon their destruction, capture, or
neutralization.
- Nature-Based Objectives: Inherently considered military (combatants, military
aircraft, warships).
- Use-Based Objectives: Qualify based on their use in contributing to military
action. Example: a house of a civilian occupied by soldiers that set up a machine
gun in a window.
- Presumption of civilian targets: In doubt, objects are to be presumed civilian.

Prohibitions:

- Strategic Air Warfare: Targeting objectives with the objective of lowering enemy
morale, for example bombing of cities.
- Terror Among Civilians: Attacks aimed at spreading terror among civilians (e.g.,
Sarajevo siege conviction by ICTY in 2003).
- Indiscriminate Attacks: Non-specific attacks, methods or means of combat that can't
be limited or directed at a specific military objective.
- Area Bombardment: Treating separate objectives as a single military target.

Acceptance of Civilian Casualties: Civilian casualties and destruction from military target
attacks are accepted, balancing military necessity and humanitarian considerations.

Collateral Damage:
 - Proportional: The incidental loss must not be excessive in relation to the anticipated
military advantage.
- Context-Specific Assessment: No fixed formula; depends on operational battlefield
realities.
- Decision-Maker's Perspective: Based on information available at the time of the attack
decision, not on outcomes.

14.5.2 The prohibition against unnecessary suffering

Foundation: Rooted in treaties banning specific weapons and established in customary
international law.
Scope: Targets suffering that is 'unnecessary' or 'superfluous', going beyond the need to
incapacitate a combatant (making them hors de combat) or killing them.
Criteria: The prohibition focuses on the weapon's nature and effects, not the user's intention.

Banned Weapons include:

Projectiles: That cause unnecessary suffering, ex. by expanding inside the body.
Poison: Used in weapons to cause death or serious harm through toxic substances.
Poisonous Gasses: Asphyxiating or toxic gasses causing widespread harm, especially in an
uncontrollable area affected by ex. Wind
Non-Detectable Fragments: Weapons that leave fragments in the body undetectable by
X-rays, complicating medical treatment.
Booby-Traps: Devices designed to kill or maim when encountered, causing indiscriminate
harm.
Incendiary Weapons: Designed to set fire and cause burn injuries.
Blinding Laser Weapons: Lasers that cause permanent blindness to the naked eye.
Cluster Munitions: Projectile that releases submunitions spreading over a large area, leaving
unexploded ordnance that endangers civilians post-conflict.
Chemical Weapons: Chemical substances to cause death or serious harm through toxicity.
Biological Weapons: Biological agents like viruses or bacteria to cause widespread disease
and suffering.

Chemical Warfare
Historical Context: Highlighted by recent use in Syria, violating ethical standards against the
use of poison.

Early Prohibitions:
- 1899 Treaty: Banned projectiles designed solely to release asphyxiating gases.
- 1925 Gas Protocol: Prohibited biological and chemical warfare.

Chemical Weapons Convention (CWC) 1993:

 - Prohibitions: Extends to use, development, storage, and military preparations for
chemical warfare.
- Obligations: States must destroy stockpiles, dismantle production facilities, and adhere
to verification and inspection regimes.
- Membership: As of 1 November 2020, 193 parties.
- Legal Status: The ban reflects customary international law in all forms of armed conflict
and constitutes a war crime under the International Criminal Court (ICC) jurisdiction.

Nuclear weapons

Legality of nuclear weapons has been debated since its invention. The ICJ found that no
customary law or treaty prohibits the use of such weapons. However, the use of a nuclear
weapon would by its nature break the principle of distinction and the prohibition of inflicting
unnecessary suffering.

Emerging technologies

When adopting new weapons, the adopter must determine if it is prohibited or not by the
Protocol or any other rule in international law applicable to the adopter.

Unmanned aerial vehicles (combat drones) have garnered a lot of attention. In legal terms
though it is only interested in where and against whom the drone and missiles is used.

The principles of the law of armed conflict apply to computer network operations or cyber
warfare.

Legal debate and challenges will be posed by the invention and deployment of autonomous
weapons systems that select and strike targets without human intervention. The legal debate is
currently (2021) gaining momentum.
14.6 The regulation of belligerent occupation

Legal Basis: Governed by the 1907 Hague Regulations, Geneva Convention IV (GC IV), and
customary international law.

Nature of Occupation: Intended to be temporary, not altering de jure title (the rightful
ownership of) to the territory. The primary duty of the occupying power is to ensure stability and
protect the economic and social life of inhabitants.

Obligations of the Occupying Power

Public Order and Safety: Article 43 of the Hague Regulations mandates the restoration and
assurance of public order and safety and respecting existing laws unless absolutely
necessary to deviate.

New Legislation is limited to if necessary to:

- Ensure the security of the occupying power.

- Enable the implementation of the Convention (The Geneva Convention)
- Meet the Inhabitants' needs and welfare.
- Meet human rights standards.

Prohibition on Political Transformation: Fundamental changes to the political institutions or

government structure of the occupied territory are generally not permitted without UN Security
Council resolutions.

Prohibition of Population Transfer: The deportation or transfer of the occupying power's own
civilian population into the territory it occupies is criminalized
Example: Israeli settlements in the West Bank were deemed illegal.

Use of Force
Law Enforcement vs. Armed Conflict: The use of force by occupying forces should adhere to
law enforcement standards for maintaining law and order. In active hostilities, conduct of
hostilities standards apply.

Non-International Armed Conflict: Fighting between the occupying power and organized
armed groups may become a non-international armed conflict alongside the international armed
conflict/belligerent occupation. Non-international armed conflict law then applies.
Deadly Force: Requires that arrest is not possible without large risk to the occupying forces
when dealing with individuals participating in hostilities.

14.7 Non-international armed conflict

Scope of International Humanitarian Law (IHL) in Non-International
Armed Conflicts(NAICs)

Historical Context: Initially, international humanitarian law was largely focused on IACs,
including belligerent occupation.

Evolution: Since the Second World War, there has been a significant increase in NAICs, which
can be equally or more devastating than AICs.

Customary International Law and NAICs

Gradual Expansion: There's a movement towards the greater application of customary
international law in times of NAICs, aligning many rules applied in AICs to NAICs

International Committee of the Red Cross Study (ICRC) & International Criminal
Tribunal(ICJ) for the former Yugoslavia’s Tadić Case: Highlighted the blurring lines between
AICs and NAICs, advocating for humane principles to be universally applied.

Unification: This expansion of customary principles is seen as a step towards unifying the legal
framework governing armed conflicts.

Differences in Regulation between International Armed Conflicts

(IACs) and Non-International Armed Conflicts (NAICs)
Belligerent Occupation: During occupation IAC laws are in effect.

Combatant and Civilian Distinction:

- This distinction is recognized in both types of conflicts, but captured combatants in

NIACs do not receive protections as prisoners of war. Insurgents can be
prosecuted for participating in hostilities under national laws.
- Interaction with International Human Rights Law: The relationship between the law of
armed conflict and international human rights law varies, with specific differences in
protections and obligations emerging in NIACs

Direct Participation in Hostilities

In non-international armed conflicts, individuals who have a "continuous combat function" in
armed groups belonging to a non-state actor can be targeted at any time, not just when they are
actively engaged in hostilities.

14.8 The relationship between international

humanitarian law and human rights law

Coexistence and Application

Established Coexistence: Human rights law applies alongside international humanitarian law
during armed conflicts.

International Court of Justice Insights: Some rights may exclusively fall under one law or the
other, but often, rights are governed by both branches.

International Criminal Tribunal for the former Yugoslavia Perspective: Both bodies of law
aim to protect human dignity, underpinning their existence and application.

Interpretation and Significance

Human Rights in Armed Conflict Interpretation: Human rights law can inform the
interpretation of international humanitarian law, especially regarding definitions (ex. torture).

Practical Application Considerations:

- Human rights standards must adapt to the realities of armed conflict, as outlined by IHL.
- When there's a clash between human rights law and IHL, prioritization may be needed,
often allowing for actions under military necessity according to IHL rules.
-

Lex Specialis Doctrine

Use of Deadly Force and Detention:

- In international armed conflicts, international humanitarian law standards of life and

liberty is applied, because of the lex specialis (The more specific law taking priority, in
this case the law covering armed conflicts)

NAICs Challenges:
 - Limited treaty regulation and no explicit authority for deadly force or detention complicate
the relationship between human rights law and international humanitarian law.
- Courts and legal opinions vary, with some seeing human rights law as filling regulatory
gaps, especially regarding detention.

Authority to Detain and Use Deadly Force

Differing Views:
Some highlight a distinction between the authority to detain and the use of deadly force,
especially in NAICs.

Others, including the International Committee of the Red Cross and the United States Supreme
Court, suggest customary international law and international armed conflict principles should be
applied to fill gaps in non-international armed conflict law.

Author's Perspective
Integrated Authorities: The ability to detain and the use of deadly force are seen as inherently
linked; one cannot exist effectively without the other in the context of armed conflict.

Capture vs. Deadly Force: The preference for capture over deadly force, if feasible without
undue risk, reflects a nuanced application of both bodies of law, emphasizing the protection of
human life and dignity.

Chapter 14 Summary from book:

The law of armed conflict regulates how military operations must be conducted. It is an
inherently pragmatic discipline offering balanced solutions that take account of both military
necessity and humanitarian sentiments.

The law of armed conflict applies in times of armed conflict and the law differentiates between
‘international armed conflict’, involving the armed forces of two or more states, and
‘non-international armed conflict’, which involves fighting between either a state and a private
organized armed group or between two or more such groups. International armed conflict
includes belligerent occupation.

All individuals have a status in times of armed conflict and the two most notable categories are
those of civilians and combatants. While civilians must be protected from the effects of the
conflict, combatants may generally be targeted and detained until the end of hostilities.

The conduct of hostilities is governed by a number of basic principles, the most important
being the principle of distinction and the prohibition against causing unnecessary
suffering to combatants.
While human rights law also applies in times of armed conflict, its practical application will
sometimes be informed by the content of the law of armed conflict.

LECTURE 4 (International Humanitarian Law)

Key Takeaways: 1949 Geneva Conventions (I, II, III, IV)
and 1977 Additional Protocols (I, II)
These conventions and protocols collectively form the core of international humanitarian law,
designed to protect those who are not or no longer participating in hostilities, and to limit the
effects of armed conflict. They have been ratified by nearly all states and are thus universally
applicable

Geneva Convention I (1949)

Purpose: Protects wounded and sick soldiers on land.

Key Provisions: Includes 64 articles covering the protection not only of the wounded and sick
but also medical and religious personnel, medical units, and transports. It recognizes distinctive
emblems and includes annexes (extra documents)on hospital zones and identity cards for
medical personnel.

Geneva Convention II (1949)

Purpose: Protects wounded, sick, and shipwrecked military personnel at sea.

Key Provisions: Comprises 63 articles that expand the first convention to maritime warfare,
including protection for hospital ships, with an annex (extra document) for identity cards for
medical personnel.

Geneva Convention III (1949)

Purpose: Applies to prisoners of war (POWs).

Key Provisions: Contains 143 articles detailing broad categories of persons entitled to POW
status, conditions and places of captivity, labor of POWs, their financial resources, relief, and
judicial proceedings, with annexes (extra document) for regulations and identity cards.

Geneva Convention IV (1949)

Purpose: Affords protection to civilians, including in occupied territories.
Key Provisions: Consists of 159 articles focusing on the general protection of civilian
populations and detailed provisions on the status and treatment of protected persons,
humanitarian relief for occupied territories, and a regime for the treatment of civilian internees.

Common Article 3 to the Geneva Conventions

Importance: Introduces fundamental rules for non-international armed conflicts. It is like a
mini-version of all the conventions that no actor in a conflict can break.

Key Provisions: Humane treatment for all persons in enemy hands and specifying prohibitions
such as murder, mutilation, and torture. It emphasizes the importance of humane treatment and
care for the wounded and sick.

Additional Protocols to the Geneva Conventions

Additional Protocol I (1977): Focuses on victims of international armed conflicts, enhancing
protections and limiting warfare methods.

Additional Protocol II (1977): The first treaty exclusively for non-international armed
conflicts, further strengthening protections for those not engaged in hostilities.

LECTURE 4 (International Humanitarian Law)

Critiques and key takeaways of: “The Legitimation of
Violence: A Critical History of the Laws of War” - Jochnick,
Chris af, and Roger Normand

The book/article provides a critical analysis of the perception and reality of legal wars,
particularly focusing on the Gulf War's portrayal as "clean and legal" versus its devastating
impact on Iraqi civilians, challenging the notion that laws of war have historically prioritized
humanitarian values over military necessity.

It delves into the evolution and effectiveness of the laws of war, from ancient codes to the
Nuremberg Trials, questioning the extent to which these laws have humanized warfare or
merely legitimized violence under a veneer of legality.
Introduction: It challenges the perception of legal wars as humane, using the Gulf War as a
case study to illustrate the discrepancy between the legal rhetoric of wars and their actual
impacts on civilians.

Introduction to the Laws of War: This section criticizes the effectiveness of laws of war,
particularly distinguishing between jus ad bellum and jus in bello, and argues that despite their
humanitarian intent, these laws often legitimize violence.

Historical Perspective: It disputes the belief in the progressive humanization of warfare

through laws, showing that historical legal codes did not prevent atrocities and that legal
frameworks often served to legitimize rather than limit military actions.

19th-Century Efforts: The narrative continues with the examination of the 19th century's
formalization attempts, highlighting that these initiatives reinforced military necessity over
humanitarian objectives, with legal frameworks legitimizing rather than restricting wartime
conduct.

Early 20th-Century Efforts: Focusing on the Hague Conferences, it discusses the failure of
efforts to align laws of war with humanitarian goals, noting the dominance of military necessity
and the challenges in imposing real constraints on warfare.

World Wars Era: This chapter critically examines the role of laws of war during the World Wars,
illustrating their failure to protect civilians and how legal interpretations justified widespread
destruction, including the strategic bombing of cities.

Post-World War Reckoning: It assesses the Nuremberg Trials, acknowledging their role in
prosecuting war crimes while critiquing the selective justice that legitimized attacks on civilians
under the guise of military necessity, revealing a significant ethical and legal dilemma in the
prosecution of wartime actions.

Overall, the work scrutinizes the moral and legal foundations of the laws of war, revealing a
profound gap between the idealized humanization of warfare and the grim realities of legal and
military practices that often prioritize strategic objectives over humanitarian concerns.
CHAPTER 9 - Human Rights Law

Chapter examines:
- The post WW2 system of human rights
- Mechanisms of enforcement within the UN & regional level, the European system
for protection of HR
- The territorial scope of HR-conventions & applicability of HRL in times times of
emergency / armed conflict
- Overview of international legal protection of refugees

9.1 Introduction

Came about post WW2 for the first time.

States have developed human rights under a long time in for example constitutions.

Human rights law became international law since sovereign states chose to enter international
treaties about how to treat individuals under their jurisdiction.

Instead of rights that you can earn and lose (ex. citizenship), Human Rights is based on that all
individuals have certain inalienable rights.
Example: “1948 of the General Assembly’s Universal Declaration of Human Rights (UDHR). In
its first article, the UDHR declares that all ‘human beings are born free and equal in dignity and
rights’ and ‘endowed with reason and conscience and should act towards one another in a spirit
of brotherhood”

IHLR is a HUGE area of IL

9.2 = Sources of human rights law

A number of treaties and conventions:

1948 UDHR

General conventions from the UN - A wide range of different human rights - Examples:
International Covenant on Civil and Political Rights - ICCPR
International Covenant on Economic, Social and Cultural Rights - ICESCR

Universal conventions - With a focus on a single particular human rights issue - Examples:
International Convention on the Elimination of All Forms of Racial Discrimination - CERD
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment -
CAT
Conventions to protect categories of vulnerable individuals - Examples:
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CRC)
Convention relating to the status of refugees (section 9.8)

Regional human rights conventions - Binding in the region Examples:

European Convention on Human Rights (ECHR)
Arab Charter on Human Rights (ACHR)

Customary International Law - binding on all states regardless of what treaties are signed or
not.

Peremptory/jus cogens nature rights that apply to all Examples, at least:

Torture, slavery, genocide, violations of rights that rise to the level of
crimes against humanity, the crime of apartheid and various forms of gross
racial discrimination.

Categories of human rights

Conceptual categories - In practice many are interrelated and interdependent

- Civil & Political rights
- Economic & Social rights
- Collective rights

9.3.2 Civil and political rights

First generation of human rights

They include the prohibition against torture and slavery, the right to life, liberty, fair trial, equality
before the law, freedom of speech, religious freedoms as well as certain political participatory
rights.

Most are negative rights - the protection from the government

In practice some positive actions are required by the state, are required such as a judicial
system.

Core principles and values of civil and political rights:

Human dignity - right to life, torture

Intellectual freedom - Free speech, religion, peaceful assembly - Can be limited for legitimate
purposes proportionally
Physical freedom - Arbitrary detention, denying freedom of movement
Equality of non-discrimination - Everyone no matter race, sex, language, opinion etc. have
access to the same rights.
Justice and fairness - A requirement of legal basis for interfering with a right, and right to a fair
trial (due process) and prohibition against retroactive criminality (judged for a crime that was not
a crime when the action took place)’
Political participation - Rights of citizens to participate in political processes, in particular in
Europe.

9.3.3 Economic and social rights

Second generation of human rights

The second category of rights concerns economic and social issues and, on the universal level,
these rights—‘second generation’ human rights—are primarily found in the ICESCR. In Europe,
hey are listed in the European Social Charter. The rights include a right to work, adequate
working conditions including fair wages, a right to social security, an adequate living standard,
physical and mental health and a right to education.

Different from civil and political rights in their character and that they are positive rights rather
than negative rights. The state must take action to fulfill those rights.

These rights are formulated in abstract terms, states can interpret in many different ways.
Judicial enforcement of social and economic rights is much weaker than enforcement of civil
and political rights, since those are more specific.

9.3.4 Collective rights

The protection of various groups of individuals, usually those deemed especially vulnerable
and in need of special protection.

The Genocide convention - States must prevent and punish genocidal acts with genocidal
intent.

The right to self determination - All “peoples” have a right to determine their political status

Minority protection - Minorities (ethnic, religious) shall not be denied to have their own culture,
religion or language.

9.4 Human rights and responsibility for private acts

Private individuals are not bound under international law, but a states responsibility can
be triggered if they do not engage in positive actions to ensure individuals are for
example tortured, if they authorities had or ought to have knowledge.
For example if attacks by one religious group towards another is generally tolerated but
not the reverse (israel palestine)

UNHCR
- more like an NGO
- field work
- Reports
- Quite respected

9.5 Enforcement of human rights in the UN

There are two parallel systems for monitoring and enforcing human rights:
UN Charter-based
Universal human right treaty based

9.5.2 Charter-based human rights mechanics

The Human Rights Commission was tasked with increasing respect for and setting
standards for human rights conduct of UN members.

After critique of politicization they were replaced in 2006 by the Human Rights Council
consisting of 47 members divided regionally. Universal Periodic Review - human rights
compliance of all states reviewed.

More critique of politicization, US left after “bias against israel”

In summary: Has not worked great because of perceived politicization.

9.5.3 Treaty-based enforcement mechanics

Committee System for Human Rights Treaties: The UN has committees monitoring
the implementation and compliance with nine core human rights treaties. These
committees are composed of experts, not necessarily lawyers, who serve
independently, usually for four-year terms.

Human Rights Committee (CCPR): Among the most notable of these committees, the
CCPR monitors the International Covenant on Civil and Political Rights (ICCPR)
compliance. It reviews periodic reports from states on their relevant measures and
makes "concluding observations" that include concerns and recommendations for
improvement. The CCPR also issues non-binding General Comments on the
interpretation and application of the ICCPR and can hear complaints between states,
although this mechanism has rarely been used.

Inter-State Complaints: Until 2018, the procedure for inter-state complaints under
various UN human rights treaties was largely unused. However, this changed with
complaints by Qatar against Saudi Arabia and the UAE, and Palestine against Israel
under the UN Convention on the Elimination of all Forms of Racial Discrimination
(CERD).

Individual Complaints Procedure under the ICCPR (Civil and Political rights): An
important mechanism is the procedure for individual complaints under the ICCPR,
allowing individuals claiming to be victims of violations to submit complaints. This
procedure can lead to the request of immediate measures to be taken by the state
breaking human rights law.

Committee Against Torture (CAT): The CAT monitors compliance with the Convention
Against Torture. It receives periodic reports, hears interstate and individual complaints
(if the state has accepted its competence), and its conclusions are not binding. A 2002
optional protocol established a Subcommittee on Prevention (SPT) and a system for
regular visits to detention facilities to prevent torture.

Non-Binding Recommendations: nWhile the recommendations and findings of the UN

committees are not legally binding, they hold significant interpretative value for defining
international law content.

9.6 Regional Systems for the protection of human rights

Human rights in the UN is supplemented by regional human right protection that differs
from region to region in quality and enforcement.

9.6.2 - The ECHR - The European Convention on Human Rights

Human rights protection in Europe is very strong. European Convention on Human
Rights (ECHR) was adopted in 1950 and is the legal cornerstone for current
regulations of the Council of Europe with 47 members.

9.6.2 - The ECtHR - The European Court of Human Rights

Can make binding decisions - Key to success

Interstate complaints - Interstate complaints relatively rare, more common after

Russia into Krim and eastern ukraine situation (2021)

Individual complaints

The most common type of complaint can be from a person, NGO or group of
individuals. Has been very successful, tens of thousands of complaints per year.

The court only take cases where all domestic remedies have been exhausted - The
individual has attempted to use all courts in their state and that state has come to a final
decision that cannot be appealed further.

The complaint must be filed within six months of the final decision of the domestic court.

If the court concludes find that Convention has been violated they may consider
satisfaction, this is often monetary compensations, but can also be other things.

Decision is final and legally binding, a committee monitors state compliance.

9.6.2.3 & 4 ECHR - European Convention on Human Rights

Primarily civil and political rights (see above under 9.3.2)

Regulated in 14 Articles and 16 additional protocols which can be added over time.

The court uses a “dynamic” approach to interpreting the Convention depending on

current circumstances, to avoid it becoming outdated and risk rendering it possible to
block reform or improvement.

There are other conventions

Additional treaties that protect human rights exist in the European Union, including
more rights.
Some coordination between the ECtHR and the EU is necessary to not step on each
others jurisdiction.

Humans rights protection in the Americas

American Convention of Human Rights adopted by the Organization of American states
(OAS)
Humans rights protection if Africa

9.7 Territorial scope of human rights treaties

In theory only responsible for own territory

In practice whenever the state has control or power over an individual no matter the
circumstances human rights apply

There are lots of debates about for example the NSA or killings of Iraqi nationals by
british forces.

9.8 Human rights in times of public emergency

9.9 International protection of refugees

The Refugee Convention - Post ww2 - 145 state parties

The non-refoulement principle - A negative obligation not to return or expel individuals

to states where their life is threatened, not a positive obligation to grant asylum
Only protects refugees, definition:
owing to well-founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outside the country
of his former habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it.

Does not protect internal displaced persons (IDPs)

It needs to be a concrete threat of real harm and fear of persecution.

Does not apply to people that have committed for example crimes against humanity

Summary:

International human rights law derives from a basic notion that human rights are
inherent to all human beings. The modern human rights law system was created after
the end of the Second World War with the establishment of the UN.

The most important human rights instruments are those adopted under the auspices of
the UN and a number of regional conventions, most notably the ECHR.

Individual human rights are traditionally divided into categories or classes that reflect the
nature of the rights and the evolution of international human rights law. Arguably, the
most important human rights are those of a civil and political character.

There are two systems for monitoring and enforcing compliance with human rights law
in the UN, one based on the UN Charter and the other on universal human rights
treaties.

At the regional level, human rights protection is particularly strong in Europe, where the
ECHR is a cornerstone of human rights protection.

The geographical scope of human rights conventions is not necessarily limited to the
territory of the state.
The application of human rights does not cease in times of public emergency or armed
conflict, but the determination of what constitutes a violation of human rights may be
influenced by standards from the law of armed conflict.

A state may also be allowed to temporarily suspend the application of parts of a human
rights convention in the case of a public emergency. Refugees are primarily protected in
the 1951 Refugee Convention.

15. International Criminal Law

Purposes & Principles of International Criminal Law (ICL)

The concept of an international crime, the principles of international criminal liability

and some exceptions to being internationally criminally liable

The process of prosecution of international crimes before courts, including the

International Criminal Court (ICC)

The national prosecution of international crimes, opportunity to prosecute no matter

where crime was committed.

The Refugee Convention [Final Lecture]

The 1951 Refugee Convention and its 1967 Protocol are the key legal documents
that form the basis of UNHCR’s work.

Definition of a refugee

Article 1 of the 1951 Convention defines a refugee, the requirements say:

Well-Founded Fear of Persecution: The individual must have a genuine and

substantial fear of persecution.
Reasons for Persecution: The fear of persecution must be due to Race, Religion,
Nationality, Membership in a particular social group or Political opinion
Outside Country of Nationality: The person must be outside the country of their
nationality due to the fear of persecution.
Outside home country: The individual must be outside the country of their nationality.
If the person does not have a nationality, they must be outside their country of former
regular residence instead.
Unable or unwilling to return: The individual must be unable or unwilling to return to
their home country, due to fear of persecution, or be unwilling or unable to use or take
advantage of the protection of their country of nationality.

Regional institutions have expanded the definition and given examples of circumstances
that are enough to warrant becoming a refugee.

Fundamental principles of the 1951 Convention

Non-discrimination: The rules should be applied regardless of race, religion, country

of origin, sex, age, disability, sexuality and other prohibited grounds for discrimination.

Non-Refoulement = A refugee is not allowed to be forcibly returned to a country or

place where they face serious, credible threats to their life or freedom (my assumption is
that is arbitrary detention is the intended meaning, not lawful imprisonment through a
judicial system)

Non-penalization: Unless a specific exception refugees should not be punished for

illegal entry and stay into a country. The breach of immigration laws necessary to seek
asylum and they should therefore not be criminally charged immigration related
offenses or arbitrarily detained because they are seeking asylum.

Minimum treatment standards: The basic minimum standard rights of refugees are
access to the country, to primary education, to work and access to essential legal
documents including a refugee travel document that functions as a passport.

Exception for the provision of rights for refugees or loss of refugee

status

The rights does not apply to everyone that are a refugee according to the Article 1
definition, they do not apply if:
 - There is a serious reason to believe they have committed war crimes or crimes
against humanity, serious non-political crimes or are guilty of actions that
fundamentally oppose the core objectives outlined in the Charter of the United
Nations.
- Refugees already being protected by another UN agency other that the UNHCR,
for example the UN agency for the protection of palestinians (UNRWA)
- Refugees that already has a status equivalent to being a national of the country
in which they are seeking asylum.

Losing refugee status - Cessation clauses

In certain circumstances people can lose their refugee status they previously correctly
had, for example because of:

- They voluntarily use or take advantage of the protection provided by their country
of nationality.
- They voluntarily return and establish themself in their country of nationality.
- They regain a nationality they previously had lost
- They gain a new nationality from a different country and are provided protection
from them.
- Circumstances change so that the fear of persecution no longer exists in general
in the country. An exception is if there are personal reasons of past persecution
that may still justify their fear of returning. For example very severe torture,
traumatic psychological impact of past persecution or the likelihood that the past
persecutors will remain unpunished or be influential in local or national
government.

Articles 2-34 summarized

Article 2: General Obligations

Refugees must abide by the laws and regulations of the host country and follow
measures for public safety. This means that while in another country, refugees should
respect and follow its rules just like any other resident.

The Fundamental Principle of non-discrimination - Article 3:

Non-discrimination

This is a critical article part of the fundamental principles of the convention. This article
emphasizes that refugees should be treated equally, without discrimination based on
race, religion, or country of origin. In simple terms, refugees should receive the same
treatment as anyone else in the country, regardless of their background.

Article 4: Religion
Refugees have the freedom to practice their religion and have the same rights as
nationals of the host country regarding religious education for their children.

Article 5: Rights Granted Apart from this Convention

This ensures that refugees can still enjoy any rights or benefits that are offered to them
by the host country outside of what the Convention provides.

Article 6: The Term "In the Same Circumstances"

This term is used to ensure that refugees are treated under the same conditions as
nationals when it comes to legal rights and benefits. If a refugee meets the same
criteria as a national, they should be treated the same.

Article 7: Exemption from Reciprocity

After three years of residence, refugees do not need to fulfill any reciprocal
requirements that might normally apply to foreigners. For instance, they won't need to
prove they have benefits in their home country to receive similar benefits in the host
country.

Article 8: Exemption from Exceptional Measures

This protects refugees from being targeted by actions that might be taken against
nationals of a foreign country during a crisis, for example refugees would be excluded
from sanctions placed on nationals of that country.

Article 9: Provisional Measures

In times of emergency or war, a country can impose temporary restrictions on a refugee
if it's necessary for national security. For example after 9/11 all non-citizens were
temporarily subjected to increased security screenings and visa requirements, this did
not exclude refugees.

Article 10: Continuity of Residence

For citizenship purposes, many countries require a specified period of continuous
residence before an individual can apply for naturalization. Normally, any significant
breaks or departures from the country can reset this "residence clock," delaying the
ability to apply for citizenship.

Refugees who were displaced during World War II and found themselves in a new
country should have their residency considered uninterrupted even if they for example
returned to their home country post-war to check on property of family, this sped up the
process towards citizenship.

Article 11: Refugee Seamen

Countries are encouraged to consider giving refugee seamen who serve on their ships
the opportunity to reside in the country.

Article 12: Personal Status

The personal status of a refugee, like marriage and family matters, is determined by the
law of the country where they reside.

Article 13: Movable and Immovable Property

Refugees should have the same rights as other foreigners to own property and enter
into related contracts.

Article 14: Artistic Rights and Industrial Property

Refugees have rights to their inventions, trademarks, and artistic works just like
nationals of their host country.

Article 15: Right of Association

Refugees can join associations and unions just as any foreigner can under similar
conditions.

Article 16: Access to Courts

Refugees have the right to use the legal system in the host country, including access to
legal assistance and the right to be treated equally in court matters.

Article 17: Wage-Earning Employment

This article discusses the employment rights of refugees, stating they should have
access to jobs under conditions as favorable as those available to foreigners in similar
circumstances.

Article 18: Self-Employment

Refugees are allowed to start their own businesses and work in agriculture, industry,
handicrafts, and commerce under favorable conditions.

Article 19: Liberal Professions

Refugees who are qualified professionals should be allowed to practice their
professions under conditions similar to those of foreigners.

Article 20: Rationing

If there's rationing in the host country, refugees should be included just like nationals.

Article 21: Housing

Refugees should have access to housing under the same conditions as foreigners
generally.

Article 22: Public Education

Refugees have the right to public education. They should receive the same treatment as
nationals for elementary education and as favorable conditions as possible for higher
education.

Article 23: Public Relief

This ensures that refugees can access public assistance and welfare benefits just like
nationals of the host country.

Article 24: Labour Legislation and Social Security

Refugees are entitled to the same labor protections and social security benefits as
nationals, including family benefits, healthcare, and pensions.

Article 25: Administrative Assistance

This provides that refugees should receive help from the host country in administrative
matters, especially when they can't obtain necessary documents from their country of
origin.

Article 26: Freedom of Movement

Refugees can choose where to live and move freely within the host country, similar to
other foreigners.
Article 27: Identity Papers
The host country must provide identity papers to refugees who don't have valid travel
documents.

Article 28: Travel Documents

Refugees should be issued travel documents by the host country, allowing them to
travel outside the country, similar to a passport.

Article 29: Fiscal Charges

Refugees should not be subjected to taxes or fiscal charges higher than those applied
to nationals.

Article 30: Transfer of Assets

This allows refugees to transfer their assets to another country, particularly for
resettlement purposes.

The Fundamental Principle of Non-penalization - Article 31: Refugees

Unlawfully in the Country

This is a critical article part of the fundamental principles of the convention. It specifies
that refugees should not be penalized for entering a country illegally if they come
directly from a place where their life or freedom was threatened.

Article 32: Expulsion

It limits the expulsion of refugees to reasons of national security or public order and
must follow due process. For example, after being convicted in a fair trial for a serious
crime that can be seen as a threat to public safety (murder, rape, etc.) they can be
sentenced to expulsion as a part of the punishment, they can appeal this expulsion and
seek legal representation.

The Fundamental Principle of Non Refoulement - Article 33: Prohibition of

Expulsion or Return
This is a critical article part of the fundamental principles of the convention. Refugees
are not allowed to be forcibly returned to a country or place where they would face
serious, credible threats to their life or freedom (my assumption is that is arbitrary
detention is the intended meaning, not lawful imprisonment through a judicial system)

This article overrides Article 32, they can not be forcibly returned even if there is a threat
to national security or public order.

Article 34: Naturalization

The host country is encouraged to facilitate the process of naturalization for refugees,
making it easier for them to become citizens.