INTERNATIONAL LAW 2013 and 2014 Susan Breau Saree MoU Ome (RCM Mocs elem ogOXFORD UNIVERSITY PRESS Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press sa department of the University of Oxford. Ie furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford isa registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press 2013 The moral rights of the author have been asserted Fist edition 2009 Second edition 2011 Impression: 1 All rights reserved. No part of this publication may be reprodnced, stored in 2 retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by livence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, atthe address above ‘You must not circulate this work in any other form ‘and you must impose this same condition on aay acquiter Public sector information reproduced under the Open Government Licence ¥1.0 (htep:/svww.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm) ‘Crown Copyright material reproduced with the permission of the troller, HMSO (under the terms of the Click Use licence) British Library Cataloguing in Publication Data Data available ISBN 978-0-19-966196-1 Printed in Great Britain by Ashford Colour Press Lta, Gosport, Hampshire Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials ‘contained in any third party website referenced in this work.Preface vi Table of Cases vii Table of Legislation xiv 1 Introduction 1 2 The nature of public international law 3 3. The sources of public intemational law 19 4 The law of treaties 35 5 International law and municipal law 51 6 Legal personality and the creation of states 65 7 Territory 81 8 Law of the sea 97 9 Jurisdiction 113 10 State and diplomatic immunity 129 11. State responsibility 144 12 Arbitration and judicial settlement of disputes 158 13. Use of force by states—unilateral 172 14. Use of force by states—multilateral 187 45. International human rights law 202 16 International humanitarian law and international criminal law 217 Index 233Key features The Q&A series provides full coverage of key subjects in a clear and logical way. The book contains the following features: * Questions * Commentary * Bullet-pointed answer plans + Examiner's tips * Suggested answers * Further reading suggestions online resource centre www.oxfordtextbooks.co.uk/ore/qanda/ Titles in the Q&A series are supported by additional online materials to aid study and revision. Online resources for this title are hosted at the URL above, which is open access and free to use. Lieli¢ WAR Lie baierThis is the third edition on public international law in this series. I extend my apprecia- tion to my former doctoral student at the University of Surrey, Ashley Bowes, and my former student at Pepperdine University, Aly Challoner, for their research assistance. Any errors and omissions are my responsibility alone. This book is intended as a student aid in structuring an answer to examination-type problems and in discussing some of the more difficult areas in the subject. It also contains reference to further reading, which should be of assistance in the preparation of course- work. There is the addition for this edition of Examiner's tips to make sure you address the essentials in your answers. This edition has been updated to include recent developments in international law such as the pivotal decision on sovereign immunity by the International Court of Justice, the crisis in Syria, and the intervention in Libya. There is also an updated review of academic articles in each of the subjects canvassed in this edition as important scholarship is con- tinuing to develop on each of these topics. The law is stated as at 31 August 2012. Susan BreauInternational Court of Justice Accordance with international law in the unilateral declaration of independence in respect of Kosovo: Advisory Opinion of 22 July 2010....65, 66, 163, 194 Advisory Opinion on Namibia [1971 IC] Reports 16...162 Anglo Norwegian Fisheries case see Fisheries case (United Kingdom v Norway) Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden) [1958] IC] Reports 55, Judgment of 28 November 1958...64 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment 2007... 149, 166, 167 Application of the Convention on the Prevention and Punishment of the Grime of Genocide (Bosnia and Herzegovina v Yugoslavia) [1993] ICJ Reports 3, Preliminary Objections, Order of 8 April 1993...32, 33, 150, 151 Armed activities on the Territory of the Congo, (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005...172 Acrest Warrant of 11th April 2000 (Democratic Republic of Congo v Belgium) [2002] IC] Reports 3, Judgment of 14 February 2002...113, 118, 119, 120, 121 Asylum Case (Columbia v Peru) [1950] IC] Reports 266, Judgment of 20 November 1950...21,23 ‘Avena and Other Mexican Nationals, (Mexico v United States) [2004] IC] Reports 12, Judgment of 21 March 2004....62, 63, Barcelona Traction Light and Power Co (Belgium v Spain) [1970] 1CJ Reports 3, 2nd Phase 6 February 1970...32, 63 Case C jon in the ncerning Maritime Delimi Black Sea (Romania v Ukraine), Judgment 3 February 2009...98, 104 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Reports 161, Judgment of 6 November 2003...171, 172 Case Concerning Questions of Interpretation and Application of the Montreal Convention Arising out of the Aerial Incident at Lockerbie (Provisional Measures) (Libya v United States and United Kingdom [1992] IC] Reports 3...169, 171 Case of Certain Norwegian Loans (France v Norway) [1957] IC] Reports 9, Judgment of 6 July 1957...168 Certain Expenses of the United Nations [1962] ICJ Reports 155, Advisory Opinion. .. 165, 187 Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Reports 4, Advisory Opinion of 3 Mareh 1950...45, 165 Conditions of Admission of a State to Membership in the United Nations [1948] IC] Reports 57...165 Continental shelf case (Libya Arab Jamahiriya/ Malta) [1985] IC] Reports 13, Judgment of 3 June 1985...26, 91, 100, 104 Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Reports 4, Judgment 9 April 1949... 103, 105, 106, 107, 167, 171,172 East Timor Case (Portugal v Australia) [1995] IC] Reports 90, Judgment of 30 June 1995,..32, 69,73, 168 Fisheries case (United Kingdom v Norway) [1951] ICJ Reports 116, Judgment of 18 December 1951...21, 23, 24, 103 Fisheries Jurisdiction case (Federal Republic of Germany v Iceland) [1974] IC] Reports 3, Judgment of 25 July 1974...21, 23 Frontier Dispute (Burkina Faso/Republic of Mali) [1986] IC] Reports 554, Judgment of 22 December 1986...91, 92 Gabsikovo-Nagymaros Project (Hungary v Slovakia) [1997] IC] Reports, Judgment of 25 September 1997...47, 48, 49, 50, 154Icelandic Fisheries Jurisdiction (United Kingdom v Iceland) (Merits)...48 Interhandel case (Switzerland v United States) Preliminary Objections [1959] IC] Reports 6, Judgment of 21 March 1959...168 International Status of South West Africa [1960] ICJ Reports.128; and (Second Phase), [1966] IC] Reports...69 Jurisdictional Immunities of States (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, not yet reported...130, 137, 138 Kasikili/Sedudu Island (Botswana/Namibia) [1999] IC] Reports 1045, Judgment of 13 December 1999...45, 85,87, 167 LaGrand (Federal Republic of Germany v United States of America) [2001] CJ Reports 466, Judgment 27 June 2001.62, 63 Land and Maritime Boundary between meron and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) [2002] IC] Reports 303, Judgment of 2 October 2002...92 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) [1992] IC] Reports 351, Judgment of 11 September 1992...91 Legal consequences of the construction of a wall in the Occupied Palestinian Territory, ICJ Advisory Opinion of 9 July 2004...32, 24, 68, 70, 72, 163, 164, 165, 172 Legality of the threat or use of nu advisory opinion [1996] IC] Reports 66, Advisory Opinion of 8 July 1996...21,23, 163, 164, 165, 172, 219, 220 Lubanga, First Judgment, 14 March 2012...217, 225 lear weapons Maritime Delimitation and Territorial Questions Between Qatar and Bahrain. (Qatar v Bahrain) [2001] IC] Reports 40, Judgment of 16 March 2001 ....30, 103 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, [1986] IC] Reports 14, Judgment of 27 June 1986... 13, TABLE OF CASES 21, 22, 23, 24, 26, 27, 29, 33, 150, 151, 168, 171, 172, 174, 177, 178, 179, 184, 223 Minguiers and Eerehos (France/United Kingdom) [1953] IC] Reports 47, Judgment of 17 November 1953...82, 85, 88 North Sea Continental Shelf, (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969] IC] Reports 3, Judgment of 20 February 1969...21,23, 24, 25, 26, 27, 28, 29, 30, 33, 160 Norwegian Loans case see Case of Certain Norwegian Loans (France v Norway) Nuclear tests cases (Australia v France; New Zealand y France) [1974] IC] Reports, 253 and 457, Judgments of 20 December 1974...109 Oil Platforms case see Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment 20 April 2010...145 Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Reports 174, Advisory Opinion of 11 April 1949....66, 68 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] IC] Reports 15, Advisory Opinion, 28 May 1951...4 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Judgment of 23 May 2008...86 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) [2002] IC] Reports 625, Judgment of 17 December 2002...88, 167 ‘Territorial and Maritime Dispute between ‘Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) Judgment of October 2007...88, 92 nsular Staff in United States Diplomatic and Ci ‘Tehran (United States of America v Iran)TABLE OF CASES [1980] ICJ Reports 3, Judgment of 24 May 1980... 142, 151, 179, 180, 181, 184 Vienna Convention on Consular Relations (Paraguay v United States of America) [1998] IC] Reports 248, Order of 3 April 1998...62, 63 ‘Western Sahara [1975] IC] Reports 12, Advisory Opinion of 16 October 1975...69, 73, 85, 164, 165 Permanent Court of International Justice Advisory Opinion concerning the Interpretation of the Treaty of Lausanne, (1925) PCIJ, Series B,No 12...161 Austro-German Customs Union case (1931), PCIJ, Series AB, No 41...72 Case Concerning the Payment of Various Serbian Loans Issued in France, (1929) PCIJ, Series A, No 20...63, 153 Certain German interests in Polish Upper Silesia case: merits judgment, (1926) PCIJ Series A, No 7...62, 147, 156 Danzig Railways Officials Case (Jurisdiction of the Courts of Danzig) (1928) PCI Series B, No. 15...68 Factory at Chorzow (Germany v Poland), (1927) PCIJ Series A, No 9... 146, 155, 156 Legal Status of Eastern Greenland (Norway v Denmark) [1933] PCI] Series A/B, No 3... 85, 87, 88 Lotus Case, (France v Turkey) (1927) PCIJ Series A,No 10...22, 26, 114, 115, 117, 118, 122, 123 Mavrommatis Palestine Concessions Case (Greece v UK) (1924) PCI] Series A, No 2...147, 160, 166 Polish Nationals in Danzig case, PCIJ Series A/B, No 44...62 Status of Eastern Carelia, (1923) PCI] Series B, No 5...164 European Court/Commission of Human Rights Belilos v Switzerland, Series A No. 132, 88 ILR 635, ECHR...41 Brogan and others v UK (1989) 11 EHRR 117, Judgment of 29 November 1988...212, 214 Chahal v United Kingdom (1996) 2 Judgment of 15 November 1996. BHRR 413, 99,212 Greck Case, 12 European Yearbook of Human Rights 196,..212, 214 Ireland v United Kingdom, 5310/71, [1978] ECHR 1, Judgment of 18 January 1978...212, 214 Joined Cases C-402/05 P and C-415/05 P ~ Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the uropean Communities, Judgment of 3 September 2008....171 Klass v Germany, (1979-80) 2 FHRR 214, Judgment of 6 September 1978...212 Lawless v Ireland (No 3) (1961) 1 EHRR 5...212, 214 Lithgow v United Kingdom, 9006/80 (1986) 8 EHRR 329...46 Loizidou v Turkey, 15318/89, [1996] ECHR 70, Preliminary Objections Judgment of 18 December 1996...42 Moustagium v Belgium A 193, (1991) 13 EHRR 802...213 Human Rights Committee Av Australia $60/1993...213 Decision 2894/66...214 Van Alphen v The Netherlands 305/88...213 Inter-American Court of Human Rights Licensing of Journalists case...46International Military Tribunal at Nuremberg International Military Tribunal (Nuremberg) Judgment and Sentences, reprinted in (1947) 41 American Journal of International Law 172...218 Prosecutor v Akayesu (Jean-Paul) (2002) 9 THRR 608...226, 229 International Criminal Tribunal for the former Yugoslavia Prosecutor v Krstic, 19 April 2004, IT-98-33-A, Appeals Chamber Judgment, ..229 for v Tadic, IT-94-1-AR72, 105 ILR 453, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995... 150, 169, 170, 221, 222, 226 Prosect Special Court for Sierra Leone Decision on Immunity from Jurisdiction of Charles Taylor (former President of Libya) Case No SCSL-2003-01-1, 31 May 2004, 128 ILR 239...226 Eritrea Ethiopia Claims Commission/Arbitral Tribunal Decision of the Eritrea-Ethiopia Boundary ‘Commission 13 April 2002, 41 ILM 1057...45 Iran — United States Claim Tribunal Amoco International Finance Corporation v The Islamic Republic of Iran (1987) 15 R 189...157 Iran-U! Hyatt International Corporation v Government of the Islamic Republic of Iran (1985) 9 CTR 72...149 Islamic Republic of Iran v United States of America Claim No A/18, Decision of, ‘Tribunal, (1984) 5 Iran-USCTR 251...45 Schering Corp v Iran (1984) 5 Tran-USCTR 361... 149-50 TABLE OF CASES ‘Yeager v Islamic Republic of Iran (1987) 17 Tran-USCTR 92...150 Arbitration Tribunals Aaland Islands case, International Committee of Jurists LNOJ Sp. Supp. No. 4 (1920)...71 Anglo-French Continental Shelf Case (1978) 18 ILM. 3974...4 BP Exploration Company (Libya Limited v Government of the Libyan Arab Republic (1973) 53 ILR 297...156 Caire (France v Mexico), (1929) 5 RIAA 516...150 Caroline case, Moore, Digest, Il, 24-30, 409-14; VI, 261-62; VI, 919-20... 175, 176 Chamizal Arbitration (Mexico v United States) (1911) 11 RIAA 309...90, 92 Clipperton Island Case (1932) 26 AJIL. 390... 82, 85 Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11...71 Garcia case (United States/ Mexico Claims ‘ommission) (1926) 4 RIAA 119...147 Gill, Re 6 AD 203...153 Island of Palmas Case (Netherlands v United States) (1928) 2 RIAA 829... 82, 83, 84, 85, 86, 87, 88, 89 Janes Claim (United States/Mexico Claims Commission) (1926) 4 RIAA 82... 147 Kuwait and American Independent Oil Co (AMINOIL) (1982) 66 ILR 518...156. ‘Neer Claim (United States/ Mexico Claims Commission) (1926) 4 RIAA 60...146 Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 499... 153, 154 Roberts Claim (United State’ Mexico Claims Commission) (1926) 4 RIAA 77... 147 Solis Claim (United States/Mexico Claims Commission) (1928) 4 RIAA 364... 150TABLE OF CASES Texaco Overseas Petroleum Co. and California Asiatic Oil Co v Libya (1977) 53 ILR 389...156 Tinoco Arbitration (Great Britain v Costa Rica) (1923) 1 RIAA 369, H 160...75 Domestic Courts AVUK...53,58 A (FC) and others (FC) (Appellants) v Secretary of State for Home Department (Respondent) [2004] UKHL 56, 16 December 2004... 59 A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) [2005] UKHL 71....60 A (FC) and others; (X) FC and another v Secretary of State for the Home Department (‘Belmarsh’) [2004] UKHL 56...212,214 Al-Adsani v Government of Kuwait (1996) 107 ILR $36, United Kingdom Court of Appeal... 58 Alfred Dunhill of London Inc. v Republic of Cuba (1976) 425 US 682, United States Supreme Court... 132 Arab Monetary Fund v Hashim [1988] 3 All ER 257, House of Lords... 54 Barbie, France 78 ILR. 126, Court de cassation decision of 6 October 1983...56 Boos v Barry (1988) 121 ILR 551, United States Supreme Court....54 . Aly Bush, Judgment 12 June 2008, United States Supreme Court... 58, 60,61 Boumedience Cutting case (UIS) 187 For Re 751 (1888)...118, 122, 123, 124 Demizpence, France 19 March 1993, No 141083, 99 RGDIP (1995) 1013, Couneil of State...54 Bichmann 36 ILR 5 Israel District Court of Jerusalem, Judgment of 12 December 1961...56, 117, 119, 229 Esther Kiobel et al v Royal Dutch Petroleum Co....58, 113, 125, 128 Filartiga v Pena-Irala (1980) 19 ILM 966, US CA, 2nd Circuit! 125, 126, 127 Foster v Neilson (1829) 27 US 253 US Sup Cte. S4 Grootboom, South Africa Supreme Court...205 Hamdan v Rumsfeld 29 June 2006, 548 US 196 US Sup Cr... 59, 60 Holland v Lampen-Wolfe [2000] 1 WLR 1573 HL... 134, 136 I Congreso del Partido [1983] 1 AC 244 HL...132, 135 Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia and others [2006] UKHL 26 HL...58, 128 Joyce v Director of Public Prosecutions [1946] 1 AILER 186 HL... 116, 122, 124 Kadic v Karadzié 70 F 3rd 232 (2nd York 1995), Rehearing Denied, 74 F 3rd 377 Qnd Cir, 1996)... 125, 126, 127 cir New Littrell v USA (No. 2) [1994] 4 All ER 203 CA... 136 Olga Tellis v Bombay Municipal Ci Indian Supreme Court. ..205 poration, Paquete Habana (1900) 175 US 677 US Sup Ct... 53,57 Paschim Banga Khet Mazdoor Sabha v State of ‘West Bengal, Indian Supreme Court...205 Polo Castro, 73 RDI (1990) 1038, 8 May 1989, Court of Cassation, Italy... 54 R v Bow Street Magistrates’ Court, ex parte Pinochet Ugarte (No.3) [1999] 2 All ER 97 HL... 56, 117, 119, 121 R(S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39 HL...212, 214 Rasul v Bush 542 US 466 US Sup Ct...58, 60, 61 Reference Re Secession of Quebec Judgment (1998) 161 DLR 385, Supreme Court of Canada... 54 Schooner Exchange v McFaddon (1812) 11 US 116 US Sup Ct...131Sengupta v Republic of India 65 ILR 325, EAT...136 Soobramoney, South Africa Surpeme Coure...205 Sosa v Alvarez Machain (2004) 542 US 692. US Sup Ct...57, 119,120 ‘Tel-Oren v Libyan Arab Republic (1984) 726 F 2d.774 US CA....125, 126, 127 Treatment Action Campaign (medications) case, South Africa Supreme Court...205 TABLE OF CASES Trendtex Trading v Central Bank of Nigeria a ) 1 AILER 881 CA...132 United States of America v The Public Service Alliance of Canada and Others (1992) 94 ILR 264, § Canada...136 ipreme Court of, Victory Transport Inc. v Comisaria General de Abastecimientos y Transportes 336 F 2d 354 (CA2 1964)...132Treaties and Conventions Antarctic Treaty 402 UNTS 71, 1959...94 Charter of Economic Rights and Duties of States, 1974...156 Charter of the International Tribunal at Nuremberg attached to the London. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis 82 UNTS, 280, 1945...225, 228, 230 Art 6...228 Art 6(a)...230 Charter of the United Nations (UN Charter) TS 994, 1945... 10, 11, 13, 14, 15, 16, 17, 76, 106, 158, 159, 162, 163, 165, 167, 169, 170, 172, 180, 182, 183, 187, 189, 195, 205, 207, 230 Chap VI...13, 158, 159, 162, 198 Chap VIL... 13, 162, 174, 182, 183, 18: 188, 189, 192, 194, 196, 197, 198, 230 Chap VIL... 198 Art 2(1)... 10, 138 2159 +78, 84, 172, 174, 180, 181, 183, 188, 192, 194 Art 2(7).--181, 185 Art 6...196 Art 27...16 Art 33...146, 159 Art 37(1)... 160 Art 39... 183, 188, 189, 192, 196 Art 41... 183, 189, 191, 192, 196 Art 42...183, 192, 196, 197 Are 43...196 Art 47...196 Are 48...197 Art S1...172, 173, 174, 178, 181, 182, 183, 185 Art 55...205 Art 56...205 Art94...13 Art 103...10, 169, 189 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment 1984, 1465 UNTS 85 114, 117, 119, 120, 204, 207 Convention on Cluster Munitions 30 May 2009...30, 37, 69, 221 Convention on the Elimination of All Forms of Discrimination against Women 1249 UNTS 13, 1979...204, 207 Convention for the Prevention and Punishment of Genocide 78 UNTS 277, 1948...32, 41, 114, 167,228, 229 Art IX... 167 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti- Personnel Mines and on their Destruction (Ottawa Convention) 1997...30, 37,2201 Convention on the Regulation of Antarctic Minerals Resource Activities, 1988...94 Convention Relative to the Treatment of Prisoners of War 1929,..219 Convention on the Rights of the Child 1577 UNTS 3, 1989...204, 207 Convention on the Rights of Disabled People 2006...207 Convention (IV) Respecting the Laws and ‘Customs of War on Land and its Annex: Regulations Concerning the Laws and ‘Customs of War on Land, The Hague 1907, UKTS 10...117, 119 Regulations 1907...217, 219 Art 22 Regulations. ..220 Covenant of the League of Nations...172 +38, 39, European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) 213 UNTS 222...43, 46, 59, 60,212, 213, 215 Art 3...59 Art 5...60,213 Art 5(1)...54 Art 5(3)...214 Art7...213 Art 8...54 Art 14...60, 214 Are 15,..212,214 Protocol 1, Art 1...46European Convention on State Immunity 1972...129, 132, 138, 139 European Energy Treaty Art 13...157 General Treaty of Peace between El Salvador and Honduras 1980...92 Geneva Convention on Upper Silesia 1922...62, 155 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31...61, 68, 114, 117, 119, 217, 218, 219, 220, 221,223 Art 3...220, 222, 223, 224 Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea 1949, 75 UNTS 85...61, 68, 114, 117, 119,217, 218, 219, 220, 221, 223 Art 3...220, 222,223,224 Geneva Convention III Relative to the Treatment of Prisoners of War 1949, 75 UNTS 135...61, 68, 114, 117, 119, 217, 218, 219, 220, 221,223 Art 3...220, 222,223, 224 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, in force 21 October 1950, (1950) 75 UNTS 287-417... 61, 68, 114, 117, 119, 217, 218, 219, 220, 221, 223 Art 3,..220, 222, 223, 224 Geneva Convention on the Continental Shelf 1958...29, 103 Art 6.0.4) Geneva Convention on the High Seas 1958...109 Art... 104 Geneva Protocol for the Prohibition if the Use in ‘War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare 1925...219 Great Lakes Region Peace Process... 198, 200 Hague Conference 1899... 159, 160, 219 Hag 161,219 Hague Convention for the Pacific Settlement of Disputes 1899... 161,219, 223 Harvard Research Draft Convention on Conference 1907, Jurisdiction with Respect to Crime (1935) 29 TABLE OF LEGISLATION AJIL Supp 443...114, 115, 116, 117, 119, 123, 124 Art 6-9...117 Art 10a...117 Helsinki Accords. ..76 International Covenant on Civil and Political Rights 999 UNTS 3 1966 (ICCPR)...12, 29, 38, 43, 203, 204, 205, 206, 207, 212, 213,214 Art 9(1)...213, 214 Art 27...73 Art 40...207 Art 41...207, 208 First Optional Protocol...205, 207, 208, 212,213 International Covenant on Economic, Social and. Cultural Rights 999 UNTS 3 1966... 12, 38, 203, 204, 205, 207 205 International Covenant on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS. 195... 167, 204 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, General Assembly resolution 1990, 45/158 of 18 December 1990...207 Protocol. Kellog-Briand Pact...84, 172 Landmines Jonvention....69 Montevideo Convention of the Rights and Duties of States 1933, 165 LNTS 1966...70, 75, 76,77, 81 Art1...71 Protocol | Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts 1977, 1125 UNTS 3...68, 119, 217, 218, 219, 220, 221, 224 Art 48...223 Art 51(2)...224 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts 197,TABLE OF LEGISLATION 1125 UNTS 609. 222,223,224 Art 1.,.222 Protocol on Environmental Protection to the 68, 217, 218, 220, 221, original Antarctic Treaty 1991....95 Siracusa Principles on the Limitation and Derogations Provisions in the ICCPR...214 Tokyo Charter...225 Treaty on the Principles governing the Activities of States in the Exploration and use of Outer Space including the Moon and other Celestial Bodies 1967,..94 Treaty of Sain Germain...72 United Nations Convention on Jurisdictional Immunities of States and their Property 2004... 129, 130, 131, 133, 136, 138, 139, 140 Art 5...135 Art 11(1)...135 Art 11(2\(a)...135 Art 12...139 United Nations Convention on the Law of the Sea (UNCLOS) 1833 UNTS 3, 1982...29, 30, 35, 96, 97, 98, 99, 100, 101, 102, 103, 104, 107, 108, 109, 111, 161 PeV1...100 PrXI...94, 108, 109, 110, 111 Pr XI, 1994 Implementation 108, 110, 111 Agreement... Art 2...102 Art 3...102 Art 17...106 Art 19...106, 107 Are 19(2)(c)...108 Art 23...101 Art 25...107 Art 30...107 Art 55...100 Art 56,..100, 104 Art 56(1)(a)...101 Art 56(1)(b)(ii)...100 Art 58...100 Art 61...101 Art 62(3)...101 Art 69...101 Art70...101 Art 76...104 Art 86... 109 Art 87...100, 105, 109 Art 136...94 Art 282(1)...160 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva 1980 13542 UNTS 137...220 Versailles Peace Treaty 1919 Art 27...225 Vienna Convention on Consular Relations 596 UNTS 262 1962...61, 63, 64, 77, 129, 141, 143 Art 36(1)(b)...63, Art 41...143 Vienna Convention on Diplomatic Relations 500 UNTS 95 1961...129, 141, 143 Art 2...142 Art 22...142 Art 22(2)...142 Arts 23-30...142 Are 31...142 Art 32...142 Vienna Convention on the Law of Treaties (VCLT) 1969... 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 47, 49, 61, 62,77 Prv...48 Art 2...39,40 Art 2(1)(b)...38 Art 2(1)(¢)...37 Art 7(2)...37 Art 8...37 Art 9(2)...37 Are 10...38 Art 12...38 Arts 14-16...39 Arts 19-21...42 Art 26...10 Art 27...62 Art31...45 Art31(1)..45 Art 31(3)...45 Arts 31-33...45 Are32...45 Art33...45 Arts 42-45...48 Are 43...29 Art $3...32Arts 54-64,..48 Art 54(b)...48 Art 60...49 Art 60(3)...49 Art 61(1)...49 Art 62...48 Art 64...30, 32, Art 65...48 Art 70...49 Art 70(1)...49 Vienna Convention for the Protection of the Ozone Layer 1985...161 Vienna Convention on Secession of States in respect of Treaties...79 1a Convention on Secession of States in respect of State Property, Archives and Debts...79 Vi Statutes of Criminal Tribunals Rome Statute of the International Criminal Court 1998 2187 UNTS 90...37, 39, 42, 69,217, 227, 228, 230 Art 5(2)...230 54, Art 6...229 Art 7...229 Art 8...230 Statute of the International Court of Justice TS 993, 1945...14, 16, 158, 162, 163, 166, 169 Chapter IV...163 Art 36...168 Art 36(1)...167 Art 36(2)...167 Art 36(3)...168 Art 36(5)...168 Art 38...19, 20, 21, 23, 25, 28, 29 Art 38(1)...10 Art 38(1)(a)...29 Art 38(1)(b)...22 Art 65...163 Art 65(2)...164 Arts 65-68...163 Art 67...164 Statute of the International Criminal Tribunal for the Former Yugoslavia 1993, UN Doc, $/25704 Art 2...229 Art 3(a)...220 TABLE OF LEGISLATION Declai ions Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 (XV) of 1960...69, 7 Declaration on the Principles of Friendly Relations 1970...184, 185 Declaration of Principles Governing the Sea Bed and Ocean Floor, and the Subsoil Thereof, beyond the limits of National Jurisdiction (Resolution 2749)...94, 110 Declaration of St Petersburg 1869...219 United Kingdom Declaration restricting, Jurisdiction... 168 United Nations Declaration on the Human Rights of Individuals who are not Nationals of the Countries in which They Live...147 Universal Bill of Human Rights...204 Universal Declaration of Human Rights 1948...29, 203, 204, 205, 206, 207, 209, 210, 213 Vienna Declaration and Programme of Action 1993...204 Guidelines European Commission Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (1991)...75,79 World Bank Guidelines on the Treatment of Foreign direct Investment Section IV(1)... 156-7 Law Commission Articles of State Responsibility International Law Commission's Draft Articles on State Responsibility Art 19...32, 33 International Law Commission (ILC) Articles of State Responsibility 1996... 146 Art L...146 International Law Commission (ILC) Articles of State Responsibility 2001... 144, 145, 148, 149, 151, 192, 154 Chapter II...149 Chapter V, Prt...152 149TABLE OF LEGISLATION Arts 4-11...149) Art 5...149 Art 6...150 Are 7...150 Art 8...150 Art9....150 Are10...150 Artil...151 Art 20...15: Art21. Art 22. Art23. Art 25 Domestic laws Algiers Agreement 2000 between Ethiopia and 162 ims Act 1789 (US)...55, 56, 57, 58, 113, 123, 125, 126, 127, 128 Anti-Terrorism, Crime and Security Act 2001 (UK) $.21...60 $.23...59, 60 5.25...60 Croatian Constitutional Act...76 Foreign Sovercign Immunities Act 1976 (US)...132 General Act on the Pacific Settlement of International Disputes 1928... 161 Human Rights Act 1998 (UK)...59 Lieber Code: General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field, Prepared by Francis Lieber, promulgated by President Lincoln as General Orders No. 100, 24 April 1863 (US)...219 State Immunity Act 1978 (UK)...58, 132 United States Constitution Art IL...54 Art VI,8.2...38 USC § 1350 US Code s.28...125 53, 54, 63 UN Resolutions General Assembly General Assembly Resolution 56/83...144, 146 General Assembly Resolution 40/144...147 General Assembly Resolution on Perma Sovereignty over Natural Resources rent (1962),..156 General Assembly Resolution 3171 (1973)...156 General Assembly Resolution 3314 (XXIX) (1974)...230 Security Council Security Council Resolution 188 (1964)...184 Security Council Resolution 232 (1966)...189 Security Council Resolution 252 (1968)...189 Security Council Resolution 242 (1967)...84 Security Council Resolution 418 (1977)...189 Security Council Resolution 687 (1991)... 192, 193 Security Council Resolution 757 (1992)...190 Security Council Resolution 827 (1993)...226 Security Council Resolution 955 (1994)...226 Security Council Resolution 1441 (1991)...193 para 1...193 para 12...193 ty Council Resolution 1701 (2006)...197 ty Council Resolution 660...192 Security Council Resolution 661...190 Security Council Resolution 678... 192, 193 Security Council Resolution 1368...178 Security Council Resolution 1373...16, 179 Security Council Resolution 1674...200 Security Council Resolution 1769 ...200 Security Council Resolution 1973...200This questions-and-answers book has been written by a Professor of International Law with many years’ experience teaching the subject in four universities and who has also served as an external examiner in the subject. The purpose of the book is to give guidance to students on what might be expected in the answers to typical examination questions on the various topics that together constitute the study of public international law. A distinguishing factor in public international law is the tendency to rely not only on jurisprudence but also on opinions of distinguished academics which, after all, is one of the subsidiary sources of public international law. As a result, adequate preparation must include access to various texts, monographs, and articles on each one of these areas of discussion. It is not enough to rely on a standard textbook as, at best, the student might expect to receive a lower second class mark. Furthermore, this field, as with all areas of law, is developing rapidly and students will be well rewarded by sourcing recent articles for the topics that they are revising. The international law articles databases are replete with recent articles on a wide variety of international law subjects. There are more and more specialized law journals that are well worth reviewing and there may be a journal with articles right on point. It is also important to note that individual lecturers will place emphasis on different parts of the course. Although this book has attempted to cover all of the areas of concern, it would be a foolish student who did not pay attention to the parts of the course that the lecturer pays particular attention to. It is also well worth exploring the publications of your lecturer to see what area he or she is particularly interested in. Unlike some of the other areas in the study of law, examinations in public international law do not have a preponderance of problem questions. There may indeed be problem questions but essay questions are just as likely. Therefore, the questions in this book have tended to be balanced between the two types of question. | am often asked if there is a special skill to answering either type of question. There is not—both require extensive preparation of the jurisprudence and literature in the field. They both require a structurediTRODUCTION answer with a clear argument, even if the argument favours both sides of a controversy. However, it should be noted that there is a necessity in a problem question to refer to the facts in the problem and not just to launch into an academic discussion of the subject. ‘The problem questions will often require the student to reach a conclusion with respect to the fact situation. It is very important in both types of question to read the question carefully and to draft a rough outline to the answer first. The most important point in either type of question is to answer the question that you are asked, rather than embark on an answer to the question you wished you had been asked. Another temptation in public international law is to embark on an extensive analysis of the political situation rather than answering the legal question. Examination questions require a legal answer albeit with evidence of knowledge of the political and historical environment. Also critical is that an examiner is not asking you to write all you know about a subject. ‘Time management is crucial. You must divide the questions between the number of hours that you are allotted and stick to the correct amount of time for each question. It is com- mon for students to run out of time on the last question because of poor time management. It is not possible in such a vast subject to cover all of the possible topics that might be canvassed in an examination. These topi how a proper examination answer in this subject might be written. Above all, memoriz~ ing this text is not a substitute for proper preparation and study of the topics contained in your syllabus. Good reading and the best of luck in your examination preparation. s, however, will give you an opportunity to seeIntroduction ‘This chapter will address important questions of the historical and philosophical devel- opment of public international law including the often-cited ‘party question’ of whether this discipline is law ar all. Generally, a public international law examination will have one such general question on the nature of the subject. This chapter contains four essay questions. The principles that apply to answering these questions are to draw up a plan in rough, including a proper introduction, a series of substantive points, and a conclusion. A danger with essays is to ramble in order to include everything you know—resist this temptation, as the marker is looking for an organized and coherent structure. Essay questions on theoretical topics require a spe- cific style. They certainly require a base of academic opinion and plenty of examples on the points that you are making; but, for high marks, they also need a touch of original analysis. That would be your opinion on the topic based on your reading and reaction to the various opinions on the issue. It is quite acceptable to see both sides of a contro- versial issue, but then you must indicate clearly that you were persuaded by neither opinion and give reasons for so doing. Therefore, success in answering these questions depends on a broad reading of the available literature and a historical and philosophical approach. Those students who spend the beginning of the course or perhaps even the vacation period generally reading on public international law and the history of (particularly) the twentieth century will be rewarded for their efforts. These questions are difficult, as there is a temptation to engage in political arguments rather than develop an answer based on international law literature and cases. The three elements in any question must be the published work on the topic, any relevant interna- tional case law, and any relevant historical situations which support the existence of vari- ous rules of public international law. Therefore, the starting point for preparation of‘THE NATURE OF PUBLIC INTERNATIONAL LAW these essay questions is to spend some time in the library doing research, as if you were preparing for an assessed essay or piece of coursework. This first chapter and the remainder of the book will contain suggestions of relevant literature, but these are suggestions only. The well-prepared student will impress by locating recent relevant literature on any of the topics in this book by conducting rele~ vant online database searches. It is absolutely essential to name the sources that you use, whether in case law or in academic literature. Quotations are never required in an exami- nation, but summarizing the substance of the various arguments is critical. For this topic, suggested literature includes: Fitzmaurice et al. (2007); the chapters by Neff et al. in Evans (2010); the introductory chapters in Cassese (2004); Shaw (2008); and Harris (2010). ? SU OOOO CUE ee RCC ETUC) us Peconic ithas often been argued that international law derives from Western philosophy and history. There are two equally correct approaches to this question. One avenue of discussion is to take a tradi- tional approach and trace the development of international law from the European enlightenment and Hugo Grotius, who is often credited as the ‘father’ of international law. A second and perhaps more interesting approach would be to argue that from ancient times every culture has developed some sort of international law to deal with relations with other cultures. An excellent source for that account would be the chapter by Neff (one of only a handful of international law historians) in Evans (2010), as he traces the history of international law from ancient history. Its this second approach which will be addressed in this answer. ‘A fully developed answer will need to address both the historical and philosophical development of the subject and display knowledge of the key philosophical figures in international law theory from ancient times through to modernity, It must mention specifically those aspects of interna- tional law which existed in the various historical eras ‘As with all essay questions, it is important to maintain a position on the answer. There are no right and wrong answers in this topic, just versions of opinions. However, its important to support your opinion with knowledge of, and reference to, the relevant literature. Each answer should begin with an appropriately considered answer plan, so it is important to take a few minutes before beginning your writing to consider the content and structure of the answer.‘THE NATURE OF PUBLIC INTERNATIONAL LAW © son * Developments in international law in other ancient cultures. * Greek and Roman civilization and natural law. * Continuation of natural law theories in the Middle Ages * The flowering of international law in the sixteenth and seventeenth centuries. * The development of positivism in the eighteenth and nineteenth centuries, * Modern international law theories, Suggested answer Professor Harri ’s statement is not entirely correct, as international law has many different historical and philosophical roots, other than those of the Europe of the sixteenth and seventeenth centuries, although this is the period when international law flowered. It can be argued that international law has developed historically and philosophically over many centuries, in many cultures and that a rudimentary system of international law existed even in ancient societies. To take issue with Professor Harris on his viewpoint one can refer to Neff’s ‘A short history of international law’ in Evans (2010), which traces the development of international law in many histori- cal traditions. Neff persuasively contends that persons from even the most diverse historical cultures sought to relate to one another in a peaceful, predictable, and mutually beneficial way. His first historical example is Herodotus’ description of ‘silent trading’ between the Carthaginians and an unnamed North African tribe. He also points out that Mesopo- tamia, northern India, and classical Greece had three areas of international law: diplo- matic relations, treaty-making, and rules governing the conduct of war. As these are still three major areas of international law, it esta long historical roots. He also discusses: the Islamic empire of the seventh century AD, and the body of Islamic law that dealt with relations between states in the Islamic world and that body of the law regarding relations with the outside world. Shaw (2008), however, argues that these systems were geographically and culturally restricted, as there was no conception of an international community of states. He does, however, admit that there was a powerful philosophical principle—the concept of natu- ral law—which influenced the development of international law originating from Greek and Roman thought. This philosophy argued that a body of rules of universal relevance could be determined by human intelligence, and this constituted the roots of human rights. As Neff argues, one of the principal proponents of this philosophy was the Roman Cicero who argued that this law of nature would be ‘spread through the whole human community, unchanging and eternal. lishes the view that international law has‘THE NATURE OF PUBLIC INTERNATIONAL LAW Neff and Shaw also discuss international law during the medieval period. Shaw points out that throughout Europe during this period maritime customs began to be accepted, founded on the Rhodian sea law and which was a Byzantine work. In addition, there was a ‘continental law merchant’, which was a series of regulations and practices gov- ening trade. Neff asserts that the area of diplomatic relations developed in this period, with diplomats increasingly being accorded a broad degree of immunity. He also argues that, beginning in around the eleventh century, European states began to conclude bilateral treaties which spelled out reciprocal guarantee: historical period, ‘just-war’ theory also developed in the writings of St Augustine and St Thomas Aquinas, who continued the natural law theory with the modification that all laws originated with God. Certainly, one has to agree with Harris that the constituted what Neff terms ‘the classical age’ of public international law. The major scholar of that era was Hugo Grotius whose main work was On the Law of War and Peace, published in 1625, and in which he further developed the just-war theory and argued that the law of nations was distinct from the law of nature. The purpose of the Jaw of nations was to regulate the external conduct of rulers. Shaw also points out that the development of international law was further assisted by the Spanish writers Fran- cisco Vitoria and Francisco Sudrez and the Italian Gentile, but agrees that Grotius can be seen as the father of international law. His enduring contribution in Shaw’s view is of fair treatment. During this teenth and seventeenth centuries his proclamation of the freedom of the seas. All of these writers continued the natural law tradition first developed by ancient Greek and Roman philosophers and continued in the Middle Ages with St Augustine and St Thomas Aqu seventeenth century who continued this work was Samuel Pufendorf, who was an exponent of this naturalist school. Therefore, up to the nineteenth century, international law had developed over cen turies, with its flowering in the classical age. Although Grotius might be known as the chief architect of our modern interna scholarship are in the ancient natural law texts and developments of mercantile law in the Middle Ages. In the eighteenth and nineteenth centuries another philosophical tradition developed i enced modern international law: positivism. Such scholars as Zouche, Bynkershoek, and Emerich de Vattel emphasized the development of international law through consensual practice, the precursor to the theory of customary international law. Vattcl introduced the doctrine of the equality of states. However, natural law did not disappear as it gave way to concepts of natural rights in the writings of Locke and Rousseau and their political theories which influenced the French and American revolutions. It is important to note that modern international law has also been profoundly influenced by developments in the nineteenth and twentieth centuries; up until the end of the Second World War it was dominated by positivist thinking and the devel opment of a plethora of bilateral and multilateral treaties, such as the treaties that as. Another scholar in the nal legal philosophy, the roots of his contrast to Grotius’ natural law theory which has also influ-‘THE NATURE OF PUBLIC INTERNATIONAL LAW constituted the results of the Hague Conferences, the establishment of the League of Nations, the Permanent Court of Justice, and, finally, the United Nations (UN). Neff argues that the instrumentalist approach gave positivism a moral ambivalence cul- minating perhaps in the Berlin conference in 1884 which resulted in the imperial partitioning of Africa. Among the writers influencing international theory were de Martens writing a treatise on state practice in 1785 and Wheaton, whose Elements of International Law in 1836 followed the same positivist pattern. However, by the middle of the twentieth century and the development of human rights conventions and concepts such as jus cogens and obligations erga omnes we sec a return to natu ral law philosophy. Recently in the late twentieth and early twenty-first centuries, in addition to the stag- gering developments in international legal instruments (multilateral law-making con ventions) and international institutions (the UN, World Trade Organization (WTO), International Criminal Court) we have seen the rise of a diverse range of international law theories, even though, as Boyle and Chinkin (2007) argue, there is a continuation of natural law and positivism. One recent example is critical legal theory which chal- Tenges all of the language that is used in international law, as embodied by Martii Koskenniemi in his writings, including ‘What is international law for?’ (reproduced in Evans, 2006). This theory seeks to deconstruct the language used in international law and analyses the basic meaning, as Koskenniemi’s famous book title indicates, of lan guage which ranges from ‘apology to utopia’. Juxtaposed with this philosophy are writers on liberal internationalism, such as Teson and Slaughter and the New Haven school which examines the process of international law-making as expounded by ‘Myers McDougall and Michael Reisman. All of these theorists examine international law through the lens of philosophical thinking that might influence the development of international law into the future. In this brief historical review, it can be seen that international law was developed over s and the Spanish philosophers many centuries and that the classical age of Grot might only be one stage in the continuing development of public international law that continues into the twenty-first century. There continue to be divergent theories of inter national law, which will inform future development of the subject een This question relates to the general issue of ‘cultural relativism’ canvassed later in this book. The background to the formation of international law might be primarily European but the only way to eliminate arguments about international law being a ‘Western’ construct is to trace the back- aground back further An excellent student inthis area will also love history!‘THE NATURE OF PUBLIC INTERNATIONAL LAW Itcan be argued that international law does not exist in a world of power politics—a state- ment that is particularly true since the war in Iraq. De ne ree ee eee ee eeu ues Although this might be the ‘party question’ in international law, itis a particularly pertinent ques- tion given the international crisis that resulted over the war in Iraq in 2003 and the debate among international lawyers concerning the effectiveness of collective security particularly in the wake of the inaction conceming Syria. There has been a long-standing debate between international law and international relations scholars over the nature of the international system—is it governed by power politics or the international rule of law? A summary of the realist school of international relations is found in a chapter by Koskenniemi entitled ‘Carl Schmitt, Hans Morgenthau, and the image of law in international relations’ (in Byers, 1999). A relevant article to discuss here is ‘Why the Security Coundil failed’ (Glennon, 2003). The main tenor of this article is that the post-war collective security system has disintegrated in light of the division over the war in Iraq. Glennon is the first article that | give to my international law students in the first class to stimulate debate concerning international law. Support for the existence of international law can be found in Jennings and Watts, Qppenheim's International Law (1992). This position is also expressed in academic arguments of an emerging international constitution. For this position, see: von Bogdandy (2006); Christian Tomushchat's two Hague Academy lectures: ‘International law: ensuring the survival of mankind on the eve of a new century’ (1999); ‘Obligations arising for states without or against their will’ (1993), and Jirgen Habermas (2006). A student can choose to agree or disagree with the staternent but should discuss the opposing Views on the existence of rules of international law by reference to theoretical literature. It is important to set out the position early in the answer and support it throughout. This question also illustrates the importance of keeping up to date with current affairs! * Discuss the theory of realism as embodied by Carr and Morgenthau * Discuss the support of later writers, including Glennon, in the wake of the war in Iraq, * Introduce the idea of international constitutionalism and the opposing argument of Christian Tomushchat and Jurgen Habermas. * Conclude with your view of this issue‘THE NATURE OF PUBLIC INTERNATIONAL LAW Suggested answer The statement that international law does not exist in a world of power politics is indeed controversial. It has i s roots in the post-war international relations school of realism but this view was revived in the wake of the crisis over the war in Iraq and now continues with the inactivity of the Security Council in the face of large loss of life in the conflict in Syria. It is correct that the invasion of Iraq can be seen as epitomizing power politics and unilateralism as the United States and its allies arguably disregarded the rules of international law. However, one can also assert that, if anything, the effort by the United States and the United Kingdom to support their action by international egal arguments and the reaction against the war in Iraq by a majority of states has strengthened the international rule of law. Furthermore, the reaction of the vast major- ity of states in the international community to the Russian and Chinese vetoes over resolutions concerning Sy law. This answer will describe opposing views on power politics and arrive at conclu- sions on this statement. First, Koskenniemi in ‘Carl Schmitt, Hans Morgenthau, and the image of law in interna- tional relations’ in Byers (1999) outlines the history of the realist school of international relations. Realists such as Carr and Morgenthau argued that states were self-interested actors engaged in a ruthless struggle for power, which can be defined as the ability of a state or states to control or influence directly how other states behave. Morgenthau (1954), was very influential in this field, and asserted that the international legal system was at the mercy of sovercign states. He stated that governments were ‘anxious to shake off the restraining influence that international laws have upon their foreign policies’. Another realist, Carr, proposed that international law could be changed at the will of states. Mor- genthau supported his theory by arguing the serious weaknesses in the enforcement system of international law. His theory was later developed by a new generation of writers, such as Waltz (1979), who rejected international law as a structural element in the international system. In the wake of the division over the Iraq war, the realist theory was revived. Glennon’s (2003) provocative article argued that the division in the Security Council over the invasion of Iraq was the ‘dramatic rupture’ that ended ‘the grand attempt to subject the use of force to the rule of law”. Glennon asserted that the Security Council would only be relevant if it dealt with matters not bearing directly power. It has to be said that Glennon fails to take into account the efforts of both the United States and the United Kingdom within the Security Council to argue the legality of the intervention in Iraq as supporting previous Security Council resolutions. There is a clear disagreement about this argument within the international community but both sides argued international legality. Although it may be argued that the realist theory is compelling, there is an equally per suasive opposite opinion. Jennings and Watts (1992) discuss the issue of the legal force of international law. They argue that the problem of whether international law is law prop- etly so called, has been a problem of definition. Different definitions of what constitutes Jaw can produce different answers to the question. For example, if a definition is drawn up 1a can be seen as further support for the rule of international on the upper hierarchy of world‘THE NATURE OF PUBLIC INTERNATIONAL LAW based on municipal law it might be unnecessarily restrictive. Jennings and Watts propose that law was defined as a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power. They acknow- Jedge that in the past the weakness in international law was the lack of enforcement but in the past half century an emerging system for the enforcement of international law is dis~ cernible. This includes the existence of law-making treaties and certain aspects of the activities of international orga national legal order is the recognition that certain rules have the character of peremptory ations. Other indicators of growing maturity of the inter- norms known in international law as jus cogens and Art. 103 UN Charter which estab- lishes for members the superior nature of obligations under the UN Charter. This view is supported by von Bogdandy (2006) who refers to the German school of international constitutionalism. Two of philosopher Habermas. Tomushchat (1993) in his two series of Hague Academy le; tures traces developments in international law in the wake of the end of the cold war 's adherents are Tomushchat and the famous towards rules and principles which govern the international legal community. In his lectures Tomushchat argues that there is an international legal community guided by basic rules which are the norms of juss cogens and obligations erga omnes and thus there is an emerging international constitution based on an international rule of law. In further support of his thesis, Tomushchat argues that there are a number of instru- ments which set out the rules of the international legal order. These instruments include: Art. 2(1) UN Charter that sets out the principle of the sovereign equality of states; Art. 38(1) Statute of the International Court of Justice which contains a list of the different categories of rules of international law, including customary law and treaty laws and Art. 26 Vienna Convention on the Law of Treaties, which declares that every treaty in force is binding on the parties to it and must be performed in good faith. This argument has been taken up more recently by Habermas (2006), in which he argues that the world dominated by nation states is in transition towards a global society. He addresses those sceptics such as Glennon (2003) who argue the end of collective security, as his main argument is that the international reaction against the war in Iraq, if anything, supports the idea of an international rule of law. In examining the academic literature on this topic and indeed the international reac- tion concerning the war in Iraq as discussed by Habermas, one could agree with the view of Tomushchat. Since the advent of the UN Charter, there has been an emergence of an international legal community governed by the rules and principles of interna tional law. These rules are embodied in lav public international law. The emerger evidence of the debate over the legality of the invasion of Iraq as it can be seen that many states particularly in Security Council debates referred to a binding rule of inter~ making treaties and peremptory rules of of such a system can also be supported by the national law, the prohibition against the use of force, in their arguments against the war. The British Chilcot inquiry regarding Iraq concentrated extensively on legality with testimony from former Foreign Office legal advisers. Furthermore, debate over the situations in Libya and Syria focused on international criminal liability of the leaders of these nations. Based on these arguments, it can be argued that the statement thar international law does not exist in a world of power politics is incorrect. sues ofLEGAL PERSONALITY AND THE CREATION OF STATES © Question 2 The sovereign State of Napanee, a member of the UN and located in Africa, is composed of three provinces made up of diverse ethnic groups, Odessa, Kingston, and Brockville. The state had been ruled for the past twenty years by a dictator known as ‘Big Daddy’ who recently passed away. The federal government is now composed of a ruling council of lead- Ce eee Ce cas The province of Odessa has the largest area and ethnic group, the Odessans. The second province in size is Kingston and its ethnic group is the Kingstonians. This province has always been unhappy under Big Daddy and now that he is dead has announced its inten- tion to separate. Thirty per cent of Kingston is also Odessan and this group refused to vote in the recent independence referendum which was passed by 90 per cent of those who voted. The day after the referendum, an elected group of Kingstonians declared a separate Reus cis Does customary international law or any existing treaty law, including human rights covenants, rec- Ce RC ee ec a eee Pree © 20m. This is an example of a problem question with very similar facts to the break-up of the Socialist Federal Republic of Yugoslavia (SFRY). The question seeks to elucidate the student's knowledge of the classic legal formula for creation of a state and the debate as to whether self-determination should be an additional criterion. The role of self-determination is very controversial, as it is not one of the traditional accepted criteria for statehood This problem question calls for an answer which contains a combination of recent state practice, including the important work done by the Badinter Commission concerning the Federal Republic of Yugoslavia (whose findings are neatly set out in Harris (2010)) and academic discourse and international case law. A pertinent opinion is the ICJ's advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 9 July 2004. An excellent theoretical analysis of this topic is the chapter on self-determination in Higgins (1994). Aron * Discussion of criteria for statehood as set out in the Montevideo Convention. * Application of the criteria to this problem question. * Discussion of self-determination and whether this allows for secession from an existing state and the creation of a new state,LEGAL PERSONALITY AND THE CREATION OF STATES and responsibilities independent of the state but they do not as yet have the same degree of participation as states. (d) The Kurdish peoples—peoples constitute ethnic and cultural groups which claim the right of self-determination. This norm is confirmed in Resolution 1514 (XV) on the Declaration on the Granting of Independence to Colonial Countries and Peoples. Cases in the ICJ include the 1960 South West Africa cases, the Western Sahara case, and the East Timor case, and accept there is an international right of self-determination. However, at best, it could be argued that peoples have some status as their rights as groups are considered by some of the human rights mecha nisms and within deliberations at the General Assembly and Security Council. They do not as yet have full international legal personality as they cannot bring or respond to international litigation. {e) Shell Oil ple- duction of corporate norms of social responsibility in human rights law. There are allegations that Shell Oil for example has been responsible for environmental and human damage within the Niger Delta region. It cannot be argued that corpora- tions have international legal personality, as such, as they are subject to the par- ticular national jurisdiction in which they are incorporated. There is a movement within human rights to bring corporations within international legal responsibility by the draft norms of corporate social responsibility, but they have been adopted by neither the Human Rights Council nor any sovereign states. Corporations have been brought into the international arena only voluntarily within such mecha- nisms as the global compact but it cannot be argued that they have full interna- tional legal personality. transnational corporations: this is very topical because of the intro- (f) Human Rights Watch—this entity is part of what is now known as international civil society often called non-governmental organizations (NGOs). Other exam- ples of such groups include Amnesty International and Greenpeace. These groups have become participants in treaty negotiations such as the Statute for the Interna- tional Criminal Court and the Landmines and Cluster Munitions Conventions and recently as parties in human rights cases in the African and Inter-American system. They also file independent reports when human rights records of states are reviewed by the human rights treaty enforcement bodies in the United Nations system. However, it cannot yet be argued that they have international legal personality as they have no capacity to enforce their rights within international tribunals. Cen The successful student will start with a definition of legal personality. Its important to give spe- cific examples for each category as how these entities are dealt with in international law. This is an active area of development as NGOS in particular are winning more and more rights within the international community.LEGAL PERSONALITY AND THE CREATION OF STATES Se Suggested answer Article 1 Montevideo Convention on the Rights and Duties of States 1933 sets out the criteria for statehood: The State as a person of international law should possess the following qualifications: {a) a permanent population; (b) a defined territory; (c) government (d) capacity to enter into relations with other states. This set of criteria has now passed into customary international law. There are now 192 members of the UN, and Kosovo has recently declared independence. As new states are coming into existence all the time, these criteria are very important. It is this standard that the independence of Kingston must be assessed against. For each criterion there are examples of state practice and case law. (a) Permanent population—as Shaw (2008) and Warbrick (in Evans, 2006) argue, although the existence of a permanent population is required, there is no minimum number of people specified. Examples of state practice are the recognition of Nauru and Tuvalu which have 10,000 and 12,000 people respectively. In this case, King- ston has a clear recognized population but with a significant cultural minority. (b) Territory—the case of Deutsche Continental Gas-Gesellschaft v Polish State (1929) is pertinent. The German-Polish mixed arbitration panel held that in order. for a state to exist and be recognized as such, it is enough that its territory has a sufficient consistency, even though its boundaries have not been accurately delim- ited. Another example is obviously Israel which to this day still does not have set- tled borders. In this case, the province of Kingston has had long-standing provincial standing doc- trine of uti possidetis. A recent example of state practice could be Bosnia, which was constituted a state during an armed conflict when its territory and population were not properly delimited. boundaries which can constitute national boundaries under the lon; (©) Government—there are several examples of state practice concerning the necessity for a stable government. A pertinent example of state practice is the Aaland Islands case. In this situation the International Committee of Jurists prepared a report which considered the situation of Finland in 1917-18, and declared that as of May 1918 a stable political organization existed. An example of failed state—an entity that does not have a government—is the case of Somalia which continues to this day in a state of constant civil war after the disastrous UN intervention. However, according to exists as a state even though there is not an effective formal government. Shaw argues that recent practice of the recognition of Croatia and Bosnia-Herzegovina when significant parts of their territories were controlled by other forces modifies the criterion of effective control of a government. In the case of Kingston there is an independent government elected by the people in spite of 30 per cent of the population failing to take part. This is a similar situa~ Warbrick, Somalia stilLEGAL PERSONALITY AND THE CREATION OF STATES tion again to Bosnia and Croatia in the break-up of the former Yugoslavia and the recognition given to the break-up by the Badinter Commission. (d) Independence—capacity to enter into relations with other states requires factual as well as legal independence from other states. So this means that puppet states can lose independence. An example was Manchukuo which came into existence after Japan invaded Manchuria, a province of China in 1931. The League of Nations sent a commission which reported and the League of Nations decided that sover- eignty over Manchuria belonged to China. An excellent case example is the Austro-German Customs Union case, in the (PCIJ) in 1931. Austria and Germany created a customs union in 1931. The court had to con- sider whether Austria was still independent. The court held that according to the Treaty of Saint-Germain Austria had to continue as a separate state. The court held Austria was still independent. Different aspects of independence were that the state had the sole tight of decision in all matters economic, political, and financial. Independence is the normal condition of states according to international law and can also be described as sovereignty which means that the state has no authority over it other than that of international law. Other examples are the cases of the Transkei and other South African homelands. In 1976 South Africa established satellite homelands and transferred sovereignty to an African government over Transkei. The UN General AssembI lishment of these homelands, as they were to continue apartheid and destroy the terri torial integrity of South Africa and c: existence of the territory. Another example is the area of northern Cyprus. The Turkish government invaded northern Cyprus in 1974 and controlled 36 per cent of Cyprus. Turkey declared the Turkish Republic of Northern Cyprus with its own constitution. The Security Council declared that Turkey’s intervention wa In the case of Kingston, the issues of independence and capacity to enter into relations with others are not resolved. As with Bosnia and Croatia, the state of independence and ability to enter into relations with other nations will depend on recognition by other nations or entities such as the European Union (EU). The problem of the Kingstonians also poses the question as to whether self-determina- tion should be a criterion is the creation of states as the country has declared independ- ence on the basis of sclf-determination. This principle of sclf-determination is very condemned the estab- led on other governments not to recognize the legal and therefore it is not a state. controversial. However, since the end of the cold war, this is how most new states are being created. In the post Second World War, it became a critical part of UN practice on account of the policy of decolonization. A key international instrument is the Declaration on the Granting of Independence to Colonial Territories and Peoples UN General Assem- bly Resolution 1514 of 1960 under which self-determination is a right where peoples freely determine their political status and freely pursue their economic, social, and cul- tural development. The most recent case to consider this issue is the advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian TerritoryLEGAL PERSONALITY AND THE CREATION OF STATES in the ICJ. The court assessed the impact of the construction of the wall on right of the Palestinian people to self-determination. The court stated that the right of peoples to self- determination was a right erga ommes (binding on the international community as a whole). This followed the dicta in the Western Sahara case IC] Rep. 1975, at 12 where the court held that the principle of self-determination was paramount and a principle of customary international law. See also the East Timor case ICJ Rep. 1995, at 90. However, there are recent examples of state practice that have nothing to do with a post-colonial situation including the situation in the former Yugoslavia and the recent declaration of independence by Kosovo. In the early 1990s the disintegration of the former Yugoslavia resulted in turmoil over which portions constituted states. The EU had a great interest in the situation and appointed a commission known as the Badinter Commission to investigate. In its Opinion No. 2 it addressed the question of whether the Serbian people in Croatia and Bosnia-Herzegovina had a right to sclf-determina- tion. The commission declared that all the implications of self-determination were not spelled out in international law. Would it involve changes to existing frontiers? The Commission did not grant the Serbian population the right to a separate state. However, after the NATO campaign in 1999, part of Serbia, the province of Kosovo, became a territory administered under the auspices of the UN. In 2007 the provincial government declared its independence from Serbia recognized by the United States and the EU but strongly opposed by Russia. It remains to be seen whether Kosovo becomes a fully functioning state within the international community. The International Court of Justice released its advisory Opinion on 22 July 2010 and the majority of the court accepted the lawfulness of the declaration of independence. However it did not rule on the more thorny issue of whether there is a right of external self-determination. In the various instruments in the UN, self-determination is tempered by caution against violation of territorial integrity—acceptance of colonial boundaries were not to be challenged after independence under the principle of uti possidetis—therefore, self- determination is carefully balanced with the importance of national unity and territo- rial integrity. According to Higgins (2004: 123) ‘the right of self-determination continues beyond the moment of decolonization and allows choice as to political and economic systems within the existing boundaries of the state’. Howeve believe that self-determination is a right which authorizes minorities to break away, one could argue that state practice in the 1990s may be supporting just such a practice. However, based on the international case law and academic opinion, including Hig- gins, it can be argued that minorities are to be protected—through the guarantee of human rights, including Article 27 International Covenant on Civil and Political Rights and when a particular problems arises, for example, Iraq and the Kurds, internal auton- omy may provide the best guarantee for the realization of these rights. However, auton- omy is not independence. The right of self-determination is interlocked with the proper protection of human rights, but these are discrete rights not to be confused with each other. Therefore, at this stage, one cannot argue that Kingston is entitled to be a sepa rate state based on self-determination. en though Higgins does not