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M. Other sources of international law

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• UN Security Council decisions chapter VII : “Binding decisions of international organizations”

II. Public International law : Subjetcs Relation International-National law, Human rights
• The subjects of international law include states and non-state actors. combined independent
• The relationship between national and international law can be categorized as monism, dualism, or
pluralism. acoexist
• International and regional human rights law is discussed, including UN human rights treaties and
supervision and European human rights law.
• The 'subjects' doctrine is explained, with the ICJ's 'Advisory Opinion' on Reparation for Injuries as a
reference.
• The subjects of international law have international legal personality, meaning they have rights and
duties under international law.
• The 'subjects' doctrine acknowledges that legal personality is relative based on the needs and
development of relations in the international community.
• An overview of subjects in international law is provided, which includes states, non-state actors,
international organizations, individuals, peoples, and private companies.
• To qualify as a 'state,' the Montevideo Convention specifies criteria such as a permanent population,
defined territory, an effective government, and capacity to enter into international relations.
• The issue of statehood and recognition is discussed, with Israel, Kosovo, and Palestine given as
examples of entities with complex and politicized considerations.
• The distinction between the constitutive theory and declaratory theory in recognizing statehood is
mentioned.
• The practical effects of statehood, such as the ability to function as a 'state' in relation to some but not
others, and the role of UN membership in consolidating statehood are examined.
• The legal personality of international organizations is explored, using the example of the UN claiming
reparations for the murder of Count Bernadotte in 1949.
• The ICJ acknowledges that international organizations possess functions and rights on an international
level.

◦The Relationship between National and International Law

• International organizations possess legal powers to discharge their functions, rights, and duties
entrusted to them by states through "constituent treaties" like the UN Charter or EU treaties.
• There is a relationship between national and international law, with the International Court of Justice
and the European Court of Human Rights as examples of institutions that deal with both.
• National law can have an effect on international law, as stated in Article 27 and 46 of the Vienna
Convention on the Law of Treaties.
• The sources of international law include treaties, customary international law, and general principles of
law, as specified in Article 38 of the ICJ statute.
• There are two theories regarding the relationship between international and national law: monism and
dualism. The UK's translation of the European Convention on Human Rights into its national law is an
example of dualism.
• The Netherlands follows a moderate monism approach, where international law automatically becomes
part of domestic law without the need for separate translation acts.
• International norms must have a "self-executing" character for people to rely on them or for courts to set
aside national law.
• International human rights law recognizes the individual as a rights holder, with the ability to claim
rights at an international level and states as the main duty bearers.
• The historical origins of international human rights law can be traced to ideas of natural law, human
dignity, religion, societal values, and historical events such as the Magna Carta, the Age of
Enlightenment, and the Age of Industrialization.

◦Development of Human Rights: Enlightenment to Present

• Age of Enlightenment in the 18th century laid the foundation for modern human rights with concepts
like Universal Natural Rights, Human Reason, and Social Contract Theory.
• The Age of Industrialization in the 19th century brought the establishment of labor rights, leading to the
creation of the International Labor Organization in 1919.
• The Universal Declaration of Human Rights (UDHR) was formed in 1948, based on the UN Charter
(1945) and aimed to protect universal human rights.
• The UDHR was not legally binding but provided the framework for two binding human rights treaties in
1966: International Covenant on Civil and Political Rights (ICCPR) and International Covenant on
Economic, Social, and Cultural Rights (ICESCR).
• The proliferation of human rights treaties occurred after WWII, including the European Convention on
Human Rights (1950) and the African Charter of Human and People's Rights (1981).
• Human rights include civil, political, social, economic, and cultural rights, and there are positive and
negative rights and obligations.
• Different committees and monitoring mechanisms, such as the Human Rights Committee and the
Committee on Economic Social and Cultural Rights, oversee the implementation and enforcement of
human rights treaties.
• The United Nations Human Rights Council, established in 2006, monitors human rights based on the UN
Charter and conducts peer reviews through the Universal Periodic Review.

◦The European Court of Human Rights and Admissibility Criteria

• The European Court of Human Rights has 15 independent judges who make binding judgments for the
parties involved in a case.
• The court handles both Individual-State complaints and State-State complaints.
• In order for a complaint to be admissible, it must satisfy certain criteria :
‣ The exhaustion of local remedies
‣ Adherence to a time limit (within 6 months)
‣ Meeting the victim criterion.

III. Public International law

• The foundation of jurisdiction is "State sovereignty" and "territorial sovereignty" according to the SS
Lotus-case (1927) and Island of Palmas-case (1928).
‣ State 'jurisdiction' in international law entails exclusive sovereign rights to prescribe,
adjudicate, and enforce law within the state's territory.
‣ State 'territory' includes land masses, internal waters, territorial seas (12 nautical miles wide),
and airspace above territory.
• It is possible to have jurisdiction beyond national 'territory' in certain cases, such as when a state's own
nationals perpetrate a crime (active personality principle).

◦Jurisdiction Principles in International Law

• The 'passive personality' principle is a vital state interest affected when an "international crime" is
committed.
• On ships, jurisdiction falls under the 'Flag state' jurisdiction principle.
• In the Skripal case, the United Kingdom has jurisdiction based on the territoriality land while
ontheir
principle,
Russia has jurisdiction based on the nationality principle.isanational
• UK agents cannot go to Russia to arrest persons or enforce sentences due to the lack of jurisdiction to
enforce.
• In the second example, France has jurisdiction based on the territoriality principle, while Afghanistan
has jurisdiction based on the active personality/nationality principle.
• The passive personality principle only has limited acceptance.
• There is no jurisdiction based on the protective principle or the universality principle in the second
example.
• Universal jurisdiction is demonstrated in the example of a Syrian war criminal facing trial in Dutch
courts.
• Universal jurisdiction is applicable when a serious international crime is committed that goes against
vital state interests.
• Historically, universal jurisdiction has been applied in cases of piracy, WWII war crimes, and specific
investigations in foreign national courts related to atrocities.
• Treaties permit or require the exercise of extraterritorial jurisdiction, as seen in the Convention against
Torture.
• The Convention against Torture outlines various jurisdiction principles, including territorial jurisdiction,
the nationality principle, the passive personality principle, and the principle of universal jurisdiction.

◦Immunity from Jurisdiction

• Immunity is the act of barring States from exercising their national jurisdiction over foreign acts/actors,
even if committed on territory.
• Immunities are necessary to secure smooth, peaceful, international relations and the mutual/reciprocal
protection of sovereign interests between States.
• There are two types of immunity: State immunity and diplomatic immunity.
◦State immunity applies to acts of the State and certain high-ranking State officials such as Heads of
State, Heads of Government, and Minister of Foreign Affairs.
‣ Diplomatic immunity applies to diplomats and includes immunities for embassy premises,
correspondence, etc.
◦Diplomatic immunities are based on customary international law and codified in the
Vienna Convention on Diplomatic Relations.
◦Diplomats are considered "inviolable" and are immune to any form of arrest,
detention, or criminal prosecution.
◦Diplomatic immunities are reciprocal, meaning States owe each other the same rights
and obligations for the protection of each other's diplomatic staff.
◦Diplomatic personnel must obey the laws of the host country, but the sending state
can waive their immunity.
◦After ending their diplomatic post and leaving the host country, diplomats only have
immunity for acts in an official capacity.

◦Diplomatic Immunities and State Responsibility in International Law

• Diplomats must obey the laws of the host country, according to Article 41 of the VCDR.
• Article 9 of the VCDR allows for the expulsion of diplomats through a declaration of 'persona non grata',WE
which can be done without any reason and serves as a serious diplomatic measure.
• Article 22 of the VCDR establishes the inviolability of diplomatic premises, while Articles 24 and 27
ensure the inviolability of the diplomatic bag, archives, and documents.
• The ICJ's Tehran Hostages-case in 1980 involved the storming of the US Embassy in Iran and the
hostage-taking of 52 US diplomats and citizens. Iran was found to have breached its duty of due
diligence to protect the mission and diplomatic personnel.
• The arrest warrant for Putin by the ICC in The Hague is possible because Russia has not agreed to the
ICC's jurisdiction, while Ukraine has.
• Immunities in international law can be categorized into state immunity and diplomatic immunity.
• "High Ranking Officials" enjoy personal immunities derived from state immunity, as seen in the ICJ's
Arrest Warrant-case. Heads of State, Heads of Government, and Ministers of Foreign Affairs are
guaranteed broad personal immunities, while Ministers of Defense have slightly less certain immunities.
• The ICJ's Arrest Warrant-case provides four options for prosecuting high-ranking officials despite their
immunities:
‣ National courts
‣ Post-office acts in a private capacity
‣ The waiver of immunity by the home country
‣ International criminal courts and tribunals.
• The Law of State Responsibility, codified in the UN International Law Commission's Draft Articles on
State Responsibility for Internationally Wrongful Acts (ASRIWA), states that every internationally
wrongful act by a state entails its international responsibility.
• Article 2 of ASRIWA establishes the two elements of an internationally wrongful act:
‣ It must be attributable to the state
‣ Should breach an international obligation.
 ◦Attribution of Wrongful Acts or Omissions to 'the State' in International Law
• Article 4 of ARSIWA considers the conduct of any state organ as an act of the state, regardless of its
position or character.
• Article 5 of ARSIWA attributes acts of persons or entities exercising elements of governmental authority
to the state, even if they are not state organs.
• Article 8 of ARSIWA states that the state can be held responsible for the conduct of non- state actors if it
has effective control over them.
• Article 11 of ARSIWA holds the state responsible for acts of non-state actors if the state acknowledges
and adopts the conduct as its own.

• Reparations for wrongful acts are addressed in Articles 31, 34, 35, 36, and 37 of ARSIWA.
• The International Court of Justice (ICJ) is the supreme judicial body for international law and has the
authority to make decisions between states and provide advisory opinions.
• Notable cases, such as the ICJ Genocide-case and Nicaragua-case, have provided interpretations and
tests for attribution of wrongful acts to the state.
• Attribution of the Skripal Attack in the UK to Russia would depend on the specific ARSIWA provision
applicable.
• Reparations aim to wipe out the consequences of illegal acts and restore the situation that would have
existed without the act.

◦How to bring a case before the International Court of Justice and International Law
on the Use of Force
• The International Court of Justice can hear cases through a special agreement, compromissory clause,
optional clause declaration, or 'forum prorogatum' (not in ICJ statute).
• The United Kingdom accepts the jurisdiction of the ICJ over disputes arising after January 1, 1987,
except for disputes with member countries of the Commonwealth and disputes related to nuclear
disarmament and/or nuclear weapons.
• International law prohibits the unilateral use of force in international relations, as stated in Article 2(4)
of the UN Charter.
• The right to self-defense against armed attacks is recognized in Article 51 of the UN Charter.
• The UN Security Council has the authority to maintain international peace and security through
collective security measures.

◦Powers of the Security Council in Relation to International Peace and Security

• The UN Charter grants the Security Council the authority to take whatever action it deems necessary to
maintain or restore international peace and security.
• This includes the power to authorize both forcible and non-forcible measures. The specific references in
the UN Charter are Articles 39, 41, and 42.
• Some exceptions to the Security Council's power include situations where a state consents to the use of
force on its territory, such as assisting against terrorists or armed uprisings.
• The acceptability of humanitarian intervention is still questionable and not widely accepted in customary
international law (CIL).
• The doctrine of "Responsibility to Protect" only allows action to be taken through the UNSC.