INTERNATIONAL LAW

International law sets out the rules that apply to the

relationships between states on many issues that states
have agreed are of international importance

❑ Human Rights
❑ International peace and security
❑ International trade
❑ International Crimes (Genocide, Crimes Against Humanity, War
Crimes)
❑ The Law of War (also known as International Humanitarian Law)
❑ Diplomatic relations
❑ Extradition (the act of making someone return for trial to another country
or state where they have been accused of doing something illegal)
❑ Investment treaties
❑ Economic development
❑ Climate change
❑ International dispute settlement
❑ International monetary affairs Double Taxation Treaties
 Who are the subjects of International Law?
❑ State is considered to be the primary and original subject of
international law.

❑ Individuals – Common people of any state are also believed

to be the subject of international law.

❑ International Organizations – It is an association of states,

established by a treaty between two or more states.
International Organizations too have a legal personality and
are considered to be the subject of international law. For
example, the United Nations, OSCE, Amnesty International,
UNCITRAL etc.

❑ Multinational Companies – They own and operate their

corporate entities in at least one other country aside from the
place where it was incorporated, therefore it is established in
more than one nation.
 What is a State?
❑States are the main actors in the international
legal system
❑A state, in international law, requires the
following:
• A permanent population
• A defined territory
• The Government
• Capacity to enter into relations with other states : the ability
of a State to make and enforce laws
 SOURCES OF INTERNATIONAL LAW
❑ include everything that an international tribunal might rely on
to decide international disputes.

❑ International disputes include arguments between nations,

arguments between individuals or companies from different
nations, and disputes between individuals or companies and a
foreign nation-state.

❑ Article 38(1) of the Statute of the International Court of Justice

(ICJ) lists four sources of international law: treaties and
conventions, custom, general principles of law, and judicial
decisions and teachings.
 TREATIES
❑ Treaties and conventions are written agreements that states
willingly sign and ratify, and therefore are obliged to follow.
Such agreements, which are also called statutes or protocols,
govern the mutual relations between states. A particular
treaty, however, is only binding on those states that have
signed and ratified it.
❑ The Vienna Convention of the Law of Treaties of 1969 sets out
the fundamental legal rules relating to treaties. The Vienna
Convention defines a treaty, identifies who has the capacity to
conclude a treaty, and outlines treaty interpretation, dispute
settlement mechanisms, and reservations.
❑ The basis of treaty law is ‘pacta sunt servanda’, which means
that agreements must be honoured and adhered to.
 Reservations, declarations and
derogations
• to increase the number of signatories and ratifications
of a treaty, international law allows states to limit the
full application of a treaty, or clarify their specific
understanding of the legal content. This is done
through reservations, declarations and derogations.

• Reservations are defined by the Vienna Convention as:

A unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that
State. (Article 2 (1)(d))
 Reservations
• (1) That with reference to article IX of the
Convention*, before any dispute to which the United
States is a party may be submitted to the jurisdiction
of the International Court of Justice under this
article, the specific consent of the United States is
required in each case.
* The Convention on the Prevention and Punishment of the
Crime of Genocide (CPPCG), or the Genocide Convention
 Declarations
❑ Declarations, unlike reservations, do not affect legal
obligations, but are often made when a state expresses its
consent to be bound by a specific treaty. The state uses the
declaration to explain or clarify its understanding of particular
aspects of the treaty text.

❑ Ex. Declarations recognising ICJ jurisdiction

“The states parties to the Statute of International Court of Justice (ICJ) may
at any time declare (under Art. 36 para. 2 of the Statute) that they recognize
the compulsory jurisdiction of the ICJ in relation to any other State
accepting the same obligation. The declarations recognizing as compulsory
the jurisdiction of the Court take the form of a binding unilateral act of the
state concerned and are deposited with the Secretary-General of the United
Nations.”
 Derogations
❑ Some legal instruments, especially human rights
treaties, provide for a derogations system, which
allows a state to temporally suspend or limit its legal
obligations in exceptional circumstances, for instance
during an armed conflict or national emergency.

❑ For example, the freedom of assembly may be limited

during times of armed conflict. However, some rights
can never be derogated from under any circumstances,
notably the prohibition on torture, and inhumane and
degrading treatment.
 Customary international law
❑ Unwritten rules that form part of the general international
concept of justice
✓ State practice (usus): Customary law is confirmed through the
behaviour of states (objective criteria), manifested through their
official statements and actions.
✓ Legal nature of practice (opinio juris) is the expressed opinion of
states, individually or collectively, that their actions have a legal
and not a mere political basis.
✓ customary international law is based on consistent actions by the
majority of the international community.
✓ Examples are (1) the prohibition on the arbitrary deprivation of
life, (2) the prohibition on torture, and (3) the rule that civilians
and civilian objects cannot be the subject of direct attacks during
armed conflict.
 Types of International law
❑Public International law

❑Private International law

❑Supranational Law
Public International law
❑The rules governing the legal relationship
between states.

❑A body of law consisting of principles and

rules which are recognised by States as legally
binding and regulating events and issues
which are of international concern.
 State responsibility

State responsibility is a fundamental principle of

international law, arising out of the nature of the
international legal system and the doctrines of state
sovereignty and equality of states.
It provides that whenever one state commits an
internationally unlawful act against another state,
international responsibility is established between the
two.
A breach of an international obligation gives rise
to a requirement for reparation.
 Rainbow Warrior

https://www.youtube.com/watch?v=bVmS7916VUA-

❑ Arbitration between France and New Zealand in 1990. The

arbitration followed the incident in 1985 in which French
agents destroyed the vessel Rainbow Warrior in harbour
in New Zealand.

❑ The UN Secretary-General was asked to mediate and his

ruling in 1986 provided inter alia for French payment to
New Zealand and for the transference of two French
agents to a French based in the Pacific, where they were
to stay for three years and not to leave without the mutual
consent of both states.
 THE USE OF FORCE
❑ One of the most important principles of international law is the
prohibition against the use of force. This rule is codified in Article 2(4) of
the United Nations Charter. Article 2(4) provides that a UN member state
cannot threaten or use force against the territorial integrity or political
independence of another state, or in any way that diverges from the
purposes of the UN.

❑ The Use of Force in Self-Defense

Article 51 of the UN Charter acknowledges self-defense as an
exception to the prohibition against the use of force. This provision explicitly
allows a state to use force in response to an armed attack by another state.
UN members must report actions taken in self-defense to the UN Security
Council. Article 51 has been interpreted to incorporate the inherent rules of
self-defense under customary international law, which provide that self-
defense must be necessary and proportionate to the aggression.
 Collective Force Authorized by the UN
Security Council
❑ Articles 24 and 25 of the UN Charter permit the UN Security
Council to use collective force against a threat to international
peace and security. For example, the Security Council triggered
this power in the early stages of the Korean War
https://www.youtube.com/watch?v=NvvCjMxTSbw

❑ and during the Iraq invasion of Kuwait in 1990.

https://www.youtube.com/watch?v=xl_lctDXHuQ

❑ The Security Council rarely invokes this power, though, and

prefers to exert its authority through economic sanctions or
other non-military measures. Each of the five permanent
members of the Security Council holds a veto power, and they
usually do not share the same perspective on any given
international conflict.
 STATE IMMUNITY
❑ State Immunity is a concept in international law that aims to
protect the sovereignty of a state by placing it outside the
jurisdiction of other states. This immunity protects the state
from prosecution in foreign courts as well as against
enforcement measures on its assets and property.

❑ State immunity comprises:

❑ immunity from jurisdiction, which allows a state to avoid prosecution in a
foreign court;
❑ immunity from execution, which allows a state to prevent enforcement
measures against its assets and property.
 Where does the UN fit in?
❑The United Nations is at the centre of
international law and governance
❑In 1945, approaching the end of WWII, 50 States
gathered at a conference in San Francisco to draw
up the United Nations Charter
❑The UN came into being on 24 October 1945 and
the first meeting of the General Assembly was
held on 10 January 1946 in London.
❑ More then 200 members, making it an almost
universal organisation.
 Purposes of United Nations
Art 1 1. To maintain peace and security, including

❑ Take effective collective security measures

❑ To bring about by peaceful settlement of international disputes
2. To develop friendly relations among nations – based upon equal rights and
self determination for all peoples
3. To achieve international cooperation in solving international problems of
an economic, social, cultural, or humanitarian character, and promote respect
for human rights and fundamental freedoms
4. To be a centre for harmonizing actions on these issues
Principles of United Nations: Art 2
Principles of United Nations:
Art 2 1. The sovereign equality of all members
❑ 2. Duty of members to support UN measures in good faith
❑ 3. Duty of members to settle their international disputes by peaceful
means
❑ 4. Members must refrain from the threat or use of force against any state
5. Members must provide assistance to the UN
❑ 6. Members shall encourage non-members to act in accordance with
these principles in order to maintain international peace and security
❑ 7. The UN is not authorised to intervene in what are essentially domestic
matters for any state.
 Structure of the UN

❑UN General Assembly - Deliberation and

recommendation
❑Security Council - maintain international peace and
security; resolutions and sanctions
❑International court of justice - judicial determination
of international disputes
 United Nations General Assembly
❑ The main policy making and deliberative organ of the UN
❑ Power to make recommendations to members on matters
within its competence
❑ Each member has one vote
❑ On “important decisions” (eg peace and security, new
members, budgets) need two thirds majority
❑ No power to make binding decisions regarding disputes
between members
❑ No power to take enforcement action
❑ Approves the budget and fixes budgetary contributions based
on countries’ GNP
 United Nations
Security Council
❑ Has primary responsibility for maintaining international peace
and security
❑ Five permanent and 10 non-permanent members (elected
every two years)
❑ All members are bound by its decisions/resolutions •
❑ The decisions of this body are an important source of
International Law
 United Nations
Security Council – decision making
❑ Will determine if a situation poses a threat to international
peace and security and if so call upon parties to resolve the
dispute.
❑ May authorise sanctions and the collective use of force
❑ On procedural matters require nine votes
❑ On all other matters need nine votes including the affirmative
vote of P5
❑ The ‘veto’ power
 United Nations International
Court of Justice
❑ The principal judicial body of the UN
❑ The Statute of the ICJ (with all of its rules) is annexed to the
UN Charter
❑ All members of the UN are automatically parties to the ICJ
Statute
❑ The ICJ consists of 15 Judges elected to 9 year terms of office.
❑ Nominations are put before the UNGA and SC simultaneously
and require an absolute majority in both to be successful
❑ Once elected, judges do not represent their own government.
They must exercise their powers impartially
 United Nations International
Court of Justice
❑ How does a case come before the ICJ?
❑ ICJ has no compulsory jurisdiction
❑ States submit a dispute to the ICJ in one of three ways:
❑ pursuant to treaty that includes a provision giving the ICJ
jurisdiction
❑ pursuant to “the optional clause” – a provision in the Statute
of the ICJ that allows each state to pre-emptively agree that
other states can take it to the ICJ if they are in dispute
❑ by special agreement
 United Nations Charter
❑ The Charter is the founding document of the United Nations.
It was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations Conference on International
Organization, and came into force on 24 October 1945.

❑ The United Nations can take action on a wide variety of issues

due to its unique international character and the powers
vested in its Charter, which is considered an international
treaty. As such, the UN Charter is an instrument of
international law, and UN Member States are bound by it. The
UN Charter codifies the major principles of international
relations, from sovereign equality of States to the prohibition
of the use of force in international relations.
❑ https://www.un.org/en/about-us/un-charter/full-text
 Resolution of International Disputes
❑ Recall Article 2 of the UN Charter

❑ The Organization and its Members, in pursuit of the Purposes

stated in Article 1, shall act in accordance with the following
Principles…

❑ All Members shall settle their international disputes by peaceful

means in such a manner that international peace and security, and
justice, are not endangered.

❑ All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
 How should Disputes be Resolved?
❑UN Charter Article 33 1

❑The parties to any dispute, the continuance of which

is likely to endanger the maintenance of
international peace and security, shall, first of all,
seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful
means of their own choice.
 Practice cases
❑Reid v. Covert

❑The Paquete Habana

❑Medellin v. Texas
 International Private Law
❑ Conflict of laws (also called private international law)
is the set of rules or laws a jurisdiction applies to a
case, transaction, or other occurrence that has
connections to more than one jurisdiction.
❑ This body of law deals with three broad topics:
❑ jurisdiction, rules regarding when it is appropriate for a
court to hear such a case;
❑ foreign judgments, dealing with the rules by which a
court in one jurisdiction mandates compliance with a
ruling of a court in another jurisdiction;
❑ and choice of law, which addresses the question of
which substantive laws will be applied in such a case
 The Hague conference
• Hague Conference on Private International Law The Hague
Conference on Private International Law
(http://www.hcch.net/index_en.php), which traces its origins to an
1893 conference convened by the Government of the Netherlands,
is "the world organization for cross-border co-operation and
commercial matters."

• It develops conventions (rather than principles, guidelines and

model laws) in various areas of private law, addressing topics
ranging from traditional issues such as choice-of-law rules and
jurisdictional rules to contemporary issues such as intercountry
adoption and child abduction.

• The Hague Conference's structure and purpose are stated in the

Statute of the Hague Conference on Private International Law
(entered into force 15 July 1955)
• Petrobart arbitration case
THANK YOU!