Title: I SPECIAL NATURE OF INTERNATIONAL LAW
1I SPECIAL NATURE OF INTERNATIONAL LAW
- Is it law ?
- Implementation ?
- What about enforcement ?
- Who is the legislator ?
- Differs obviously from national legal systems by
nature
2DEFINITION
- A system of rules and principles, which is
applied in relations between sovereign states and
international organisations like the UN
3The rules created by states in the relations
between them
- It is in the interest of states to establish and
keep up a legally organized international system -
- The rules of international law cover nearly all
areas of international activity law of the sea,
space law, telecommunications, postal services,
carrying of goods and passangers, money transfer,
trade, warfare, human rights, nationality,
extradition, expulsion and extradition,
security of states, use of force etc. - In fact very little happens in international
affairs, which would not be regulated by
international law
4PUBLIC AND PRIVATE
- The interdependency of states presupposes a well
functioning international system - Public International law between states
- Private International law between private
entities - As a result of political choice in favour of
private the public and private are rapidly
intertwining both in national and international
legal systems
5INTERNATIONAL LAW WHAT ELSE ?
- International law only one regulator /gentle
civilizer - Diplomacy
- Politics
- Economy
- Citizens
- International organisations
- All these form together the basis for states
decision-making concerning international affairs
6Is it valid if it is violated ?
- Like everyone acting within a legal framework,
states may decide to violate the rules of
international law this does not bring an end to
a norm violated - However, if state practise emerges, the norm may
change states seldomly claim their wrondoings
constituting a state practise supported by
sufficient opinio juris
7INTERNATIONAL RULES AS A LEGAL SYSTEM
- International community (states, IOs) recognise
the existence of the system of international law
and its binding nature - States do not admit that they would have violated
IL(international law), but explain to have acted
in accordance - States believe that such a system exists
- Example US invasion of Grenada most states
condemned not only immoral but illegal (also
Iraqi invasion to Kuwait)
8INTERNATIONAL RULES AS A LEGAL SYSTEM
- Vacuums in the system or its inefficiency do not
as such make it invalid - Its sui generis nature does not nullify its
legal nature
9LEGALLY BINDING INTERNATIONAL LAW
- Foreign ministries, national and international
courts and IOs apply it on a daily basis - legal departments giving legal advice on the
application of international law - use of legal concepts and language
- states consider to be bound to act on a certain
manner and from time to time consider some other
state not to act in confirmity - International Court of Justice submits legal
judgments
10LEGALLY BINDING INTERNATIONAL LAW
- b) States do not claim to be above international
law nor that they would be bound by it - example Iraqi invasion to Kuwait, Soviet
occupation of Estonia - States do follow INTL because they consider to be
obliged legally, otherwise there would not be any
need to find kegal reasoning for their acts
11LEGALLY BINDING INTERNATIONAL LAW
- c) INTL rules are followed systematically in
state practise - violations tend to crowd the international
publicity rather than the routine everyday
practise, illusion of inefficiency although it is
a question of deviating from the normal an
exception - national legal systems have similar
inefficiencies canot totally prevent crimes or
violations of law - most of the rules of international are followed
for the most of the time
12LEGALLY BINDING INTERNATIONAL LAW
- -d) In all legal systems there is established a
system for solution of disputes concerning points
of law and facts - also in INTL
- in this regard INTL is organised more loosely
- legal bodies for the purposes international
disputes ICJ, international arbitration, war
crimes tribunals (Yugoslavia, Rwanda, ICC), WTO - regional ECHR, ECJ, ACHR, AfricanCHR
13ENFORCEMENT OF INTL
- IS IT law if not compulsory system of enforcement
? - example Kuwait , rather peace enforcement than
formal enforcement of INTL law with compulsory
measures - the validity of INTL is related rather to how it
has been estalished and to how it functions than
to compulsion - Compulsion may be the reason to follow law but
not the reason for its validity as a law - The point it is essential that the system within
which legal norms are established is commonly
accepted
14ENFORCEMENT OF INTL
- UN Security Council
- may take enforcement measures against a state,
if it threatens peace or have committed an act of
aggression or breach of the peace (UN Charter,
art. 39 and ch. VII) - precondition a resolution for that purpose is
made by the UN security Council - Five permanent members (USA, Russia, China,
France, UK) veto right, earlier hindered
resolutions on the use of sanctions, now new
world order
15ENFORCEMENT OF INTL
- May be
- military action Korea 1950, Iraq 1990/91, Kosovo
? - economic sanction South-Africa 1977,
Serbia-Montenegro 1992 - diplomatic, political social measure
Delimitation of air-routes for Libyan airplanes
after Lockerbie bomb 1992/93
16ENFORCEMENT OF INTL
- UN SC resolutions have been applied to various
situations - Iraqi invasio to Kuwait
- Dissolution wars of Jugoslavia
- Civil war in Somalia
- Libyan involvement to air-flight terrorism
- ONLY IF the issue is about breaching peace,
threat to peace or aggression - UN SC is not dealing with general violations of
INTL only the most seariest situations
17ENFORCEMENT OF INTL
- b) Violation of legal rights
- - example a state A violates a trade agreement
with state B - - B may have a right to end the agreement
- cutting off diplomatic relations
- delimiting economic assistance
- end other trade agreements
- proportionality
18ENFORCEMENT OF INTL
- Examples UK cut off diplomatic relations to
Argentina after it occupied Falkland/Malvinas
Islands, USA freezed the assets of Iran placed in
US Banks during 1979/80 hostage crisis - even international community or a larger group of
states may adhere to similar measures - loosing economic rights may have even a deeper
impact than the use of force, since in a
globalised world economy states are extremely
dependent on each other
19ENFORCEMENT OF INTL
- c) Legal enforcement
- International Court of Justice (ICJ) a court of
law of the UN - A state cannot be compelled to become a party in
a case before the ICJ - part of the States have recognised the compulsory
jurisdiction of the ICJ - others decide case by case whether they agree to
become a party to the proceedings - if they agree to ICJ jurisdiction its judgment
is legally binding - ICJ does not have any enforcement measures of its
own
20ENFORCEMENT OF INTL
- ICJ could (in theory) use enforcement through UN
SC, but this has never taken place with success - if UN SC would be used theenforcement is limited
to matters within the powers of the SC - possible only in a case that is already under
consideration before the ICJ - Lockerbie case 1992 the supremacy of the UN SC
21ENFORCEMENT OF INTL
- the use of international special courts have
increased (Iran-US claims tribunal, Bosnia,
Rwanda war crimes tribunals) - also domestic courts apply international law in
cases involving international dimension
22II SUBJECTS OF INTL
- Not self-evident who may be the subject of
international rights and duties - Subjecthood procedural rights and obligations
ability to make international claims before int.
judicial tribunals and the obligation to answer
to such claims - ability to make treaties, participate in
multinational events, accountability, immunity,
be part of INTL creation, etc. - The recognition or acceptance of states is
important bilateral and multilateral effects
23States
- most important subjects
- accepted statehood brings the capacity to act
internationally as a state - territory, sovereignty, permanent population,
government, independence
24Other territorial entities
- operating as an independent entityTaiwan, still
formally part of China - Palestinian Autonomous Area
- Autonomous components of existing states Ã…land,
Quebec, Northern Ireland
25International Organisations
- General UN
- Regional OAU, OAS, EU
- Organisation within organisation UNESCO
- Economic WTO, OECD
- MaritimeIMO
- Military NATO
- Migration IOM
- Two-party UK-Ireland Decommissioning Body
- Multi-party Mekong River Commission
26Individuals
- originally no subjecthood on international level
- development of body of HR law on international
level - development of personal criminal resposibility on
the international level - Setting up of ICC nationals may be made subject
to the jurisdiction by a non-state entity - Universal jurisdiction over international crimes
Pinochet -case
27Other international subjects
- miscellaneous groups to some extent
- Sovereign Order of Malta
- - international contracts between states and
private entities tend to give some features of
international subjecthood to private entities
28III SOURCES OF INTERNATIONAL LAW
- all legal systems inevitably must have some
criterias with which one is able to recognise
legal norms, the body of law - how are the legally binding norms established
- what are the legally binding norms
- National level legislator, case law, Supreme
Courts, Common law customary law
29Art. 38 of the ICJ
- Classical list of souces of INTL
- International Conventions
- International Custom
- General principles of law
- Judicial decisions, writings of scholars (most
highly qualified), subsidiary - - not extensive list, no binding hierarchy of
souces but a descrition on what kinf of materials
the ICJ utilize in applying international law
30SOURCES
- Formal the process through which legal rules
become binding, how binding obligations are born - Material the substance of legal obligations
they tell what is the content of legally binding
obligations - - International conventions are the only means
through which states can intentionally create
INTL
31SOURCES Treaties
- a) Treaties are based on the free will of the
states - States can be obliged by a Treaty only when it
has given a specific act of acceptance to take
the obligations inluded in the Treaty
signature/ratification - A Treaty is binding only with regard to the
parties of the Treaty - Exception Border Treaties binding erga omnes
(ie. towards rest of the international community)
32SOURCES Treaties
- b) When a state has given it acceptance
- Treaty is binding on the parties
- Treaty does not bind other states, unless it has
become either entirely or partly widely accepted
through customary INTL
33SOURCES Treaties
- c) If the Treaty is ment to codify already
existing customary INTL (eg. Vienna Convention on
Diplomatic Relations, 1961, almost all states
parties to it) - - Treaty has general applicability, since based
on customary INTL
34SOURCES Treaties
- d) Multilateral Treaties may codify or even
further develop INTL - often the intention of the states parties is that
the Treaty would in future be binding on all
states - eg. Convention on the Law of the Sea (adopted
1982) catalytic effect to INTL
35SOURCES Treaties
- - parties are always obliged
- states not parties obliged only with regard to
those Treaty provisions which are contained in
the customary INTL - if state practise later on develops to the same
direction as the treaty indicates, the Treaty may
emerge into customary INTL then also States not
parties become obliged by the entire Treaty
general applicability - example Convetion on the Law of the Sea
crystallized the principle on economic zone
today this provision is binding as a rule of
customary INTL (confirmed by the ICJ in Tunisia
vs. Libya case 1982)
36SOURCES Treaties
- In order for a Treaty norm to become generally
obliging, it has to have - general applicability
- the intention of it must be to serve as a basis
for further state practise in future - states must consider it as legally binding
(opinio juris)
37SOURCES Custom
- one of the cornerstones of INTL
- legally binding norms which emerge from the acts
of states (state practise) and from the customs
of states - establishes general principles of law
38SOURCES Custom elements
- State practise
- the actual activites/passivity of states
- statements in practical situations
- general statements concerning legal principles
eg. when accepting UN GA resolutions
39SOURCES Custom elements
- b) Consistency/uniformity of State practise
- - must be continuing and uniform (Lotus case)
- requirement of uniformity is not absolute varies
according to substance - The more profound norm of INTL is in question,
the stricter the requirement of uniformity is - positive obligation more strict U requirement
- negative obligation less strict U requirement
40SOURCES Custom elements
- c) Generality of State practise
- common to a considerable number of states
- not necessarily common to all states
41SOURCES Custom elements
- d) The duration of State practise
- differ a line of activities of states indicating
state practise - even a short duration is not an obstacle for the
emergence of customary norm (the law of outer
space)
42SOURCES Custom elements
- e) Opinio juris
- states must recognise the general, uniform and
continuing state practise as legally binding - to the state practise must be attached with opino
juris indicating that the case is about legally
binding custom (Lotus case, North Sea Continental
Shelf case) - Proof ?
43SOURCES Custom elements opinio juris
- How to verify its existence ?
- certain way of behaviour by states is not
sufficient as such needs a separate
verification Nicaraqua case para. 186 31 - somewhat theoretical construction
44Jus cogens (peremptory norm)
- customary rules of fundamental nature no
derogation accepted - always take priority over treaty obligations
(Vienna Convention, Art.64) - no general agreement on what rules have attained
this level - prohibition of the use of force
- equal sovereignty of states
- prohibition of crimes against humanity
- the right to self-determination
- prohibition of genocide and slavery
- freedom of the high seas
- pacta sunt servanda (treaties are binding in law)
45Sources
- Recent developments
- - treaty law have become the main source of INTL
- - It is easier to deduce accurate legal rules
from treaty based INTL - - The number of international treaties have
increased rapidly (need for them have increased)
the areas not regulated by international treaties
narrow
46Sources
- If the same matter is regulated both by customary
INTL and treaty law, and the state is party to
the Treaty, the state is bound by both. If
contradiction arises in such a situation - If the treaty has been enacted later than the
customary norm has been established, the treaty
prevails over the customary norm, unless it has
the nature of jus cogens - if customary norm has been established later than
the treaty, it prevails over treaty only
exceptionally - Art. 53 of the Vienna Convention jus cogens
norm prevails always over treaty
47Sources
- Acts of states do not have constituting effect
establishing new customary rule even if repeated
often, if they are in violation of jus cogens
norm - change is possible only if a new norm of jus
cogens arises, which modifies the content of old
jus cogens norm
48IV RELATION BETWEEN INTL AND MUNICIPAL LAW
- INTL regulates relations between sovereign
states (but remember other subjects of INTL) - Municipal law regulates relations between the
subjects of a sovereign state - Overlapping systems INTL establishes rights and
duties obliging also individuals (HRs, war
crimes)
49RELATION BETWEEN INTL AND MUNICIPAL LAW
- Lack of enforcement system in INTL enforced
often through national courts national law has
impact on effectiveness of INTL and lawfulness if
international action - cases Brazilian Loans, PCIJ 1929, p. 124.
107 - Barcelona traction, ICJ 1970, para50. 108
- INTL LAW of the Sea has an impact on the
evaluation of the width of the jurisdiction of
the state in criminal matters - One can deduce from INTL rights to an individual,
to which one can resort before a national court
50RELATION BETWEEN INTL AND MUNICIPAL LAW Monism
- Both INTL and national law are included to the
domestic legal order - INTL have supremacy over national law in case of
a contradiction INTL HR LAW - Separate incorporation not necessary for domestic
applicability - Monistic systems eg. Netherlands, Estonia
51RELATION BETWEEN INTL AND MUNICIPAL LAW Dualism
- INTL and National separate if contradiction,
national law has supremacy - INTL responsibility, even if acting in conformity
with national law - Rights and duties do not automatically transfer
into other system separate incorporation into
domestic system needed
52V INTERNATIONAL TREATIES
- Vienna Convention on the law of treaties 1969
codification, has the nature of customary INTL - What is a Treaty ? (VC art. 2)
- international agreement
- between states
- written form
- governed by international law
- Case Qatar v. Bahrain, ICJ 1994 (Jurisdiction-
First phase), para 25.) 57
53INTERNATIONAL TREATIES Will confirmation
- Full powers either by providing proper
authetification or state practise/circumstances
establish intention that the person acting had
full powers - Lack of powers no legal effect, but can be
confirmed afterwards by a state - Consent to be bound signature, ratification,
accession
54INTERNATIONAL TREATIES Entry into force
- After signing but before entry into force
Obligation not to defeat the object and purpose
of the Treaty (VC Art. 18) may indicate state
practise even before entering into force - Provided by the treaty or otherwise agreed
between states - If no agreement or treaty provision as soon as
all negotiating states have ratified (consent to
be bound) example US letter of non-intention
66 - No retroactivity main rule, if not otherwise
intended
55INTERNATIONAL TREATIES Third states
- If no consent no obligation/right
- If a treaty provision is/ becomes a rule of
customary INTL binding on third states (VC on
state succession, 1978,art. 38) - State succession Boundaries remain, otherwise
white board for a new state -
71,72 - VCS 1978 art.12 customary INTL rule 70
56INTERNATIONAL TREATIES Reservations
- Express statement state does not accept some
provisions of the treaty - ICJ Advisory Opinion 1951, Reservations to the
Genocide Convention reservation possible if
compatible with the object and purpose of the
Convention 74 - ECHR, Belilos v. Switzerland 1988 reservation
that was too wide in scope was not valid 76 - Legal effect modifies treaty if not objected
(VC art. 21) 78 79 81 82
57INTERNATIONAL TREATIES Interpretation
- In good faith
- In ordinary meaning of the terms of the treaty
- In context
- In the light of its purpose and objects
- What is context VC art 31 84
85 - Contracting out from jus cogens ? 91
- Obligations erga omnes towards intl. community
as a whole (ICJ Barcelona traction case )
93
58INTERNATIONAL TREATIES invalidity, termination
- Notification to other states parties
- Invalid treaty has no legal force
- Invalidity and termination must be in accordance
of the Treaty, if state has been boubd by it
59VI INTERNATIONAL ORGANISATIONS
- Diplomacy was not enough international
conferences to deal with multilateral problems
ending wars (Peace of Westphalia 1648, Congress
of Wienna 1815)- regularity of the conferences-
periodisation Balkans (Paris Conference 1856,
Berlin gathering), Africa (Berlin Conferences
1884-5) - Int. NGOs Red Cross 1863, ILA 1873
60INTERNATIONAL ORGANISATIONS
- Impact
- state practise within organisations INTL
- treaty interpretation
61INTERNATIONAL ORGANISATIONS
- Liability of member states
- debts and delicts if legal personality , then
organisation - if no separate legal personality, then member
states - complex issue
- Privileges and immunities
62INTERNATIONAL ORGANISATIONS Universal
- League of Nations 1919 Promotion of
international co-operation, peaceful resolution
of disputes, sovereignty and independence of the
member states, sanctions - weakness each member state concluded whether a
violation had taken place and whether to resort
sanctions - Failed to to take effective measures formally
dissolved 1946
63INTERNATIONAL ORGANISATIONS Universal
- The United nations San Fransisco Conference
1945, so far success - GATT 1947-8 Havana Conference, different GATT
rounds, Uruguay round 1986 led to the
establishment of the WTO in 1994, and GATT
continued until the end of 1995
64INTERNATIONAL ORGANISATIONS Regional
- WEU 1948- now integral part of EU as defence
component - NATO 1949
- Warsaw Pact
- Arab League 1944
- ASEAN 1967
- OAS 1948 also collective security system
- OAU 1963
- EEC-EU, 1951-1957-1992
65INTERNATIONAL ORGANISATIONS Regional Europe
- CoE 1949
- OSCE 1975, from conference to organisation 1995
- CIS- some of the former Soviet republics
66INTERNATIONAL ORGANISATIONS UN
- Security Council
- maintaining int. peace and security
- UN Charter ch. VII SC powers to act on behalf of
all states - UN Charter Art. 39 IF SC concludes that there is
a threat to peace, breach of peace or an act of
aggression, it may resort to measures under Art.
41 and 42 - interim measures under Art.40 until decision
under Art. 39 has been made
67INTERNATIONAL ORGANISATIONS UN
- What kind of activities may come under Art. 39 ?
- military action or the threat of it
- unstable internal situation in a state
South-Africa, Rhodesia, Liberia, Haiti, Rwanda - state terrorism/support to terrorism (Libya
1992/93) - No general set of rules binding SC SC decides
- SC has primary responsibility to maintain
international peace and security
68INTERNATIONAL ORGANISATIONS UN
- UN Charter ch VII SC action possibilities
- recommendations
- provisional measures
- sanctions (art. 41) Binding on UN member states
- no armed force trade boycott (Haiti, not in
force anymore), arms trade embargo (Liberia,
Rwanda), flight restrictions(Libya), - cutting off economic and diplomatic relations,
other restricted measures
69INTERNATIONAL ORGANISATIONS UN
- Peace enforcement, art. 42
- SC may take a military action, which is necessary
to maintain or restore international peace and
security, preceding violation of INTL by the
target of the operation is not a necessary
requirement - Example SC authorised NATO to take all necessary
action to implement Dayton agreement (Bosnia,
Kosovo was not inluded to the agreement)
70INTERNATIONAL ORGANISATIONS UN
- SC has power to authorise states to act on its
behalf - 1950 recommended all member states to provide
military assistance to South-Korea under the UN
operation after North-Korea had attacked de
facto a US led and conducted operation - 1966 authorised UK to keep up the oil embargo of
Rhodesia - 1990 (over 20 resolutions) authorised the member
states to take all necessary action to restore
the sovereignty of Kuwait (29 states
participated) - 1993 authorised UN forces in former Yugoslavia to
take all necessary action to protect civilian
population 1995 the task was delegated to NATO - 1993 authorised the UN forces in Somalia to take
all necessary action to protect UN forces against
attacks
71INTERNATIONAL ORGANISATIONS UN
- UN General Assembly
- Represents all states
- No powers to make legally binding decisions
- 1950 Uniting for peace resolution If SC was due
to a veto unable to take care of its primary
responsibility to maintain peace and security, UN
GA will take the issue immediately under its
consideration to give necessary recommendations
to member states for collective action however,
use of force remains as a sole power of the SC
(presently does not have importance, used to get
issues under discussion before the GA - 1956 UNEF peace keeping operation in Egypt after
Suez crisis it was not a sanction, since Egypt
gave its permission for the operation, therefore
SC authorisation was not necessary
72VII Peaceful settlement of disputes
- UN Charter 2(3) Art. obligation not to endanger
peace and security- obligation to resort to
peaceful settlement of disputes, if they endabger
peace and responsibility - no general responsibility for dispute settlement
if done- must be peaceful - usually ICJ does not have compulsory jurisdiction
- provided that HRs and UN SC resolutions are not
violated (Flight restrictions over Iraqi Kurd
areas) states have the right to use force in
their internal disputes
73Peaceful settlement of disputes
- dispute may be international even if the parties
are not states (eg. Bosnian Moslems, Serbs and
Croats) - Measures negotianions, mediation, good offices,
fact-finding, settlement by the UN, regional
organisations, arbitration, ICJ, other int.
courts, Permanent Court of Arbitration etc.
74Peaceful settlement of disputes
- International Court of Justice
- - legal disputes
- 4-5 cases /year, 15 judges elected by the UNGA
and SC 1 judge from every permanent member of
the SC (no possibility to use veto in election)
10 judges are chosen from the candidates proposed
by the member states of the Permanent Court of
Arbitration in practice judge from all
continents - the composition of the ICJ must reflect the main
forms of civilization of the world
75Peaceful settlement of disputes
- ICJ is a UN body
- The statute of the ICJ is a part of the UN
Charter - only states may be parties to a case before the
ICJ - either compulsory or ad hoc jurisdiction
- advisory opinions UN or its special
organisation are not legally binding
76VIII INTERNATIONAL HUMAN RIGHTS
- - Guaranteed in international human rights
treaties - define minimum standards
- margin of appreciation(ECHR)
- international supervision mechanisms only add to
domestic one domestic supervision primary
77International supervision of HRs
- ECHR
- ICCPR
- ICESCR
- UN Convention on the rights of the child
- UN Convention on the rights of women
- UN Convention on the elimination of all forms of
racial discrimination - UN and CoE conventions against torture
- ILO Treaties
78WHO IS ACCOUNTABLE ?
- State and its authorities
- Domestic courts in a key role provisions
guaranteeing fair trial important - International HR bodies not a fourth instance
they do not have powers to abrogate domestic
decisions
79Supervision mechanisms
- Individual complaint
- Collective complaint (EU social charter)
- Reporting
- Hearing of NGOs
- Fact finding missions
80IX USE OF FORCE
- UN Charter 2(4) Art.. use or threat of force is
prohibited against - territorial integrity
- political independence
- any other manner inconsistent with the purposes
of the UN - all states have accepted this
- exception UN Charter Art. 51 allows use of force
for self-defence
81USE OF FORCE
- Restrictive interpretation of Art. 51
- self-defence acceptable (also in an area of the
aggressor state) if it does not lead to a
permamnent occupation or loosing of territory - provided that it does not endanger target states
independent decision-making - and is not inconsistent with the purposes of the
UN
82USE OF FORCE
- also accepted
- rescuing citizens (Entebbe)
- protection of HRs (no-fly zones in Iraq)
83USE OF FORCE
- Customary right to self-defence
- Counter measure against armed aggression
- Eliminating imminent threat of armed aggression
(the bombing of Iraqi nuclear installation in
1982 by Israel) - Counter aggression or threat against nationals,
property or rights guaranteed under INTL - non-armed aggression (economic, propaganda)
necessitating immediate counter-measures
84USE OF FORCE
- Restrictive interpretation of UN Charter Art.51
also customary right to self-defence have been
limited - if so, only against armed aggression
- not clear which one of the interpretations is
correct state ptactise , which is contraversary
85USE OF FORCE Humanitarian intervention ?
- Definition state A may use forcible measures in
the area of state B, even if B resists - Preconditions
- a) Intervention have to be accepted by an
international organisation (UN or regional) - b) only in cases of gross violations of HRs
- Inconsistent state practise (Iraq, Rwanda,
Cambodia 1979 - Problem subjective element of the intervening
state misuse easy KOSOVO ?
86X Humanitarian law
- Norms that seek during armed conflict to
-
- protect persons who are not or are no longer
taking part in the hostilites - restrict the methods and means of warfare
- War crimes also grave breaches during internal
conflict - Geneva 1949 Conventions and additional protocols
1977
87Humanitarian law
- Basic obligations
- distinction between civilian population and
combatants - prohibited to wound surrenderers or those unable
to take part to the fighting anymore - distinction between civilian targets and military
targets - only military objectives can be targeted
88XI State responsibility
- Responsibility for wrongful acts in all legal
systems - State responsibility preconditions for a legal
state responsibility for violating an obligation
under international law, and its conseguences
(duty to compensate) - arises when a state has violated an obligation it
has vis-a-vis another state - eg. violation of a treaty obligation, customary
law, legally binding int. decision, maltreatment
of nationals of another state, valid decision of
an int.organisation (UN SC)
89State responsibility
- Basic precondition illegal act, for which a
state is accountable for - - example UN SC resolution 687 Iraqi oil sold,
and the income is used to pay compensation for
damage caused by illegal occupation of Kuwait by
Iraq
90How to analyse legal cases
- Read quickly the case as a whole
- On the second reading identify the facts that are
relevant for applying the law into the case - Structure your analysis issue by issue
- Lastly read the case once again and compare your
analysis to the facts so you dont miss anything
and that you have understood the facts correctly
91XII THEORIES OF INTERNATIONAL LAW
- idealism realism Kant-Carl Schmitt/Hans
Morgenthau - empirism/positivism explaining social phenomena
by using empirical method - essentialism/normativism revealing the essence
of different social entities, positivism - Marxism revolution
- structuralism revealing structural antagonisms
- post-modernism deconstructing traditional
dominating structures - Critical legal studies (CLS) to explore the
manner in which legal doctrine and legal
education and the practices of legal institutions
work to buttress and support a pervaisive system
of oppressive, inegalitarian relations to develop
radical alternatives.