INTERNATIONAL LAW

Article 38: 1) Court shall decide disputes in accordance with international law 2) Provision shall not prejudice the power of the Court to decide a case ex

aequo et bono, if parties agree theretoFlaws:

Directions to the court rather than sources- Concentrates primarily on activities of states. Non-state actors,

individuals etc. contribute to development of customary practice.- There is no indication of priority of hierarchy of sources

Formal SourcesProcess by which a legal rule comes into existence: law creating

- “Customs”Material SourcesConcerned with substance and content of legal obligations, enabling the subject of international lawEvidentiary sourcesMost important sources, telling a state or legal person what they can or cannot do

International TreatiesMost important source of international law; will have been entered into voluntarily and only after due and serious consideration

i) No state can be bound by a treaty without having given its consent (ratification), exceptions when it is valid ergo omnes (effective against whole world)

ii) Treaties are a source of binding law exclusively for the parties in their relations inter se

iii) When a treaty codifies existing customary law, substance of obligations specified in the treaty may be binding on all states

iv) Parties to the treaty are bound in the normal way by all obligations in the treaty, but non-parties are bound only by those obligations which have attained the status of customary law

Law or obligation Contract treaties = bilateral treaties Law making treaties = multilateral treaties

Treaties are the result of direct negotiations between legal equals and each party is bound by the termsOnly law involved in a treaty is the customary lawTreaties are a material source of law

- They are the only method by which states consciously can create binding law

- Legal effect of treaties is identical whether we regard them as law creating or obligation creating

CustomTreaty has replaced custom as the primary source of international law

Elements: Customary law has evolved from the practice of states (activities of states in international arena may give rise to binding law)

- One of the most important factors in the formation is that state practice must be constant and uniform

- The more fundamental the customary rule, the more consistent any contrary state practice must be to change that rule; therefore contrary state practice should be presumed to be action in breach of the rule

- Generality of practice: Must be common to a sign. Number of states- Not all states need to participate to become law- Some states will be directly affected, and thus their practice is more

important

- Local customary law can supplement or derogate from general custom- There is no precise guideline on the time required for state practice to

mature into customary law

- Opinio juris: More than general uniform and consistent state practice, it must be accompanied by belief that the practice is obligatory (Opinio juris)

- Frequency or habitual character is not enough.- Could be presumed from consistent practice, or because they feel obliged

to do so- = International law might require diff. levels and degrees of proof for diff.

substantive rules of customary lawHow does customary law change?

- There must be sufficient state practice contrary to the existing rule supported by opinio juris

- Continued and sustained criticism of contrary conduct is evidence of non replacement

- 1) If once accepted contrary conduct, can’t complain of the breach- 2) Rules of jus cogens (main principles of international law) cannot even

be contradicted by a treaty

International and National lawMonistic view: (1701-1785) Supremacy of municipal law;

- National law prevailed over international law- Existence of a single set of legal system, denied existence of international

lawDualistic Doctrine: (1899) Existence of two distinct sets of legal orders

- Different in categories of 1) their subject 2) their sources 3) contents of the rules

- International rules are only possible to the extent that they can rely on national rules

Monistic theory: (1899) Unity of various legal systems and primacy of international law

Modern changes

International law no longer constitutes a sphere tightly separate and distinct from that of legal systems

It is directly legitimizing, or issuing commands, and heading towards civitas maxima (human commonwealth), a jus super partes, regulating international dealings from above

Implementing international law in domestic legal systemsCurrent regulation of the international community shows two important developments

1) Nr of treaties, imposing states the duty to enact legislation for implementing the various provisions

2) General rules that have acquired the rank and status of jus cogens, require states adopt the necessary implementing legislation

Apart from those, international law does not contain regulation of implementation (leaves each country complete freedom of fulfilment of obligations)Modalities of Implementation:

1) Automatic standing incorporation - Internal norm provides for automatic incorporation without need for

passing of an ad hoc national statute- After being published, individuals must comply with it- System adjust itself continuously, and modifies national system when

international law is changed2) Legislative ad hoc incorporation - Applicable only if relevant parl. Authorities pass specific implementing

legislation- Act of parliament may set out in detail obligations OR may keep itself to

automatic applicability (as above but on a case-by-case basis)Preference should always be given to leg. Ad hoc whenever they turn out to be non self-executing, and automatic if it is self-executingRankStates tend to accord international rules a status and rank higher than that of national legislation

- if constitution rigid: Legislature is precluded from passing a law contrary to an international rule, unless lax is enacted through special procedure

- International law cannot be set aside by simple parl. Majority

2 different requirements to regulate national incorporation of international law. 1) Nationalist approach - Leg. Ad hoc incorporation- To put international rules on same footing as national leg.2) Internationalist approach - Automatic incorporation- International rules rank higher

Techniques of ImplementationCustomary International LawModality of implementation: Automatic standing incorporation

- As soon as they come into being in the community international customary rules become biding within national legal systems (even though there are examples of non-self-executing rules)

- Rank: In some states international customary law overrides inconsistent ordinary national leg.

- Other states do not lay down a rank higher than ordinary leg., if national law is later in time it will prevail, OR const. provision provides for incorporation of treaties, and are ratified

Treaty LawModality of Implementation: Standing automatic, statutory ad hoc incorporation, automatic ad hoc incorporationUS: Treaties will be supreme law after ratificationUK: Treaties do not bind national auth. unless translated into national leg. It.: Automatic ad hoc incorporation

Non-self-executing treaties: Treaties have to be supplemented by add. National leg. Implementing leg. Proves necessary

International law differs from ordinary leg. In that they have the aim of adjusting national legal order to an international treaty!

- Some intergovernmental organizations are empowered to adopt binding decisions, laying down rules producing outside effects. Decisions need to be implemented at the national level, sometimes become binding simply upon their publication.

Other International Legal SubjectsInsurgencePreferred to treat insurgency as a domestic occurrence and the rebels as common criminalsAttitude of States towards insurgents has:

1) To become an international subject i) rebels should prove they have power over part of a territory ii) civil disturbance should reach a certain degree of intensity (may recognize belligerency)

- Foreign representatives owe all officials of 3rd state a special duty of protection (has turned into international customary law)

- Persons acting for rebellious parties can claim international protection only from states that have granted them recognition

Sui Generis Entities (Unique)1) Have acquired legal status through historical circumstances2) Do not posses any distinct territory3) Limited international personality (i.e. Monaco, Andorra etc)

Holy See: Organization of Catholic Church who constituted the “Vatican State”- Can enter into international agreements called “concordats”- Immunity from foreign jurisdiction

Sovereign order of Malta: - Operates exclusively so that the Order may attain its institutional goals of

health and hospital assistance- Immunity from state jurisdiction as well as to fiscal exemption

Red Cross:- Promotes the drafting of multilateral humanitarian treaties

- Has the right to offer its humanitarian services to fulfil the role normally performed by protecting powers

Reason of Emergence of International Subjects- Intergovernmental organizations developed as states refrained from

looking after areas of mutual interest individually- The ideological factor that helped the strengthening of those

organizations was protection against a third world war- Human rights doctrine: Drafting nr of international treaties protecting

human rights- Doctrine of self-determination: Behind emergence of colonial people

International Organizations- Create new subject of law endowed with certain autonomy, to which

parties entrust the task of realizing common goals- They have limited competence and field of action

Test for determining whether organization is of international subject?1) It must be proved that founders intended to put into being an

autonomous body, capable of occupying a position in certain respects in absence of its members. It shall also have such legal capacity as may be necessary for fulfilment of its’ purposes

2) Enjoy autonomy from MS (collective unity detached from the MS)Rights belonging to international bodies:

1) Right to enter into international agreement with non-MS on matters within the organization’s province = Treaties concluded by organization have effects of international treaties

2) Right to immunity from jurisdiction of State courts for acts/activities by organization (Otherwise States could interfere in their interest)

3) Right to protection for all the organization’s agents acing in the territory of a third state

4) Right to bring an international claim (damage caused by MS to organization)

National Liberation MovementsOrganized groups fighting on behalf of a whole “people”

- Characteristic of these movements has been the acquisition of control (control of territory is not distinguishing trait in contrast to insurgence)

- They are given international status on account of their political goalsRights and duties:

1) Right to self-determination, right to claim respect etc. - Organizations have obligations deriving from international rules

IndividualsTraditional international law did not include general rules conferring rights on individuals.

- Mainly arose with regard to piracyIn Modern law states have lost their exclusive monopoly over individuals

- Obligations: May be criminally liable for breaches

- Rights: Right not to become a victim of war crime, deriving from international rules, is not, attended by means of power that belongs to individuals (can only institute criminal proceedings before national courts possessing jurisdiction in some way)

- Treaty provisions conferring rights: ILO decided to confer on association of workers the right to demand compliance with ILO conventions by MSRight to petition international bodies is granted to individuals directly by international rulesLimitations

- Right in question is only granted by treaties and exists for labour relations and human rights

- Ind. Given right to initiate international proceedings before international body, for purpose of ascertaining whether state complained of has violated the treaty to detriment of the ind.

- Procedures ind. Are different from those in domestic law: They are not judicial in character, proceedings are quite rudimentary, outcome is not a judgement proper, rather a recommendation

Individuals have a few obligations (from customary law) and procedural rights ensure to the benefit of the ind., in contrast to the state they have limited legal capacity

International Institutions League of Nations (1919) and UN (1945)

Organisations established by inter-governmental agreement and having wide international responsibilities:

- USESCO: Co-operative ventures with national governments, Educational, Scientific and Cultural Organisation

- WHO- World Bank group- GATT (General Agreement on Tariffs and Trade)- World trade organisation: Main aims are to administer and implement

multilateral trade agreements together making up the WTO, to settle trade disputes

Regional InstitutionsOnset of the Cold War and failure of Security Council’s enforcement procedures stimulated to NATO and Warsaw Pact

- Most developed in Europe with EU, originally consisting of ECC, EURATOM and EEC for elimination of external tariffs and free of movement

- Council of Europe (1949): 47 MS, wide-ranging co-operative aims- Organisation for Security and Co-operation in Europe (OSCE):

Originally a conflict prevention organisation, responsible for promotion of human rights and democracy

- NATO (1949): Created to counter possible threats from the USSR, 26 MS, Consisting of supreme organ and a NATO parliamentary conferenceChanges due to ending of Cold war s.a. Euro-Atlantic Partnership Council (EAPC) together with OSCE states forming the Partnership for Peace programme

- Commonwealth of Independent States Based on respect for the territorial integrity of MS (established by Russia, Belarus and Ukraine)Supreme organ is Council of Heads of State, BUT decisions are to be achieved by common consent with the Council of Heads of Government

Organisation of American States: Emerged after the Second world war and consists of two basic treaties:

1) Rio Treaty (collective self-defence system)2) Pact of Bogota (collective security system, an attack on one being deemed

an attack on all)The organisation has adopted a Human Rights Convention and is the most developed of the regional organisations outside Europe

Arab League: Dealing with economic, cultural and social issues with headquarter in Tunisia

Organisation of African Unity: - Replaced by African Union in 2001 - Greater unity between African countries; defending the sovereignty;

independence of MS; promotion of sustainable development; peaceful resolutions of conflicts

- Union may intervene to a decision of the Assembly in respect of i.e. war crimes, genocide and crimes against humanity

Association of South East Asian Nations (ASEAN): - Economic, political and cultural aims and groups together Brunei,

Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam

UN- Established in 1945- 30 affiliated organisations- Including 191 countries - Four purposes: international peace and security, friendly relations,

solving international problems and respect human rights, centre for harmonizing

- All MS have a voice and a vote in the process - Six main organs:

1) General Assembly- All MS represented in a “parliament of nations”. - Peace and security, new members and UN budget need 2/3 majority,

otherwise simple majority- Cannot force actions, but recommendations are very important2) Security Council- Primary responsibility for maintaining international peace and security

- 15 Council members, 5 permanent (China, France, Russia, UK and US), 10 selected for two-years term

- Requires 9 votes, except on procedural questions (yes vote from all permanent members)

3) Economic and Social Council- Under overall auth. of General Assembly, coordinates economic and social

work- 54 members for three-years term4) Trusteeship Council- International supervision for 11 trust Territories, to prepare them for

self-government5) International Court of Justice- 15 judges elected by General Assembly and Security Council 6) Secretariat

UN system: World Bank + 13 “specialized agencies”. Autonomous bodies created by intergovernmental agreement (UNICEF, WHO etc.)

What does UN for peace? Disarmament: - Prohibit the development, production and stockpiling of chemical

weapons, has produced agreement such as Nuclear Non-Proliferation Treaty.

- System for standardized reporting of military expenditures help promote greater transparency in military matters

Peacemaking: - Brings hostile parties to agreement through diplomatic means

Peace-building: - Activities that address the underlying causes of conflict- Development assistance is a key element of peace-building- UN works to support good governance, civil law and order and elections

Peacekeeping: (Assembly and Council have competence to establish)- Most operations involve military duties, s.a. observing a ceasefire or

establishing a buffer zone

UN actions for peace:Africa: Campaign against apartheid and peace building activities in Central African Republic, Somalia etc. (p.52)Asia: UNAMA integrates all UN activities in Afghanistan, UN supervised voter registration which led to 78% if East Timorese voting for independence Europe: Towards resolving conflict in former YugoslaviaAmericas: Observed Nicaragua’s elections (first in independent country), and ended Guatemalan civil war after 35 years through negotiations Middle East: Estalished UN Assistance Mission for Iraq (UNAMI) (p.53)

What UN does for Justice, Human Rights and International law

Human rights: Right to life, liberty and nationality, to work and to take part in governmentRights legally binding by two international conventions:

1) Economic, social and cultural rights2) Civil and political rights

= International Bill of Human Rights - 80 conventions and declarations on right of the child, against torture etc. - UN human rights bodies contribute to early warning and conflict

prevention- Key to enjoyment of the right to development is the eradication of poverty

International law: - Framework of promoting international peace and security and economic

and social development resulting from 500 conventions, treaties and standards

- Law Commission prepares drafts on topics which can be incorporated into conventions and opened for ratification by States

- Kyoto = Climate change (ratified by 140 countries)- International efforts to create legal framework against terrorism- Tribunals: Have found several defendants guilty - Key United Nations goal: Establishing an International Criminal court

Other actions for justice and equal rights:- Granting independence to Colonial Countries and People- Helped end system of apartheid

What the UN does for Humanitarian Assistance

Emergency assistance: - In case of disaster supplied food, shelter, medicines- Has raised billions of dollars from international donors- Coordinates response to crisis through committees: UNICEF; UNDP

(development programme); WFP; UNHCR (Commissioner for Refugees)

Humanitarian response. - Assisted by UNHCR (people who fled war, human right abuse)- WFP, largest humanitarian organization

What the UN does for Development

Setting the agenda: - Goals of advancement of women, human rights, environmental protection - Combating HIV, malaria, ensuring environmental sustainability

Assistance for development: - Specialized agencies cover all economic and social areas. In cooperation

with UN, they help formulate policies, set standards and guidelines etc.

- World Bank provided 20,1 billion in development loans in fiscal year 2004

- Close coordination between UN and agencies is ensured through UN System Chief Executives Board (CEB)

Pooling resources - Global fund to fight AIDS, Tuberculosis and Malaria- Joint initiatives to expand immunization and develop new vaccines

OECDBring together the governments of countries to:

1) Support sustainable growth2) Boost employment3) Raise living standards

Is considered world’s largest and most reliable sources of comparable statistics, and largest publisher in fields of economics and public policy

- Governments compare policy experiences, discuss common problems etc.

Who drives the OECD’s work?- Council:

Decision making power, decisions taken by consensusMade up of one representative per member country plus representative of EU Commission

- Committees:30 member countries meet in committees to advance ideas and review progress in policy areasThere are around 200 committees, to request, review and contribute to work undertaken by the OECD Secretariat

- Secretariat2500 staff members who support activities of committees

Members/Partners:

- 30 Members whereof 20 became members in 1960- OECD has nowadays extensive contacts with non-members (CCNM)- 10 Global Forums have been established to address trans-boundary

issues- OECD has been engaged with civil society notably through Business and

Industry Advisory Committee- Has close links with Council of Europe and Econ. Committee of NATO- Close relations to International organisations

WTOIt is an organisation for liberalizing trade and:

1) … Negotiation Forum - WTO was born out of negotiations, and the bulk of WTO’s current work

comes from 86-94 negotiations called Uruguay Round and earlier negotiations under GATT

- Has helped to liberalize trade, even though WTO may also support maintaining trade barriers

2) … Set of Rules - Agreements, Negotiations signed by world’s trading nations and provide

the legal ground rules for international commerce = to keep trade policies within agreed limits

- To ensure that individuals, companies and governments know what the trade rules are; they have to be transparent and predictable

3) … Settle disputes - Need for interpretation of Agreements and negotiations due to interest

conflicts

OECD born in 1995 but GATT has provided the rules for the system since 1948- The last GATT round was Uruguay Round, which led to the WTO’s

creation, now covering trade in services, inventions, creations more than only goods

Principles of the trading system

1) Trade without discrimination Most-favoured-nation (MFN):- Cannot discriminate between trading partners- Every time a country lowers a barrier, it has to do so for the same goods

from all trading partners- GATT, GATS (General agreement on trade in services) and TRIPS (Trade-

Related Aspects of Intellectual Property Rights) cover all three main areas of trade handles by WTO

- Exceptions: Free trade agreements applying only to certain goods, special access to developing countries, in case of unfair trade

National treatment:- Imported and locally-produced goods should be treated equally- Applies only once a product has entered the market2) Freer Trade - Lowering trade barriers is one of the most obvious means of encouraging

trade- Different rounds (latest is the Doha Development Agenda) focusing on

lowering tariffs3) Predictability - To give businesses a clearer view of their future opportunities- When countries agree to open their mkt, they bind their commitments,

which amount to ceilings on customs tariff rates- One achievement of Uruguay Round was to increase amount of trade

under binding commitments, which raises degree of mkt security - One way to improve predictability is to discourage use of quotas and

limits4) Promoting fair competition - System allows tariffs and other forms of protection as long as rules

dedicate to open, fair and undistorted competition5) Encouraging development - Developing countries need flexibility in time to adjust

- At the end of Uruguay Round, developing countries were prepared to take on most of the obligations

- Current Doha Development Agenda includes developing countries concerns about implementing Uruguay Round agreements

Open TradeSince Second WW, Tariffs on industrial products have fallen steeply and now average less than 5% in industrial countries.

- There is a definite link between freer trade and economic growth- Liberal trade policies = sharpen competition and motivate innovation, and

Protection = Leads to inefficient producers supplying consumers with unattractive products

- Case of absolute advantage (Each country better at one thing), comparative advantage (One country is bad at making everything. Both would still gain from trade. Does not have to be best at anything to gain)

WIPOWorld Intellectual Property Organisation

- Dedicated to developing a balanced and accessible international intellectual property system

- Established by WIPO Convention in 1967 (headquarters in Geneva)- Goals1) Realizing Development potential of IP System2) Strengthening Infrastructure, Institutions 3) Development of International IP Law

How it works:- Functions of WIPO are set out in the WIPO Convention- 184 MS- Works with a wide spectrum of stakeholders - Largely self-financing (unusual within UN)

Preventing and Settling DisputesAfter second WW States revitalized and strengthened the traditional means for settling disputes and in addition established mechanisms for preventing disputes, inducing compliance with international law

1) Negotiations: Most elementary, negotiating between parties. Advantages: Both parties should derive some benefit from the diplomatic exchangeFlaws: It seldom leads to an in-depth determination; the stronger party is more likely to apply pressure to its counterpart

2) Inquiry : International body is set up, for purpose of explaining the facts by investigation (used by ILO, UN SC)

3) Good offices : Third State or international body induce the parties to negotiate a settlement

4) Mediation : Third party takes more active role, and promotes ways of settling the dispute

5) Conciliation : Even more active role, proposing the terms of settlement

Mechanisms:An additional goal of Arbitration is that of patching up the differences on the basis of international legal standards

- 1899 Permanent Court of Arbitration (PCA) was set up for peaceful settlement of international disputes

- Heyday of arbitration was the period between the two World WarsPermanent court of justice (PCIJ) replaced by the ICJ in 1946, had the merit that parties no longer had the choice of judges, assured the harmonious and logical development of international law and became more severe.

- In Arbitration courts jurisdiction is usually limited to a relatively small nr of states

New Law:Ban on the threat or use of force; leading to two important developments

1) States have increasingly resorted to traditional means of settling disputes2) UN has handled situations likely to jeopardize peace

Obligation to settle disputes peacefully:- States are at liberty to choose any means of peaceful settlement they

preferConciliation, the conclusions and proposals are not binding even though there are disputes that:

- Rules can only make sense if some compulsory means of settling disputes is established

- Others do not wish to tie their hands by accepting the obligation to one or another of the methods of settlement

Substantive law (system for compulsory adjudication), accounts for the exceptional acceptance of a method, inter alia = developing countries had to exchange modes of settling disputes with developed states, due to the complexity of the new law

The use of force (force: military violence)Most troublesome law is the regulation by international law of armed force

- There is no adequate, effective and compulsory machinery for the peaceful resolution of disputes of punishment of those destroying international peace

Unilateral use of force: Rules controlling the use of armed force by indicidual states or groups

- Designed to achieve goals personal to the acting state(s)Collective use of force: Rules indicating when force may be used by a competent international organization

- Result of the decision of a competent international organization UnilateralPrior to 1945Early days: Use of force by states governed by the Just War doctrine. Law was illegal unless undertaken for a “just cause”, s.a. wrong received or right illegally deniedLate 1700: Just War doctrine was refined, state could be said to be acting legally if it believed it had a just cause

1800 century: Sovereign right to resort to war, for any reason. International law regulated the actual conduct of war but did not interfere with a state’s right to pursue itUntil the birth of the League of Nations in 1919

- Use of force was classified by reference to the purpose (self-defence, protection of nationals)

League of Nations introduced a limit restriction on the sovereign right to resort to warIt was not effective in prohibiting resort to violence to any great degree, but had two consequences:

1) Self-defence began to emerge2) Force short of war began to appear more clearly as legal rights

1928: General Treaty, Kellogg-Briand Pact, supplemented Covenant- Ban on war was politically and legally possible but only applied to war

(not force)- Self-defence emerged as an independent legal right, and exception to any

prohibitionLaw after the UN CharterPrimary purpose is for all members to refrain from the threat or use of force against the territorial integrity or political independence of a state

- Scope of the ban in discussed and is not matched with right of self-defence etc.

Permissive interpretation:- Takes general view that reference may be had to pre-1945 rules- Sees ban as deprivation of ability for states to protect themselves

Restrictive interpretation:- Ban on the unilateral use of force, only used for self-defence- Peace and security is the primary aim of international law- See permissive rules as favouring powerful states

Article 2(4) InterpretationForce ”against the territorial integrity or pol. Independence

- Permissive scholars argue that as long as force is designed to rescue nationals not directed against territorial integrity it shall be lawful (Entebbe airport only case that relied on permissive view)

- Restrictive scholars (Kelsen) prohibit totally a state’s right to use force, in so far its not self-defence or against ex-enemy states

- Territorial Integrity and Pol. Independence comprise all that a state is - Art 2(4) Shall not be interpreted by the permissive view

Self-defenceCustomary right of self-defence 1837: The Caroline (US Secretary vs. British military forces)

- If crisis can be avoided by diplomatic representation, self-defence is not justified

Use of force permissible if (pre-1945 customary law)a) In response to an ongoing armed attack against state territory

(Kuwait vs. Iraq 90’)

Armed attack or threat to states security, response to attack against interests and necessity for forceful action are no longer lawful (only a))View supporting that Art 51 was never intended to narrow right of self-defence

1) Customary right of self-defence has never been abolished2) Art 51 was included in the Charter3) Art 51 does not say that self-defence is available only if an armed attack

occurs, and does not indicate that it has to be made by a stateCollective Self-defence:All members of the alliance will use force if any one of them is subject to an unlawful use of force = NATO

- Collective self-defence is not the joint exercise of individual rights, but is collective action in response to an actual armed attack against one state

- Victim should formally request assistance through its representativesInvitation and civil wars

- No other state may respond to a request for military assistance from a third state

- Invitations to intervene have being issued by entities without the right, s.a. minor rebel groups requesting assistance in order to overthrow established auth.

Reprisals- Regards violence as the proper legal procedure for the suspicion of rights

illegally denied = Art 2(4) has outlawed armed reprisalsProtection of nationals abroad and terrorism

- Right to use force to protect nationals abroad is lawful under UK law- If lawful ground for force:1) Host state must be unwilling to protect nationals2) National must be in serious danger3) Only use weapon of last resort4) Force as is reasonably necessary

Not considered as a use of force against the territorial integrity or pol. Independence

- Force used due to terrorism may be seen as opportunity as an excuse for engineering a change of government in target state and the occupation of its territory, as in Iraq and Afghanistan

- Contrasts between International law prohibiting the use of force and Willingness of powerful states to achieve their goals

- There is no law permitting a state to take unilateral action in these situations

Humanitarian Intervention- Right to intervene with force for humanitarian purposes without the

consent of the territorial sovereign- Must be auth. By a competent international organisation- Has been violated, as in case of invasion of the US in Iraq

Self-determination

- Use of force to achieve self-determination is legitimate1) Colonial power may not use force to suppress self-determination

movement. Freedom and independence is represented by customary law2) National liberation movements overthrow colonial power to achieve self-

determination? Is not considered illegal, but complicated issue p.1223) State may use force to assist a national liberation movement in fight for

self-determination? No prohibited, as long as no internal war. May assist politically and economically in fight but not military otherwise

Hot pursuit- Crossing frontier in order to pursue and capture persons who have

committed offences in your state- Punitive, rather than defensive = similar to reprisals- International law does not accept the principle of land-based hot pursuit

Collective Force of law- UN and other international org. use force on behalf of the community- This is in addition to any right which ind. States have under unilateral

rules- International org. are simply the umbrella under which collective self-

defence is organized in joint response to unlawful actUNSecurity Council has primary responsibility for maintenance of international peace and security

- Was given powers in Chapter VII, military action or threats encompassed by Art. 39, even though threats to peace is not limited to military situations

- Art. 41 involves non-military sanctions, s.a. trade boycott, arms embargoCouncil has developed practice whereby it permits, request or auth. States to use force to restore international peace and security; it does not require them to do so

- Invasion of Kuwait in 1990 is the most effective enforcement action so far, which auth. UN members to take all necessary means to restore Kuwait’s sovereignty

- Collective security can be a one sided affair, since it works when powerful members of the UN put forth their collective will (US, UK..)

Collective security vs. Collective Self-defence- Purpose of self-defence is an emergency response, where defender is

entitled to use force- Purpose of collective security is concerned with maintenance of

international peace and securitySelf-defence undertaken until Council has taken necessary measures = restoration of the status quo ante

- Power of the five permanent members has been enhanced by developments, s.a. involvement in Somalia, and Liberia etc action in East Timor etc.

- It is not the Council’s powers put the members’ willingness to use power in the manner and for purposes of the UN Charter

General Assembly

- If Council could not discharge primary responsibility because of use of veto by permanent member, Assembly shall consider the matter immediately

- More powerAssembly used resolution as the basis for the formation of peacekeeping force (UNEF)Council has today taken on the mantle of providing peacekeeping forces where these are requestedRegional OrganisationsArt. 53, Council may utilise regional organisation (NATO etc.) for enforcement action, only with authorisation of Security Coucil

- 1995 Coucil auth. MS acting in concert with NATO to take all necessary measures to oversee General Framework Agreement for Pease in Bosnia Herzegovina

- USA argued that organisations should be permitted without consent, as long as it does not amount to “enforcement action”

Must be in conformity with jus cogens and purposes and principles of the UN

p.140Protection of Human RightsAfter the Second World War the human rights doctrine has become, for some countries, one of the significant postulates of their foreign policy

- Forces States to give account of how they treat their nationals, administer justice, run prison etc.

- Theory of human rights diverged radically from the political philosophy of State sovereignty

Traditional international law:Individuals were under the exclusive jurisdiction of the State which they were nationals and where they lived

- They were used, protected, or sacrificed according to what State interests dictated

- Exceptions were Treaties prohibiting slave trade- And after WW I safeguarding religious, ethnic and linguistic minorities- After WW II individuals began to be protected qua single human not

according to stateThings changed drastically due to the share conviction on the Nazi regime (disregarding of the dignity of the human being)The victors adopted a two-pronged strategy:

1) Development of international criminal law. Punishing German and Japanese war criminals

2) General principles on human rights designed to serve guidelines to UN

The UN charterFour freedoms, which Roosevelt saw as important goals of future US foreign policy

1) Freedom of speech 2) Freedom to worship God in his own way 3) Healthy, peaceful life secured 4) Freedom of fear

1944 it was suggested that GA and Un should be responsible for basic human rights

- Four powers (US, USSR, UK and China) produced the provision on human rights

- Four Powers considered it advisable to strengthen their proposalsAfter opposing proposals from three different groups, the compromise took shape in the following provisions:

1) Let alone protection of human rights (not specify into right to work etc.)2) Right of self-determination of people as a guiding principle3) Powers of GA were further limited

To make use of the loose formulas of the charter two courses of action were opened:

1) Using GA as a regular diplomatic conference, where States can address general recommendations to them in keeping liberal construction of Art. 2.7

2) Placing a strict interpretation on Art. 2.7 and where UN could turn the GA into the role of watchdog

UN took the second path, different stages changing UN action:- First stage was characterised by Western dominance, and lead to

adoption of 50’s European Convention on Human Rights- Second stage included UN lead of developing countries, and need for

Western countries to come to terms with other 2 groups (USSR, Latin American)

- Third stage new doctrine of human rights and prevalence of developing countries; disappearance of three markedly differentiated groups

Standard settinga) Universal Declaration (1948)

First step was attempt by UN GA to draw up an international document on human rights for States dissimilar, with diff. economic and pol. Structures, diff. religious philosophies with Western on one hand, and i.e. Africa on the other

- Was not legally binding, rather a recommendation - The view of human rights expressed in it is Western

BUT: colonized people were completely denied their right to freedom, nor did Declaration say anything about economic inequalities= However Declaration was of great importance in stimulating the international promotion of human rights

b) International Treaties Before Declaration it was agreed upon to translate general principles into legally binding instruments

- First it was necessary to spell out general standards of the Declaration, both at universal and regional level

- Second treaties were to be worked out in spec. Areas (greater sign and more in need of urgent international legislation)

Covenant cover the whole range of fundamental rights- Developing countries may determine to what extend they would

guarantee econ. Rights spec. in the Covenant to non-nationals:

- May discriminate betw. Nationals and foreigners justified by econ. Circumstances

Spec. Treaties was hammered out (Genocide, discrimination against women etc.) Tendency to overrule objection of dom. Jurisdiction:

UN tended to reject the objection of State sovereignty put forward by a # of states (questions concerning violations of human rights)

- Intervention in the affairs of ind. States was fully justified so long as serious violations had been committed

- Expansion of Territorial scope “Each State… undertakes to respect and to ensure to all ind. Within its territory and subject to its jurisdiction the rights recognized in the present Covenant”

- International bodies interpreted those obligations as also having an extraterritorial scope = BUT such a view is contrary to consistent interpretation

- Human rights should be respected not only on their own territory but also abroad, whether individuals subject to this auth. Are nationals or foreigners

Monitoring of Compliance (with the human rights) Universal level

There are monitoring mechanisms established by:1) International treaties : Among them racial discrimination (monitored by

committee on elimination of racial discrimination) etc. 2) UN resolution

Supervisory procedure:a) Examination of periodic reportsb) Inter state complaintsc) Request of individuals

Mechanisms may be considered to be reasonable effective in:a) Focusing on countries or problems that deserve to be carefully

scrutinizedb) Drawing attention of States, organisations etc. at large to some spec.

Issues concerning human rights c) Putting pressure upon states with view to improve their human rights

record Regional level

Regional supervisory mechanisms are normally judicial bodies, where ECHR (European court of Human Rights) is the most advanced.

- Since 1999 the Court has been a full-time judicial body- Any person, non-gov. organisation may address a petition to the Court - Only binding at international level, thus if the Court finds that a State is in

breach it has to make reparation within own legal system- The Court is gradually effecting a harmonization of the various legal

systemsp.149 (In America Commission and Court are playing an important role)