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Public International Law Hoorcolleges
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Public International Law HCHC 1
Foundational subjects
1. Sources: what is international law?
2. Subjects: to whom does it apply?
3. State responsibility: when is it violated?
4. Dispute settlement: who gets to decide when it is violated?
5. Jurisdiction: what are the limits of a state’s legal order?
6. Immunity: when is jurisdiction barred?
The Chagos Archipelago case
- Island in the middle of the Indian ocean
- A spot for a military base of the UK (cold war)
British Indian Ocean territory established
International dispute settlement: ICJ International Court of Justice
- Fundamentals of IDS
Types of adjudicatory bodies: standing vs ad hoe (temporary)
Contentious jurisdiction: legal disputes between states only
- So not for disputes between a state and an individual or company f.a.
Methods of consent: accept the Court’s jurisdiction art. 36 ICJ (only binding disputes)
1. Special agreement (ICJ statue art. 36(1))
o North-sea continental shelf case
o Backward looking
2. Compromissory clause art. 36(1) ICJ Statue
o Forward looking
3. Optional clause decl. art. 36 (2) ICJ Statue
o Only applies to ICJ cases not ad hoe
4. Forum prorogatum art. 38(5) ICJ Statue
o Based on its behaviour
Advisory jurisdiction (UN Charter art. 96)
Advisory questions when asked
Non-binding art. 33 UN charter
- Discretion to decline an advisory opinion ICJ art. 65
ICJ’s Advisory jurisdiction in Mauritius AO
The states did not accept the methods, so could they ask for an advisory opinion?
Mauritius asked the general assembly for an advisory opinion, they have the
authority to do so. So, they ICJ has jurisdiction. Even though UK didn’t consent.
Was the decolonisation in compliance with international law?
Kijken naar de bronnen van international recht
Legal consequences
Sources of international law - article 38 ICJ:
1. Primary law
, - Treaties: between states: pacta sunt servanda
- Customary international law
State practice: general practice among states and this is accepted by those states
as legally binding
Opinion iuris: customary law binds all states, including those that have not taken
part in the formation of the practice
2. Sources of secondary law
- Judicial decisions and scholarly contributions
Sources in Mauritius AO (para 144-162)
- UN charter says almost nothing about self-determination, so treaty law plays a
second role.
Customary law: friendly relations Deel
GA revolution 1960: it represents a moment of state practice and opinio iuris
It was confirming what already existed (from 1514)
Zie blz 9
Statehood
- States make the law, and are also the main subjects of the law
It’s important to underline what a state is, and what not
What is a state? – Criteria Montevideo Convention
1. Permanent population
2. Defined territory
3. Government (flexible, doesn’t have to be effective)
4. Capacity to enter into relations with other states
- Recognition: plays a declaratory role, helps to create the legal reality
The chagos archipelago is not a state
Self-determination
- In the context of decolonisation (GA Res 1514)
Played an important role by creating the customary law
Uncontroversial: People have the right to self-determination which means that they must be
free to political status, economic social and cultural development (para 1)
Controversial: extent to which the right to self-determination consists outside the
decolonisation
- Immediate steps to transfer powers (para 5)
Unconditionally and without delay
Territorial integrity (para 6) of the former colonies
(uitvloeisel van self-determination)
Je mag niet gebieden splitsen bijv, tenzij expliciet geaccepteerd door bevolking
Self-determination in Mauritius (par 170-174)
- There was no real agreement between the uk and mauritus about the separation
This was because the council was under control of the UK at the time
- Heightened scrutiny to the issue of consent
- Free and genuine expression of the will of people concerned
There was no real option to decline for Mauritius
, UK had an obligation to respect the self-determination
The decolonisation process was not completed in accordance with international
law because UK had to respect the territorial integrity
State responsibility
The second question: Legal consequences because of illegal decolonisation
- The court answers the questions by rules of state responsibility
Internationally wrongful act
1. Attribution: it must be an action of a state (not individual)
Effective control (military for example)
2. Breach: is there an international law violated
- Circumstances precluding wrongfulness (excuses or justifies)
Legal consequences
Cessation and non-repetition (prevent future violations)
Reparations (restitution, compensation, satisfaction)
State responsibility in Mauritius (par 175-182)
- Uk is under obligation to bring an end to administration
- Only consequences: cessation (end administration) and the fact that the UN member
states must cooperate
Ze hebben verder geen reparations (weird)
Dissenting opinions (begint te lijken op consenting ipv advisory jurisdiction)
Week 2
Human rights law
- Individuals possess right: can pursue claims (normally only states)
- For every right there is an obligation
Individuals bear right, states the obligations (Vertical parties)
Treaties between states, but for the benefit of individuals
- Some rights are held by people (self-determination)
Historical background
- Inter-war period (between 1e en 2e WO)
Alleen regels m.b.t. vreemden in een land maar niet voor eigen bevolking
Treaties concerning minorities
League of nations mandates system
International labor organization
- Post-second world war
Reaction to the holocaust to prevent from occurring again
1945 UN Charter
Promote, encourage human rights (art. 1(3), 55©)
o But this doesn’t clarify what rights
Clawback (art 2(7))
o The UN should not interfere with protection of human rights
Missing the institutional framework
o The general assembly
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