College aantekeningen
Hoorcolleges Public International Law
- Instelling
- Universiteit Leiden (UL)
Aantekeningen van de hoorcolleges van het derdejaarsvak Public International Law van de bachelor Rechtsgeleerdheid.
[Meer zien]Voorbeeld 4 van de 33 pagina's
Voorbeeld 4 van de 33 pagina's
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Voorbeeld van de inhoud
Hoorcolleges PILWeek 1: Introduction to PIL
Case of Mauritius. Became independent state after being colony of UK. British Indian ocean territory
remained.
Case represents countless injustices related to colonization. Hidden subtext related to US and war on
terror. Site of US military installation.
Foundational topics: rules about what international law is, to whom applies, what happens when
violated and who decides if it is violated. Like ICJ, what is advisory opinion, customary law, what
qualifies as a state? State responsibility.
Jurisdiction and immunity are not covered today, but will be covered in next weeks.
The Cagos Archipelago
Bachground: UK feared withdrawal from colonies would cerate power vacuum that would be filled bij
Russia. UK and US decided to conduct survey and find place for military installation. Diego Garcia is
remote dependency of colony of Mauritius. 1965: agreement UK and Mauritian council of ministers –
Lancaster House Agreeme nt. Decided to detach Chagos islands from Mauritius. Problem:
council was meant to be representative, but didn’t exercise real authority, that was all with UK. And
problematic, because consent was obtained through pressure from UK on council – linked to decision
to grant Mauritius independence. UK agreed to return Chagos once no longer necessary for defence
purpose.
1968 independence. Inhabitant Chagos islands were forcibly removed from island. Mauritius wants
the island back, but to this day had not happened.
US has used island for transporting terror suspects; extraordinary renditions. Refers to extra judicial
transfor of terror suspects; circumventing laws about interrogation, torture = very controversial.
International Dispute Settlement
Fundamentals of IDS. Disputes in IR are regular, about money or a border conflict or question about
the law. There is no general obligation to resolve disputes. If states decide to settle disputes, they are
obliged to do so peacefully, cannot resort to violence.
Different types dispute settlements. Non-binding forms: negotiation, mediation, conciliation and
inquiry. Art. 33 UN Charter. In this course focus on adjudication; court renders binding judgement
based on the law. Different types of body: today focus standing court; International Court of Justice;
principal judicial organ of UN. Alongside GA, SG en Secretariat. ICJ is particularly important: can deal
with all aspects of international law; whole span of the field (As logn as it has jurisdiction). Has long
line of cases. Sinds 1945. Predecessor: permanent court of international justice (league of nations
between world wars). 100 years of jurisprudence from both courts.
Also ad hoc or teomporary institutions, like arbitration tribunal. For particular case, dissolves after is
done.
In Mauritian advisory opinion references to arbitration between UK and Mauritius.
Methods of consent. Art. 36 statute ICJ. Methods of consent to litigate disputes at ICJ or arbitration
tribunal:
1. Special agreement; small treaty (first sentence lid 1). Only special agreements for disputes
that already exist; backwards looking.
2. Compromissory clause (36(1); all matters especially provided for…). If dispute arises about
implocation of application of treaty, refer to ICJ or arbitration tribunal. Acts prospectively; is
for disputes in the future.
, 3. Optional clause declaration, only for ICJ, also prospective. (art. 36(2)). States can file
declaration with ICJ that accepts jurisdiction court over all disputes, or specific types of
disputes.
a. Example: UK has many (clever) reservation, one about: current or former members
of the Commonwealth. So Mauritius cannot bring such disputes to ICJ.
4. Forum prorogatum, only for ICJ. Is retrospective. Very rarely. State can file application in
hope that would be respondent will on one time ad hoc basis accept jurisdiction. Statutory
basis is in ICJ’s rules.
Names of methods are not in statute. Methods are only for contentious jurisdiction.
2 types jurisdiction ICJ
Contentious jurisdiction; only where there is legal dispute between states.
o So not between state-individual or state-company, and has to be legal dispute and
not political. Judgements are binding on the parties; obliged to comply. This is vast
majority of courts work.
Advisory jurisdiction
o Certain UN entities can ask for advisory opinion.
o ICJ has jurisdiction to give advisory opinions about requests concerning legal
questions. So questions, not disputes. When court gives opinion, is not binding.
In practice proceedings for advisory is somewhat similar to contentious.
In last 20 years important advisory opinions. This one about Mauritius, independence Kosovo and
Isreali security law.
In Mauritius; court discussed whether it had discretion to decline to give advisory opinion. Why
issue? Because of art. 65 of Court statute; uses the word ‘may’ instead of ‘must’. Court may give
opinion, not must give advisory opinion. Circumstances in which would be inappropriate for court to
give advisory opinion. Court has discretion to decline giving opinion, when would be inappropriate
and would negatively impact integrity as institution. Ability to decline is connected with protection as
function of legal institution. Balanced: in courts eyes giving opinion represent participation in
activities regarding UN; finds it important to give advisory opinions.
Distinction:
Compromissory: dispute settlement contained in treaty.
Optional clause declaration: states have option to submit to ICJ, through which it accepts courts
jurisdisciton in general or for particular kinds of cases.
Mauritius advisory opinion
Par. 56-62- jurisdiction.
GA requested court to give advisory opinion and GA has authority to do so and ICJ had jurisdiction.
GA asked 2 questions.
1: process decolonization was lawfully / in compliance with international law with granting
independence and in particular cutting off of Chagos?
2: what are the legal consequences?
Par 64; discretion. 4th line of argumentation: questions of GA relate to pending bilateral dispute
between UK and Mauritius and UK hasn’t consented on jurisdiction of court (because reservations).
Requesting advisory opinion on dispute, GA is circumventing fact that UK hasn’t consented to
settlement of this dispute to ICJ. But court decided that opinion concerned decolonization, broader
frame of reference, than just bilateral dispute over territory and sovereignty. Fact that might make
statements on legal issues that UK and Mauritius disagree, is not circumventing. This is fine line. In
separate and dissenting opinion, judges talk about this particular point. In questions to court, no
words like sovereignty and territory are used, only about kolonization.
,Sources of international law
Discovery of what applicable law was, was difficult, because it was common law. PIL lacks
constitution that says sources of IL. And based on common law, not written down and not clear when
it started existing.
Art. 38 ICJ Statute says sources of law.
Lid 1 sub a: treaties (same as international conventions), is most dominant source.
Customary international law; no codification. Examples: state immunity, self-determination. 2
components; state practice and opinio juris. State practice = actions and statements. Mostly
statements, because not many ways to act (military is one). Practice has to be wide spread, relatively
universal and relatively consistent (and persuasive). Usually develops over time. Opinio juris =
acceptance of a practice as law, legally obligated. States are not human beings with mental capacity,
so you have to look at state practice and infer what opinion juris is. Opinio juris is important in
determination whether custom exists, because allows us to distinguish between state practice done
out of convenience/ habit/ politeness and state practice out of legal obligation. Difficult to identity
opinio juris, because states don’t usually clarify why they are doing things.
Metaphor: like an ingredient in a recipe. Opinio juris is the way in which we understand state
practice.
Art. 1 par. 2 UN charter; self-determination of peoples is one of the purposes of the UN. What that
entails is not in the charter. Court has to turn to customary law.
Detachment 1965, Mauritius independent 1968. Difficulty in trying to pinpoint moment in time when
custom was cristalized. During proceedings, some states like UK and US argued that right to self-
determination only cristalized in 1970.
Court: accelerating decolonization as evidence of state practice in 1960’s. In 1960 18 former colonies
gained in dependence, 17 of which in Africa. Over course 1960s, 28 non self-governing territories
exercised right to self-determination and became independent.
Relevant GA resolution; court takes to be evidence of both state practice and opinio juris. Resolution
1514 (1960), represents defining moment in consolidation of state practice on decolonization. This is
where everything cristalllized. Although they are non binding, it had declaratory element; statement
of what was already there. Court also infers that is was out of a sense of legal obligation; customary
rule already existed and was being reflected in the resolution. Voting record significant, 89 voted for
and only 9 obstained.
Statehood and self-determination
States make the law and the law applies mostly to states, in public international law. Criteria in
Montevideo convention.
Permanent population; it can be very small, but key is that it shouldn’t be transitory; not only
present during certain time of year (fish ready to be caught as example)
Defined territory; it can be very small, but there has to be more or less defined territory. Can
be section of border that is contested, but in general should be clear where the state begins
and ends.
Government; doesn’t have to be effective and not necessarily democratic, but there has to
be some government.
Entity has to have capacity to enter into relations with other states. The states in the US
cannot do this.
Not in Montevideo: recognition, whether other states recognize the state as a state.
Self-determination
Peoples have right to exercise right to self-determination, in context of colonization. Uncontroversial
that people who are under colonial power have right to excercie right to self-determination.
Controversial: extent to which this right exists outside of colonial context.
, GA in resolution 1514: all peoples have right, this means that must be able to freely determine
political status and pursue economic, social and cultural development. Also indicates that colonial
powers are required to take immediate steps to transfer powers to non-self-governing territories
(colonies). Par. 6: any attempt aimed at partial or .. destruction.. incompatible with purpose UN; if
decolonization process entails detaching part of the colony, that is not in accordance with right to
self-determination. So respect for territorial integrity is key element of right to exercise self-
determination. Territorial integrity is corollary of right to self-determination; follows logically from
right to self-determination. Any detachment is against right, unless based on freely expressed and
general will of people of the territory.
Mauritius; court: there was no real agreement about detachment. Mauritius council ministers was
effectively under control of U Kat the time, so no capacity to freely express will. Heightened scrutiny
should be given to such purpoted consent on part of non-selfgoverning territory. Court is suspicious
that colonies consented, because don’t exercise own authority or power. Detachment Chagos not
based n free will. UK had obligation to respect territorial integrity and decolonization process was not
completed in accordance with international law.
Consequences; state responsibility.
Court answers question on consequence by reference to law on state responsibility. Decides that
UK’s continued administration is wrongful act on state responsibility.
Internationally wrongful acts consists of: attribution and breach. Attribution: has to be act or
omission of a state; general rule is that conduct of states organs is attributable to the state
(paramilitary groups not, but some exceptions). Breach: when act or omission of state is not in
conformity with international rule (both customary and treaty based).
Legal consequences, 2 categories: forward looking and backward looking.
Forward: cessation and non-repetition – make sure that such conduct doesn’t reoccur in the fuute.
Backward: reparations. Establishing the situation that existed prior to wrongful act. Restitution or
compensation might be appropriate.
Court deals with cessation. Russian judge thought that court was crossing a line by deciding on a legal
dispute. Judge Italy; was close, but court hadn’t expressed itself on bilateral relationship, because no
reparations.
Week 2: Human rights
Last week: revision some of instrumental topics. International dispute settlement, focus on
contentious and advisory opinions. …
Introduction to human rights law
9 core treaties, supplemented by protocols. Taken together, cover whole range of rights and
different types of rights, different types of right holders (children, disabilities) and certain human
rights concerns (torture, disappearances, discrimination).
Besides international framework, also regional frameworks. Asia doesn’t have binding human rights
treaties. Focus today: international. Case law: ECHR (European Court of Human Rights).
Relevance for daily life: issues with teacher salary, stikstof crisis. Corruption.
Legal personality of individuals: in general only states have legal personality, but in international
human rights field, individuals have it too; possess rights and in limited circumstances have capacity
to bring claim before court or tribunal. For every right there is an obligation/ duty. Where there is a
rightholder, there is a dutyholder. In bilateral treaties (e.g. extradition between US and NL), it is
horizontal; between states. While individuals are affected by these treaties, they don’t have rights
under them, only US and NL bear rights and obligations. Is different in human rights law, makes it
unique in field of international human rights law: peoples bear rights and states bear
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