Samenvatting
Samenvatting Public International Law
- Instelling
- Universiteit Leiden (UL)
Samenvatting van de hoorcolleges en werkgroepen van het derdejaarsvak Public International Law van de bachelor Rechtsgeleerdheid
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Voorbeeld 3 van de 18 pagina's
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Voorbeeld van de inhoud
Summary Public International LawWeek 1: Introduction to PIL
International Dispute Settlement
There is no general obligation to resolve disputes. If states decide to settle disputes, they are obliged to do so
peacefully, they cannot resort to violence. There are different types of dispute settlement (art. 33 UN
Charter). Focus in the course is on adjudication: a court renders a binding judgement based on the law.
Adjudication bodies can be ad hoc (temporary) institutions, or standing courts (permanent). International
Court of Justice (ICJ) is a standing court and the principal judicial organ of the UN, can deal with all aspects of
international law (as long as it has jurisdiction).
Methods of consent to litigate disputes at ICJ or arbitration tribunal (art. 36 ICJ Statute):
1. Special agreement: a small treaty (first sentence 36(1)). Backwards looking, only for existing disputes.
2. Compromissory clause (36(1)): ‘all matters especially provided for…’. Is an article in a treaty between
parties that says they consent to the jurisdiction of the ICJ in case of a dispute. Acts prospectively; for
disputes in the future.
3. Optional clause declaration (art. 36(2)): acts prospective, states can file a declaration with the ICJ that
accepts jurisdiction of the court over all disputes, or specific types of disputes (can make reservation).
4. Forum prorogatum (art. 38(5) ICJ Rules): acts retrospective. State can file application against state
that hasn’t consented, in the hope that the state will on a one time ad hoc basis accept jurisdiction.
Methods are only for contentious jurisdiction. There are 2 types of jurisdiction:
Contentious jurisdiction: only where there is legal dispute between states. So no companies and
states, of other dispute than legal. Judgements are binding on the parties; obliged to comply.
Advisory jurisdiction: certain UN entities can ask for advisory opinion, ICJ can give this on requests
concerning legal questions (not disputes). An advisory opinion is not binding.
Mauritius advisory opinion. Background: UK feared withdrawal from colonies would create a power vacuum
that would be filled by Russia. In 1965 the UK and Mauritian council of ministers concluded the Lancaster
House Agreement; decided to detach the Chagos Archipelagos islands from Mauritius, the US would use it for
a military installation. Problem: the council of ministers didn’t exercise real authority and the UK exercised
pressure on the council; link to decision to grant Mauritius independence. UK agreed to return the Chagos
islands once they were no longer necessary for defence purposes. In 1968 Mauritius became independent and
the inhabitants of the Chagos islands were forcibly removed. US has used the islands for transporting terror
suspects. Optional clause declaration: UK has many reservations, including one about disputes with current or
former members of the Commonwealth. So Mauritius cannot bring such disputes to ICJ.
ICJ discussed whether it had the discretion to decline to give an advisory opinion, because art. 65 ICJ Statute
says ‘may’ and not ‘must’. The Court has the discretion to decline giving an advisory opinion, when it would be
inappropriate and would negatively impact its integrity as an institution. Because of the reservation of the UK,
the question arose whether the GA was circumventing this fact, if the request was about a bilateral dispute
between the UK and Mauritius. The ICJ decided that the request concerned decolonization, a broader frame
of reference than just a bilateral dispute over territory and sovereignty, and that there were no compelling
reasons to decline the request (par. 83-91).
Sources of international law
Most dominant source is treaties/ international conventions (art. 38 (1)(a) ICJ Statute). Other sources: General
Principles of International Law, judgments and academic writings & customary international law: not codified
(art. 38 (1)(b)). Consists of 2 components:
- State practice: actions and statements. Practice has to be wide spread, relatively universal and
relatively consistent. Usually develops over time.
- Opinio juris: acceptance of a practice as law, that a state feels a legal obligation. States don’t have
mental capacity, so you have infer this from state practice. Opinio juris is important in determining
whether a custom exists, because it allows to distinguish between state practice done out of
convenience/ habit/ politeness and state practice done out of legal obligation.
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,Example of CIL: self-determination. Is mentioned in art 1(2) UN Charter, but what it entails is found in CIL.
Mauritius advisory opinion: ICJ found that accelerating decolonization is evidence of state practice in 1960’s,
when 28 non-self-governing territories exercised right to self-determination and became independent. GA
Resolution 1514 represents defining moment in consolidation of state practice on decolonization. Resolution
is non-binding, but it has a declaratory element: statement of what was already there (par. 152). ICJ inferred
this was out of a sense of legal obligation: customary rule already existed and was reflected in the resolution.
Statehood and self-determination
Criteria for statehood are in the Montevideo convention.
Permanent population: can be very small, but key is that it shouldn’t be transitory.
Defined territory: can be very small, but there has to be a more or less defined territory. A section of
the border can be contested, but in general it should be clear where the state begins and ends.
Government: doesn’t have to be effective and not necessarily democratic, but some form.
Entity has to have capacity to enter into relations with other states.
Not in Montevideo: recognition, whether other states recognize the state as a state.
Self-determination. Peoples have the right to exercise right to self-determination, in the context of
colonization. Controversial is the extent to which this right exists outside of colonial context.
GA Resolution 1514: all peoples have this right, which means that they must be able to freely determine
political status and pursue economic, social and cultural development. Colonial powers are required to take
immediate steps to transfer powers to non-self-governing territories (colonies). The decolonization process
cannot entail detaching part of the colony, that is not in accordance with the right to self-determination.
Respect for territorial integrity is a key element of the right to exercise self-determination. Territorial integrity
follows logically from the right to self-determination. Any detachment is not allowed, unless it is based on the
freely expressed and general will of the people of the territory (advisory opinion, par. 160).
Mauritius advisory opinion: there was no real agreement about the detachment. The Mauritius council of
ministers was effectively under control of the UK and therefore didn’t have the capacity to freely express their
will, so the detachment of the Chagos islands were not considered to be based on free will. The UK had the
obligation to respect the territorial integrity and the decolonization process was not completed in accordance
with international law.
State responsibility
Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Consequence of violation of
international law can be state responsibility, when a state commits an internationally wrongful act. This
requires attribution and breach (art. 2 ARSIWA). Attribution = there has to be an act or omission of a state,
conducted by a state organ, that is attributable to the state (art. 4-11 ARSIWA). Breach = when an act or
omission of a state is not in conformity with an international rule (both customary or treaty based, art. 12-15
ARSIWA). There are 2 categories of legal consequences: forward and backward looking. Forward looking =
cessation and non-repetition; make sure that such conduct doesn’t reoccur in the future (art. 30 ARSIWA).
Backward looking: reparation; establishing the situation that existed prior to the wrongful act, e.g. by
restitution or compensation (art. 31 ARSIWA).
Mauritius advisory opinion: ICJ decided that UK’s continued administration is an international wrongful act
that activates state responsibility. Deals with cessation.
Working group
All UN members are automatically parties to the Statute of the ICJ, but they still have to consent to the
jurisdiction of the ICJ. Methods for consent (art. 36 ICJ Statute): special agreement, compromissory clause,
optional clause declaration and forum prorogatum. When a state consents to the jurisdiction of the ICJ in all
cases (via optional clause declaration), it recognises the jurisdiction as compulsory.
There is a debate on whether the Montevideo criteria are enough to be a State or if recognition is also
necessary. Declaratory theory: is about the evidence on whether the criteria are met. Constitutive theory: the
recognition of an entity as a State is a legal requirement as well.
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, Week 2: Human Rights
There are 9 core human rights law treaties, supplemented by protocols. All together they cover different
types of rights, right holders and human rights concerns. For every right, there is an obligation/duty. Bilateral
treaties (between 2 states) are horizontal; only the states bear the rights and obligations. While individuals
are also affected by the treaties, they don’t bear rights under them. This is different in human rights law
(unique): peoples bear rights and states bear obligations/duties. This field of law is party vertical.
In general only states have legal personality, but in the international human rights field individuals have it too;
in limited circumstances they have the capacity to bring a claim before a court/tribunal.
Historical background
Inter-war period: international law didn’t govern way a state treated its own population, but the way it
treated foreigners. There were 3 developments important for the growth of human rights law. 1)
International Labour Organization developed in 1919, concerned right to freedom of association. 2) treaties
with the Balkans about the treatment of minorities. 3) Mandate system of League of Nations: basic protection
for indigenous peoples living in former colonies of states that were defeated in WW1. These rights were
specific for a certain class of people, and international human rights law doesn’t make a distinction between
people common art. 2 of the ICCPR and ICESCR.
Post-Second World War: early instruments of international human rights law have to be understood as a
reaction to the holocaust. The UN Charter (1945) was a step towards trying to ensure a legal framework to
prevent the atrocities of WW2 from ever reoccurring. Promotes respect for human rights and no
discrimination (art. 1(3)). Charter doesn’t authorize the UN to intervene in matters which are essentially
within the domestic jurisdiction of a state (art. 2(7)). The Universal Declaration on Human Rights (1948) is a
GA resolution, so technically non-binding. But it is very important and influential in the development of
human rights law, much of it reflects customary international law. Is the starting point for the 2 Covenants;
idea was one big treaty, but that didn’t work because of Cold War politics (communist countries worried
about accountability for political rights, capitalist counties about enforcement economic rights). The UDHR
and 2 Covenants = International Bill of Human Rights.
Civil & Political v. Economic, Social & Cultural Rights
International Covenant on Civil and Political Rights (ICCPR) includes the right to life, liberty and security of
person (art. 3), the right not to be subject to torture (art. 5) and the freedom to peaceful association.
International Covenant on Economic, Social and Cultural Rights (ICESCR) includes the right to an adequate
standard of living (medical care, social services, art. 25), the right to work (art. 23) and to education (art. 26).
The Covenants are linked, but also have fundamental contrasts. ICCPR calls for immediate implementation by
states (art. 2(1); undertakes to), ICESCR calls for progressive implementation (art. 2(1); undertakes to take
steps). CP rights constitute a negative obligation for states, not to do something, to refrain from interfering
with the enjoyment of human rights. ESC rights constitute a positive obligation, requires states to do
something, e.g. make legislative changes, establish schools. This contrast is an oversimplification, CP rights
also have positive obligations and ESC rights negative obligations. There is a spectrum, negative – positive.
PC rights are more specific and concrete, therefore easier to make claims (justiciable). ESC rights are more
abstract in their formulation and therefore have more discretion in their interpretation.
Tripartite Typology = states have to respect, protect and fulfill all human rights. Respect: refrain from
interfering. Protect: state has to prevent other parties from interfering with the enjoyment of human rights.
Fulfill: states have to take action to facilitate the enjoyment of human rights.
Institutional framework
UN Charter-Based
Commission on Human Rights (1946-2006): drafted human rights treaties (UD and Covenants), core function
was monitoring through experts with mandates for a particular country or theme. Basis: art. 68 UN Charter.
Consisted of 53 state representatives (inherently political body), elected for 3 year teams and can serve
eternally. Was not always in operation, met one time a year. Ended because of controversy about the way it
operated; member states with poor human rights records, selection of country specific mandates was political
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