THE MAKING OF INTERNATIONAL LAW
QUICK HISTORY
- Treaty of Westphalia treated as origin of international law (though there were inter-state agreements from way back)
o Accommodating not only Europeans but also ‘others’ (still a very Eurocentric idea)
o What you consider as the beginning depends on who you are and where you’re from
o Vittoria: Indians are capable of possessing capacity of reason and because of it they can be part of the universal legal
order (yet they cannot reason, meaning they’re not equal in practice they become subject to law they aren’t even
aware exists) (such thinking justifies difference in treatment and using force against them (for disobeying the universal
order by showing aggression towards colonialists)
- Unwilling and unable doctrine: if a state is unwilling or unable to act, it permits other states intervene supposed to be
equally applicable but rather it becomes a tool of the powerful (weaker/poorer countries have different standards)
- Jus cogens: Peremptory rules from which no derogation is permitted, (prohibitions of genocide, torture, slavery, and
aggression)
o Some rules are so important that they also exist without consensual foundations and may even bind those states that
have not accepted them (only a couple of principles are non-contested).
o Even though most norms have been violated, that still does not prevent from them being considered as peremptory
Lotus case - Nature of international law: International law governs relations between independent States
- International law is a permissive system- behavior must be considered as permitted unless it’s prohibited.
- Opinio juris is reflected not only in acts of States, but also in omissions when they are made following a be-
lief that the said State is obligated by law to refrain from acting in a particular way.
Nicaragua - ICJ had to identify whether there existed a prohibition on the use of force in customary international law.
case - What matters most is what states say they do. If they generally proclaim that the use of force is illegal, then
the occasional use of force does not affect the existing customary rule.
- Customary and treaty law take separate existence If something is codified it still can be custom
- Tricky aspect- how do you know there’s a new rule of custom?
- State behavior doesn’t need to be completely consistent with rule, just generally. Minor deviances acceptable.
- Existence of parallel obligations: interstate use of force regulated by UN Charter and customary law
North Sea - Nature of a prospective role of custom
Continental - The passage of only a short period of time doesn’t bar the formation of a new rule of customary law
Shelves - The practice by states who are specifically affected is of particular relevance
- Both state practice (objective element) and opinio juris (subjective element) are essential pre-requisites for
formation of a customary law rule
THE LAW OF TREATIES
Principles - State sovereignty: treaties need to be based on the free consent of states
- Good faith: Freedom of states is not unlimited; once consent to be bound has been expressed and treaty has
entered into force, it shall be kept by parties in good faith
Conclusion - Main ways of expressing consent to be bound by treaties: signature and ratification.
Reservations - Unilateral acts by which individual states wish to modify or exclude part of a treaty.
Interpretation - Process of interpretation can roughly be seen as having three distinct aims: (textual approach, historical
method, teleological approach)
- Interpretation of treaty as a ‘living instrument’ enhances what the treaty actually covers, and some coun-
tries are not happy with that constant enlargement of rights (especially in ECHR)
Application of - Not allowed to conclude treaties which would conflict with jus cogens norms
Treaties - Treaties have no retroactive effect, unless the treaty provides otherwise.
Treaty Revision - Revision = aptly collects various ways in which treaties may change over time.
Termination - Invalid treaty is one that has no legal effects whatsoever, a terminated treaty is one whose legal effects have
and Suspension come to an end
- Suspension is a different phenomenon, in that it does not signify the termination of a particular instrument,
but rather the temporary deactivation of a treaty’s regime
- VCLT was said to a large extent to reflect customary international law, albeit with the
addition of a few salient novelties (such as notion of jus cogens – peremptory norms
from which no derogation is permitted)
- Also important for conclusion of treaties: also domestic law (who, how can conclude a
treaty, does the parliament have to approve it)
, THE LAW OF RESPONSIBILITY
CURRENT TOPICS
- MH17 downing (Netherlands v Russia): Under which conditions can we say that Russia is responsible? What is the connec-
tion between people taking down the plane and Russia? There is a high chance that the Court will argue quoting Nicaragua
case (the rebels are not an extension of the state, yet supporting the rebels is a violation)
- Duarte Agostinho and others v Portugal and 32 other states : There aren’t many (or pretty much any) cases under in-
ternational law that hold states accountable in climate change matters
Definition - Responsibility is usually (not always) distinguished from liability and accountability.
- Responsibility- state has a moral/political obligation (responsibility to protect) (referring to obligation that
doesn’t have to be legal) (breach of obligation is key to responsibility)
Legal - States don’t have interest in giving personality to other subjects (because having one also comes with certain
personality powerful rights and dilutes the power of states in some cases)
- Responsibility only exists for entities having legal personality
Sources 1. ARSIWAThe main legal document BUT not a treaty (too many articles that they weren’t sure whether
they’re customary law and whether countries sufficiently agree on them)
2. ILC Articles on Responsibility of International Organizations
3. Customary intl law: Outside the articles but continues to apply
4. Is there lex specialis applicable? if practice deviates from ARSIWA, lex specialis rules override
Principles of Attribution - State will be held responsible for the acts of its organs and its officials, even those who act
State outside their proper competences (ultra vires)
Responsibility - Global South countries are more in favour of having higher level of state responsibility be-
cause that would allow keeping the western states accountable for their actions
- Tehran Hostages: Court argued, transformed acts of private citizens into acts of state
Intl Wrongful - Intl law doesn’t utilize system of strict liability; wrongful act is essential requirement
Act - Especially in politically sensitive world of international relations, situations may arise which
are clear violations even without causing material damage
Consequences Restitution - Restitution is main form of reparation includes cessation of the wrongful act but,
of logically, this will often also have to precede it
Responsibility Compensatio - Compensation should also cover losses of profits, but since the function of reparation is not
n to punish, international law does not generally provide for punitive damages.
Satisfaction - Idea of punishment is abandoned satisfaction shall not be humiliating
Responsible to - Obligations are typically conceptualized as being owed towards another state or a group of other states
whom? - Despite the multilateral form of the treaty, the obligations are typically seen as giving rise to bilateral
relations.
Individual - Individual responsibility responds to urge actually to punish those who commit serious crimes under
Responsibility international law, and thus almost by definition presupposes the existence of international courts and
tribunals.
Shared - States (and international organizations) are abstractions, only capable of acting through individuals, so from
Responsibility that perspective it would be sensible just to target the responsible individuals.
The - Attribution test:
Nicaragua 1) Complete dependance? Creation? Funding? (art.4) (acts of rebels would’ve been attributed to US
case if everything would be in complete control of US then acts of rebels = acts of US)
2) Effective control? (art.8)
3) Breach of own obligations of US? (art.4) ( acts of contras are not US’s problem but US must
cease all support to contras because that’s a breach of their obligations)
- Reparation: Under overall control test, even slender connection could suffice to attribute responsibility to
state for acts of others overall control test the Court deemed politically unwise
Gabcikovo- - Invoking necessity as justification implies that behaviour would be wrongful to begin with, would trigger the
Nagymoros responsibility of the state concerned, and possibly give rise to a valid claim for compensation
JURISDICTION, POWERS, AND IMMUNITIES
JURISDICTION PRINCIPLES
