Various branches of international law - Summary
Table of content
General introduction to various branches of international law ........................................................... 2
International human rights law.............................................................................................................. 3
International humanitarian law ............................................................................................................. 8
Lecture 4 – General observations ....................................................................................................... 8
Seminar 3 – Accountability and applicability sources IHL ................................................................... 8
Lecture 5 – Leading principles, implementation and enforcement of IHL ........................................ 10
Seminar 4 – Actors and weapons ...................................................................................................... 11
International criminal law .................................................................................................................... 13
General information .......................................................................................................................... 13
The core crimes ................................................................................................................................. 16
Joint criminal enterprise.................................................................................................................... 17
Co-perpetration ................................................................................................................................. 17
International economic law ................................................................................................................. 18
International trade law...................................................................................................................... 18
International investment law ............................................................................................................ 20
International environmental law ......................................................................................................... 23
1
,General introduction to various branches of international law
• Public international law has a decentralised, horizontal character; there is no central
authority.
• Key actors are states. They enjoy full legal personality. Supporting actors: individuals,
multinationals, international organisations, non-governmental organisations.
• People continue to question the status of public international law as law. However, the
majority of states cares about public international law nowadays.
• Article 38 ICJ Statute gives the sources which the ICJ should apply. It has a broader ambit
nowadays. Key sources of international law today: treaties, customary law, general principles
of law. Other possible sources:
o Judicial decisions – ICJ refers back to earlier judgements, but no binding force.
o Decisions of IO’s – GA resolutions are not binding, UN SC resolutions are binding.
o Unilateral acts – No source, because normally multiple parties would need to agree
before a rule of international law can arise.
o Equity – Reasonableness, just an instrument, no proper source.
o Soft law – Not officially binding. Voluntary adherence.
• Hierarchy of norms:
o 1) There is no formal hierarchy between the sources of international law. All have to
be considered of equal weight.
o 2) However: relative normativity → Ius cogens norms cannot be overridden in any
particular way; no derogation is possible. Erga omnes norms are norms that anyone
on the planet may potentially invoke.
o 3) Furthermore: treaties can qualify their provisions as superior or non-derogable.
o 4) In case of conflict: lex specialis (special law over general law) and lex posterior
(newer rule over older rule).
2
,International human rights law
• Two main categories: civil and political rights + economic, social and cultural rights
o Civil and political = individual freedoms that guarantee protection from the state;
allow you to take part in society (freedom of speech, right to life)
o Economic, social and cultural = protect your social life (right to housing, right to
development, right to health) – Difficult to guarantee
• International law (general): governs the relations between states, basis is state sovereignty
(states can decide what they do and don’t), purpose is peaceful co-existence
• International human rights law: governs the relations between states and individuals, there is
a limitation to what states can do, friction because of different interpretations of norms
• Duty bearers under IHRL:
o State – has obligations/duties
o Not: IO, non-state actors, individuals (they didn’t sign the treaties)
• Rights holders under IHL:
o Individuals – have certain rights
o Discussion: groups (you could say it is called human rights for a reason or you could
say that some rights you can only enjoy as a group, like the right to development)
• Nature of the obligations – three types of obligations:
o Respect = negative obligation to not interfere with human rights
o Protect = obligation to protect individuals from third parties that interfere with your
human rights (indirect horizontal effect)
o Fulfil = actively, effectively ensure a right to everyone; do everything in their power
to give everyone access to a house for instance
• Sources of IHRL:
o Customary law – Universal Declaration of Human Rights (not binding, no supervisory
body, often customary law)
▪ Usus = custom, state is adhering to a certain right for a long time
▪ Opinio juris = recognition, belief that a certain norm is binding
o Treaties – ICESCR, Convention against torture
o General principles of law – When it is recognised by nations as binding, such as the
principle of proportionality; they exist in almost every domestic legal system
• Ius cogens norms → Prohibition of torture and prohibition of genocide. No derogation
permitted.
• ICCPR versus ICESCR
o ICCPR – Capitalists. Individual freedom was the most important. Supervisory body
was created. No action needed.
o ICESCR – Communists. No supervisory body was created in the beginning (there is
one now), so these rights were marginalised. Action is needed.
• Justiciability (liable to trial in court) → Are ICESCR rights justiciable?
o No, because:
▪ Nature of the rights (action is needed); you can’t invoke those rights. Very
complex and difficult to achieve for a state, in which the government has
discretion. Judges would be interfering with the government.
▪ Lack of knowledge within the judiciary.
▪ The rights are too vague for a judge to decide upon it.
▪ States need to take steps (progressively)
3
, o Yes, because:
▪ Civil and political rights are also complex and they also require action from
the state, such as active protection from torture
▪ Civil and political rights can also be vague
▪ Judges also need to know the content of civil and political rights
• General Comments are authoritative guides that provide substantive guidance, in general or
on specific provisions of a treaty
• General Comment 3 is about article 2 ICESCR → Obligations with regard to ESC rights:
o Progressive realisation – Obligation to take steps. You cannot take steps back
(principle of non-retrogression). States must always take their maximum effort.
o Immediate effect – Even though you cannot guarantee everything at once, you
cannot discriminate, some rights don’t require steps and therefore apply
immediately or a particular step has immediate effect (for instance to adopt a
housing strategy).
▪ Certain rights → Non-discrimination, 2(2) ICESCR
▪ Aspects of rights → Undertaking to ‘take steps’, 2(1) ICESCR
o ‘minimum core’ concept – Essential part of specific ESC rights always apply, such as
having basic shelter.
• General Comment 14 is about right to health. Strategy and plan need to be adopted.
Minimum core obligation: you need to ensure right of access to health facilities.
• Monitoring at the UN level is done via two routes:
o Human Rights Council
▪ Predecessor: Human Rights Commission
▪ Main task: adopting resolutions, denouncing certain practices or declaring
what should be done to implement human rights
▪ 47 UN member states are part of the HRC, elected for 3 years, maximum of 2
consecutive terms (6 years in total), membership divided among UN region
(they all have a number of allocated seats), elected by UN GA
• No criteria with regard to becoming a member to the HRC
• Also countries with bad track record of respecting human rights
▪ Reports back to the UN GA
▪ HRC serves as a forum for dialogue, can make recommendations on
development of international law and promotes implementation of
obligations (such as implementation after ratification)
▪ HRC works with resolutions or special procedures
• Special procedure → Special rapporteur is appointed. Independent,
much expertise, voluntary. Can go on fact-finding visits, draft
reports, send communication to a state, intervene in legal cases,
conduct studies.
▪ Universal Periodic Review = peer review mechanism. State drafts a report on
its human rights situation every four years and information from the UN
about that state is compiled → States give feedback on each other.
o Treaty bodies
▪ 10-25 individuals (experts on a specific topic)
▪ Nominated by states in an individual capacity
▪ Elected for 4 years, maximum of 2 consecutive terms (8 years in total)
▪ None of the outcomes are legally binding, but a lot of authority
4
