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The Evolution of International
Law and Its Principles
International Society and International Law
Basic Concept of International Law
International law is the legal order that governs the relations among sovereign states and other entities/subjects that are part of the international community. It evolves according to the needs of such society. International law rules international relations, but not all international relations are ruled by international law. International law only rules relations among states and international relations, but they are not the only actors of international society.
International Legal Subjects and Actors
International legal subjects: states or international organizations International actors: international companies, non-governmental organizations (e.g., Greenpeace)
International society is where international law applies, but there is a legal system that doesn't rule all international society, only the internal relations.
Origins of International Law
The origins of international law can be traced back to at least two or more politically independent entities needing to enter into a relationship, at least to avoid destruction. The Treaty of Westphalia (1648) marked the development of the idea of sovereign and independent states. It consisted of treaties to agree on important features of their relations, such as the separation of power between state and church, and the establishment of the principles of equal sovereignty and non-interference in other states' affairs.
Principles of International Law
Equally sovereignty Immunity of states: one state cannot be submitted to the jurisdiction of another state International disputes must be settled at an international level
Sources of International Law
Sources of international law were not only treaties but also customary laws. The system of European states (1648) was characterized by homogeneity, balance of power, and coexistence between the different states, with a common acceptance of certain rules of conduct based on will/acceptance
and a minimum content (e.g., freedom of the seas, diplomatic privileges and immunities).
Evolution of the International System
The international system evolved and extended due to different aspects: - System of states of Christian tradition: all states who share the Christian tradition are admitted - Colonization: extension of European power through the colonies - Independence of British/Spanish colonies in America (1776) - Extension to non-European states - New principles and values: democracy, self-determination
Concerted Action and International Conferences
The need to establish common rules led to the practice of celebrating international conferences, where states agreed to confront some common aspects together. This included: - Colonization: new rules - Peaceful dispute settlement: war should not be the first answer but the last resort - International commissions: independent entities where the states who agreed with the rules took part - Administrative unions
Contemporary International Society
Differences between classic and contemporary international law: - War became forbidden as a method of solution - Creation of international organizations as subjects of international law - Emergence of the idea of "ius cogens" (peremptory norms) that exist beyond the will of the states
Key developments: - 1919 League of Nations: important developments after the First World War - 1945 UN Charter: creation of a new international organization to maintain peace and security between states
Contemporary International Relations
Contemporary international relations were built after the Second World War and the Hiroshima and Nagasaki bombings, with the original main aim of preventing the world from war and nuclear weapons. However, this goal was not fully achieved, as many countries developed their own nuclear weapons, and many armed conflicts have occurred since its foundation.
Unilateral Declaration of Independence
A unilateral declaration of independence does not mean much for international law. A state is a state if it has a population, territory, and sovereignty. If a new country can demonstrate sovereignty over its population and act accordingly, it is a state. However, it needs time to consolidate its sovereignty, and if not, it remains an internal issue of the main state it used to belong to.
The United Nations was envisioned as a new international organization that would go beyond the state-centric approach of the League of Nations and address the broader needs of the international community.
Purposes and Principles of the United Nations
The purposes of the United Nations, as outlined in Article 1 of the UN Charter, are: To maintain international peace and security. To develop friendly relations among nations. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character. To encourage respect for human rights and fundamental freedoms. The principles of the United Nations, as outlined in Article 2 of the UN Charter and the 1970 Declaration on Principles of International Law, include: Sovereign equality of all member states. Peaceful settlement of disputes. Prohibition of the threat or use of force in international relations. Non-intervention in the domestic affairs of member states. Duty of states to cooperate with one another. Self-determination of peoples.
Membership and Structure of the United Nations
The United Nations currently has 193 member states, with the original 51 members being the states that signed the Declaration of the United Nations in 1942. New members are admitted to the United Nations upon the recommendation of the Security Council and the approval of the General Assembly. The principal organs of the United Nations are: The General Assembly: The main deliberative and policymaking body, where all member states are represented. The Security Council: Responsible for maintaining international peace and security, with five permanent members (China, France, Russia, the United Kingdom, and the United States) and ten non-permanent members. The Economic and Social Council: Responsible for coordinating the economic, social, and related work of the United Nations and its specialized agencies. The Trusteeship Council: Responsible for overseeing the administration of trust territories, but currently inactive. The International Court of Justice: The principal judicial organ of the United Nations. The UN Secretariat: Headed by the Secretary-General, who is the chief administrative officer of the United Nations.
Challenges and Criticisms of the United Nations
The United Nations has faced criticism for its inability to effectively resolve certain international conflicts, such as the ongoing crisis in Syria. The veto power of the permanent members of the Security Council has been a source of controversy, as it can be used to block action on issues that may be important to the international community. The principle of non-intervention in the domestic affairs of member states has been challenged in cases where human rights are massively violated, leading to debates about the legitimacy of humanitarian interventions. The United Nations has also been criticized for its perceived lack of efficiency and bureaucratic inefficiencies, as well as for the unequal distribution of power and influence among its member states.
International Law and the United Nations
The United Nations and its Organs
The United Nations (UN) has created a lot of subsidiary organs to assist in the development of its functions. Some notable examples include:
Trusteeship Council
The Trusteeship Council was created to promote the colonization process in order to let territories become independent states. It stopped working in 1994 when the colonization process finished.
International Court of Justice (ICJ)
The International Court of Justice is the principal judicial organ of the United Nations. Its Statute is annexed to the UN Charter, though not all UN members are members of the ICJ.
Composition : The ICJ is composed of 15 judges who meet in The Hague, Netherlands. The judges are elected by the General Assembly and the Security Council, with the aim of ensuring a balance between the different legal systems existing in the world. The ICJ's decisions are founded in law and it has a good reputation.
Jurisdiction : The ICJ has two types of jurisdiction: contentious (when there are disputes between states, they can decide to submit these disputes to the ICJ, though states have to accept this submission and can decide whether to respect the ICJ's jurisdiction) and consultative (international organizations or organs can submit questions to the ICJ). Normally, states try to solve their disputes without going to the ICJ, as it is considered unfavorable.
Implementation and enforcement mechanisms rely on the individual action and will of states
Other features include: - More particular than general rules, as international law depends on the consent of states - More binding than peremptory norms, with ius cogens being limited - A dynamic and expansive legal system that evolves with international society
Legal Relativism and Enforcement in International Law
International law exhibits legal relativism, as the subjects that create the law (states) are the same that apply it. No rule can bind a state without its consent or acceptance. This leads to flexibility in how international law is created and applied.
Enforcement mechanisms in international law are also based on the individual action and will of states, rather than centralized enforcement. Normally, enforcement relies on reactions, with one state violating a treaty in response to another state's violation.
Current Challenges for International Law
Some current challenges for international law include: - The globalized society and big economic interests - The emergence of new actors beyond just states - Long-term problems that are no longer the responsibility of a single state, such as underdevelopment, diversity, armed conflicts, and environmental issues.
Sources of Public International Law
Substantive and Formal Sources
The sources of public international law can be divided into: 1. Substantive sources: consent and consensus 2. Formal sources: as outlined in Article 38 of the Statute of the International Court of Justice
Article 38 of the ICJ Statute
Article 38 of the ICJ Statute is often referred to as outlining the sources of international law, though it was not intended to be an exhaustive list. The article states that the ICJ shall apply:
a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) International custom, as evidence of a general practice accepted as law; c) The general principles of law recognized by civilized nations; d) Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
This article does not establish a hierarchy between the sources, but rather allows the ICJ to choose the most appropriate source for the case at hand. Paragraph (d) refers to interpretative tools, not sources of law.
Jus Cogens (Peremptory Norms)
While there is no hierarchy between the formal sources of international law, there is a hierarchy of norms, with jus cogens (peremptory norms) being superior to ordinary binding norms.
Jus cogens norms: - Are binding on all states, regardless of their consent - Can only be modified by a subsequent norm of the same character (a new peremptory norm) - Require the acquiescence of the essential components of the international community - Cannot be derogated from by agreement
Examples of jus cogens norms include the principles of equality and sovereignty of states, the prohibition of genocide, apartheid, and slavery, and norms relating to the protection of the environment.
International Customary Law
Concept of Customary Law
Customary international law is an "evidence of a general practice accepted as law", as stated in Article 38 of the ICJ Statute. It is a dynamic source of international law that evolves with the practice of states.
Two key elements are required for the formation of customary law:
Practice : This can include material actions, statements by government officials, parliamentary decisions, etc. The practice must be consistent over time, general (followed by a significant number of states), and potentially universal (obliging all states).
Accepted as law : The practice must be accompanied by a belief that such practice is required by law (opinio juris).
The state claiming the existence of a customary rule bears the burden of proof. Persistent objectors can avoid being bound by a customary rule if they have objected to it publicly during its formation.
Local or Regional Customary Rules
In addition to universal customary rules, there can also be local or regional customary rules that only apply to a specific group of states that have consistently followed the practice.
Role of Treaties
The primary aim of treaties is to produce rights and duties for the signatory states. Some treaties also aim to establish general rules of international law, codifying or developing customary law.
Relationship between Treaty and Custom
a) A treaty can be declaratory of a pre-existing custom. b) A treaty can crystallize customary law in the process of formation. c) A treaty can generate new customary law subsequent to its adoption.
Codification and Progressive Development of International
Law
Codification in international law is the process of selecting existing rules and putting them together in a single text. Treaties are more reliable than custom as a source of law, especially as international relations increase. Codification of international law is carried out by the International Law Commission, a subsidiary organ of the UN General Assembly. The ILC has two roles: codification of existing laws and progressive development of international law.
Conclusion and Reservations
Capacity to Conclude Treaties
States and international organizations can negotiate and conclude international treaties. The general rule is that the person with "full powers" can represent the state, usually the Minister of Foreign Affairs. Exceptions include the Head of State/Government and the Minister of Foreign Affairs.
Steps of the Treaty-Making Process
Negotiation: Representatives discuss until an agreement is reached. Adoption: All states agree to the treaty. Authentication: Representatives sign the final text. Expression of Consent: The state becomes a party to the treaty.
Reservations
Unilateral statements made by a state when consenting to a treaty, to exclude or modify the legal effect of certain provisions. Reservations are accepted in multilateral treaties to encourage broader participation.
Reservations must be made at the time of expressing consent and be in writing. Reservations cannot be against the purpose of the treaty.
Observance
Application
Treaties are generally applicable to the entire territory of each party. Treaties enter into force on a specific date, which may not coincide with the date of signature or ratification. Treaties do not have retroactive effect, but some provisions may apply before entry into force.
Effects on Third States
Treaties generally do not produce effects for third states (non-parties). Exceptions include treaties that declare or create customary rules of international law. The "most-favoured-nation" clause and "objective regimes" can also produce effects for third states.
Termination and Suspension
Treaties can be terminated by agreement, violation, or the emergence of a new peremptory norm. Suspension of a treaty is possible in certain circumstances, such as a fundamental change of circumstances.
Amendment and Modification
Amendment involves a general revision of the treaty, open to all parties. Modification is an agreement among a limited number of parties to change their mutual relations.
Invalidity of Treaties
Absolute invalidity (the treaty should be banished) can result from coercion or conflict with a peremptory norm. Relative invalidity (the state can decide to compensate the situation) can result from ultra vires, error, fraud, or corruption.
Interpretation of Treaties (Arts. 31-32 VC)
General Rule
Good faith Primacy of the text: ordinary meaning of the terms of the treaty
Number of states that supported the resolutions Control and follow-up
General Assembly Resolutions (UN)
GA resolutions symbol: A/session/sequential number From 1946 to 1975, the format was A/sequential number
Security Council Resolutions (UN)
The basic format for the symbols of Security Council documents is: S/ year/sequential number From 1946 to 1993, the format was S/sequential number
Unilateral Acts
Concept
Defined in the 1974 Nuclear Tests cases by the ICJ Elements: Ruled by international law Public declaration Legal effects a. Principle of good faith b. Principle of legal certainty Intention of the State to become obliged Legal act
Formal Requirements
Statement expressed by someone who has the capacity to express the will of the state Publicity
Different Types of Unilateral Acts
Acts to create new obligations (promises and recognition) Acts to confirm rights (protest) Acts to leave rights (resignation)
Effects of Unilateral Acts over Third States
Legal Personality
Criteria to Recognize International Legal Personality
Concept: Persons and entities capable of possessing international rights and duties under international law Endorsed with the capacity to take action on the international plane Main Elements:
Be the actual addressee of a right or duty established in international law a. Only international law is relevant to attribute international personality b. The true meaning of norms must be ascertained Capacity to bring international claims or be held responsible if they fail to fulfil their duties Ability to participate in the law-making process
Advisory Opinion Consequences
States are not the only subjects Subjects are not equal and do not have the same capacities The notion of subjects evolves There's a larger number of subjects of IL The legal capacity is not the same in every case
Criteria
Effectivity Recognition Historical reasons
Sea: Convention of the Law of the Sea - Articles 5, 6, 76
If two countries share the same sea, the general rule is that they have to agree, but it is normally in the middle.
States I
Statehood Depended on the Existence of 4 Elements
Territory Population Community Sovereignty
Population
A stable community of people Nationality: is made by its nationals, not the people that live in the territory of the state but the people who live in it. Internal competence of the state to decide what people can have the nationality. In order to be opposable to other states, it has to be effective. To be a state, it has to have a government, understood as the political organization that allows the state to have the competences over the territory and control the population. There's no rule in IL establishing what kind of government it has to be (federal, confederal, religious, democratic, etc.).
Effectivity: the real is the one which is effective, the one that is controlling the state. Can be made explicit (by a declaration) or implicit (establish relations with the government, send a letter). Recognition of governments is a political issue; it doesn't have legal effects in IL because it's an internal issue, and it would be interfering in the internal affairs of other states.
States II
State Immunity
Concept: states enjoy immunity from judicial and enforcement jurisdictions by the courts of other states. Because all states are equally sovereign. Basis: equality among states "par in parem non habet imperium". Limit to the territorial sovereign rights of any state.
Evolution of the Practice of States
From classic international law and international society where this immunity was absolute for any kind of acts of another state, the only possibility was that the state itself decided to renounce to that immunity. This situation has evolved to a new concept of restricted immunity, and today the general rule would be that immunity of the state is not absolute but is needed to distinguish: Acts iure imperii: acts done in the exercise of the state sovereignty. Acts iure gestionis: acts that states can also exercise but would act as any other private actor, it's not an active actor (private acts - no jurisdictional immunity). The evolution of practice makes it more and more difficult to make this distinction.
Other Issues
What is a state? Central government, national parliament, central administration, etc., are considered as the state. What happens to the other organs that for international law are not representative of the state? The general rule would be that the purpose of the act in question will classify the act as iure imperii or iure gestionis. Immunity of execution: only applies when the restrictive theory is in force or when the state has waived its immunity. The idea of immunity of states does not imply that one state cannot be sued in front of international tribunals; we are only talking about immunity to be sued in front of other states' courts (submitting one state to another state).
States III
Succession of States: Concept
In general, IL establishes the principle of continuity of international legal personality. Changes in government do not affect the international legal personality of the state. Sometimes changes cannot be prevented, and the international legal system has to give solutions, in these cases is when we talk about state succession.
Succession of States in International Law
Transfer of Territory and Territorial Modifications
When an international legal subject replaces another in the responsibility for international relations of a territory, it is known as the succession of states. This raises the question of how the succession of the rights and duties of one state is governed by international law when there is a territorial modification.
The succession of states implies the transferral of a territory from a predecessor state to another state. However, there are no general rules dealing with this aspect because the practice has been very heterogeneous. The rules applying to these cases depend on the specific situation.
Factual Situations of State Succession
International law has to deal with the consequences of the following factual situations that raise the question of succession of states:
Transfer of Territory : A part of the territory of a state is transferred to the territory of another state (e.g., the transfer of Alaska to the EU). Unification : Two states decide to create a new state. Separation : One part of the territory of a state becomes independent, and the previous state disappears, splitting into several new states (e.g., the dissolution of Yugoslavia). Newly Independent States : States that become independent because they were previously subjected to a colonial power (decolonization).
These situations are not recognized as rights by international law, but it has to deal with their consequences. In the case of newly independent states, international law has a general principle of granting them the right to self- determination.
Treaties
The reception and rank of treaties is not explicitly mentioned in the text.
Publicity and Transformation of International
Law
Publicity
The text does not provide any information about the publicity of international law.
Transformation
The text does not provide any information about the transformation of international law.
Promotion of International Law
The Implementation of International Obligations in a Non-
Coercive Way
Mechanisms are created to help states respect their international obligations. These mechanisms have a diplomatic, non-jurisdictional function. They are based on consent and are usually institutionalized.
Possibility of Giving Technical Assistance to the State
States can receive technical assistance to help them fulfill their international obligations.
Follow-up Mechanisms
There are mechanisms that require states to report on the measures they are adopting to fulfill their international treaty obligations.
Control Mechanisms
Control mechanisms consist of organs that monitor whether states are following their obligations.
International Responsibility of States
General Principle
States usually comply with international law spontaneously, but if they violate it, they incur international responsibility. International responsibility means there is an international wrongful act, and the state that violates international law has a duty to repair the damages caused by the violation.
Classic Construction of the Theory of International
Responsibility
International responsibility can arise from two situations: Violation of international law by a state. Objective responsibility, which can occur when a state's conduct is very dangerous and causes damage to another international subject, even without a violation of international law. International responsibility generates new legal relations, generally bilateral between the affected state and the violating state, except if the violation is of a peremptory norm, which affects the entire international community.
Codification of the Law of International Responsibility
The need to codify the rules of international responsibility has been a sensitive issue. Projects for codification include: The League of Nations' failed attempt in 1930. The International Law Commission (ILC) taking up the subject in 1949. The ILC's approval of the "Responsibility of States for Internationally Wrongful Acts" in 2001.
International Wrongful Act: Concept
A wrongful act occurs when an act attributable to a state constitutes a breach of an international obligation of that state. Wrongful acts can be committed by action or omission (non-action). The wrongful act is independent of internal law.
Objective Element
A breach of an international obligation occurs when a state's conduct is not in conformity with what is required by that obligation, regardless of the obligation's origin or character. The obligation must be in force at the time the conduct takes place. A single act may not be enough to violate an obligation, but may require several actions (e.g., genocide).
