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International Law - Martin Dixon, Skripte von Internationales Recht

Humboldt-Universität zu BerlinInternationales Recht

Notes Martin Dixon Handbook IL

Art: Skripte

2018/2019

Hochgeladen am 21.11.2019

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CHAPTER(1.(THE(NATURE(OF(INTERNATIONAL(
LAW(AND(THE(INTERNATIONAL(SYSTEM.
!
!
!
Comprises!a!system&of&rules&and&principles!that!govern!the&international&
relations& between& sovereign& states& and& other& institutional& subjects& of&
IL!such!as!the!UN,!the!Arab!League!&!the!African!Union!
!
!
It!exists!because:!its!is!PRACTICED!(foreign!offices)!+!it!is!OBEYED!(most!
of!the!times)!+!it!is!OBLIGATORY!(binding!rules)!+!it!REGULATES!(able!to!
resolve!issues!of!facts!and!law).!
IL!is!not!“true”!law! because!it!is! not!generally!enforceable.! However!there!
are!a!few!ways!to!enforce:!with( the( security( council!(under( art39( and(
chapter( 7( of( UN( charter),!whose! role! is!to! preserve!peace!rather! than!
enforce! the! law.! It! still! can! impose! military,! economic! or! diplomatic!
sanctions!if! there! exist! a!threat!to!international!peace! and! security.!There!
exist! political!and! legal!limitations!when! the! big! five! interests!are! at!
stake!or!one!of!them!uses!its!veto(power.!!
Another!method! is! the! judicial!enforcement!of!IL! through! the! existence!
of!AD!HOC!TRIBUNALS,( THE( ICJ( AND( THE( ICC.!It!must! be! remembered!
that! the! ICJ! is! not!compulsory!if! states! want! to! resolve! their! legal!
disputes.!(other!ways,!arbitration,!mediation!etc)!but!if!it!is!referenced!to!
the!ICJ,!the!award(is(binding(on(both(parties.!
States!can!lose!their!legal!rights!and!privileges!if!they!do!not!respect!IL.!
The! reasons!for! the! effectiveness!of! IL! are! various:! first!its! respect!
obviously!stems!from!the!common( good( and( common( self( interest.!Il!is!
based! on! common! self-interest! and! necessity!to! ensure( a( stable( and(
orderly( society.! It! provides! regulations!of! global! issues! in! an!
interdependent!world.!Second!it!is!like!a!psychological(Rubicon,!a!river!
if! you! shall! cross! might! result! in! destructive! results.! Third! the!
practitioners!are! obedient!as! they! are! often! educated! in! their! national!
law.!Fourth,! IL! is!effective!because!it!is! also! flexible!(which! can!also!be!a!
problem).! Fifth,! the! political( cost!of! the! non-respect! of! IL! is! great.!
Sanctions!ensure! that! rules! are! obeyed! which! is! one! more! motive! for!
compliance.!
Because! the! development! of! a! system! depends!on! the! political!will!of!
sovereign! states,! it! can! result! in!Development!of! customary!rules! in! IL.!
However!there! are! four!main!weaknesses:!the! first!is! the!obvious!lack( of(
institutions( and( the( inexistence(of( a( formal( legislative( body.!Such! an!
absence! can! result! in! some! conflicts! stretching! over! time,! like! India! and!
Pakistan!conflict! over! Jammu-Kashmir.! The! second!weakness! is! the!lack(
of(certainty( and( clear(rules.!Thirdly!the!vital! and! political( interests( of(
states( will( always( prevail!over! the! dictate! of! the! law.! Fourth,! it! may!
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CHAPTER 1. THE NATURE OF INTERNATIONAL

LAW AND THE INTERNATIONAL SYSTEM.

Comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of IL such as the UN, the Arab League & the African Union It exists because: its is PRACTICED (foreign offices) + it is OBEYED (most of the times) + it is OBLIGATORY (binding rules) + it REGULATES (able to resolve issues of facts and law). IL is not “true” law because it is not generally enforceable. However there are a few ways to enforce: with the security council ( under art39 and chapter 7 of UN charter ), whose role is to preserve peace rather than enforce the law. It still can impose military, economic or diplomatic sanctions if there exist a threat to international peace and security. There exist political and legal limitations when the big five interests are at stake or one of them uses its veto power. Another method is the judicial enforcement of IL through the existence of AD HOC TRIBUNALS, THE ICJ AND THE ICC. It must be remembered that the ICJ is not compulsory if states want to resolve their legal disputes. (other ways, arbitration, mediation etc) but if it is referenced to the ICJ, the award is binding on both parties. States can lose their legal rights and privileges if they do not respect IL. The reasons for the effectiveness of IL are various: first its respect obviously stems from the common good and common self interest. Il is based on common self-interest and necessity to ensure a stable and orderly society. It provides regulations of global issues in an interdependent world. Second it is like a psychological Rubicon , a river if you shall cross might result in destructive results. Third the practitioners are obedient as they are often educated in their national law. Fourth , IL is effective because it is also flexible (which can also be a problem). Fifth , the political cost of the non-respect of IL is great. Sanctions ensure that rules are obeyed which is one more motive for compliance. Because the development of a system depends on the political will of sovereign states, it can result in Development of customary rules in IL. However there are four main weaknesses: the first is the obvious lack of institutions and the inexistence of a formal legislative body. Such an absence can result in some conflicts stretching over time, like India and Pakistan conflict over Jammu-Kashmir. The second weakness is the lack of certainty and clear rules. Thirdly the vital and political interests of states will always prevail over the dictate of the law. Fourth, it may

prove difficult to enforce on an international level as the risks of conflict become higher. We could say the main aim is not to resolve diplomatic problems but to ensure order and predictability. Where does IL comes from? What are the juridical basis or basic theories that could help us understand its origins? In its command theory dating back to the 18th^ Century, John Austin , a legal philosopher, assumed that Positive Law consists of a collection of orders that are backed by threats which are emanating from a sovereign. However we should remember that this theory is moot in IL because states are legal equals and one is not sovereign over the other. The consensual theory stipulates that no law can exist without the consent of states. In natural law , which we can find in the application of rules of jus cogens, war crimes and human rights, there exists an ideal system of law based on human reason and moral principles. Finally we could say the IL is UBI SOCIETAS, IBI JUS, which means that because IL is necessary , needed and recognized , IL is EX HYPOTHESI binding (it lies in practical necessity). Thus the first and most powerful reason why IL is to be regarded as a system of law is that it is recognized as such by the persons whom it controls, the states and other subjects of law. In the future the role of the ICC will expand and the scope of IL will embrace non state entities. Furthermore the role of International environmental law and international communication will gradually takes even more importance. The UN calling for the abolition of veto/or more members will change the power politics. Some argue that regionalization will replace universalism.

CHAPTER 2. THE SOURCES OF INTERNATIONAL

LAW

For example customary law is a formal source of law because it describes how rules become legally binding. On the other hand state practice is a material source of custom because describes the way in which the substance of customary rules is identified. Diplomatic correspondence comprises the evidence of state practice Art 38 of the ICJ is the traditional starting point of the sources of IL. This article provides a list of sources of IL for which the court can rule on and it focuses on state activity and practices. Sources can be formal , material or evidentiary. What is the difference? A formal source of law is concerned with the process by which a legal rule comes into existence, how it takes form , and it is different than an obligation. It highlights the procedures and methods by which rules become legally binding. A material source of law concerns the materiality of the legal obligations,

treaties between states and is governed by international law. As we will see the VC has some similarities with customary law. For example ART 3 & 4 states that the VC preserves customary law, in ART 43 it says that VC is part of customary law. Below are the codifications of customary law in the VC: ♣ Fundamental change of circumstances (Art. 62) ♣ Material breach (Art. 60) ♣ Supervening impossibility (Art. 61) ♣ Rules to capacity (Art. 6) ♣ Effect of unauthorized agreement by a representative (Art. 8) ♣ Observance of treaties (Art. 26) ♣ Relationship with national law (Art. 27) According to the VC every state has the authority to conclude a treaty. However if the states have signed a treaty but not ratified it, then they are not bound by it, however in the meantime they should not commit actions that are contrary to the treaty. The fundamental rule of the VC is pacta sunt servanda (ART 26). National law cannot be invoked as a reason for failure to perform a treaty obligation ( ART27). There are reservations in multilateral treaties which are intended to modify or exclude binding obligations, if they are not forbidden by the treaty itself. Those reservations are unilateral and do not have to be accepted by the other parties. In the travaux preparatoires (art 32) there are records of the negotiations as a supplementary mean for interpretation. Under Art 55 a state can withdraw from a treaty and under art 62, Rebus sic stantibus, which means there are fundamental changes of circumstances.

CHAPTER 4. INTERNATIONAL LAW AND

NATIONAL LAW

As we have seen IL is concerned with legal relations between states and national law is concerned with the relations between individuals within a state, in that sense the two systems overlap. Sometimes IL can be used in national courts but the way it is used greatly depends on the national law of the country.

Two main theories can explain the relationship between IL and NL: Monism and Dualism : these two theories are theories of conflict. Monism stipulates that IL and NL are part of a same system and are concerned with the same subject matter. In that sense IL will always prevail over NL such as in Hans Kelsen’s Monism Positivism that stems from his Theory of the Basic Norm. This theory agrees that IL is born out of the practices of states. Another is Hersch Lauterpacht: he thinks that individual rights is the aim of all law (“ The individual human being is the source of all law” ) and that IL is the guarantor of individual human rights. Monism Naturalism stems from natural law theory and puts IL in between the law of nature (moral) and national law. On the other hand, Dualism supposes that IL and NL do not exist in the same sphere of influence (but still same subject matter). In that case, IL right might not be enforceable under National Law if it is contrary to NL. Something unlawful in IL can be lawful under NL and thus cannot be enforced in national courts. (Jones v Saudi Arabia) A theory of coordination can be found in Fitzmaurice and Anzilotti : they believe that IL and NL do not operate in the same sphere of influence and are not concerned with the same subject matter, and are thus independent of each other. In art 38(1)( c ) (d) ICJ STATUTE : national law still has international obligations. National law cannot be a reason to actively violate IL nor invoking NL is a reason to not perform a treaty. If a change in NL is necessary for a state to perform its IL obligations it must do so : it is a matter of international responsibility. In which cases can National Law be used in an international court? A national rule can be used as a source of law (limited liability), as an evidence of compliance with international obligations (Texaco v Libya), to define concepts used in international law (Nottebohm Case 1995), as evidence (passive personality principle), as a component in the decision of a tribunal (Serbian Loan Case). NL in IL as a : Component (Serbia); evidence; define (nottebohm case); compliance (Texaco v Libya); source (limited liability) Which theories exist concerning the incorporation of an international law into the national system of law? There is the doctrine of INCORPORATION , the doctrine of TRANSFORMATION or the doctrine of IMPLEMENTATION. Each doctrine adopted by the state is found in its constitution. In the doctrine of incorporation , the rule of IL is supposed to be incorporated into nl without adoption by national courts. On the contrary the doctrine of transformation s uggests that the rule of IL cannot be part of Nl without being adopted. A good example of this is the international rule of diplomatic privilege. Under incorporation doctrine, a diplomat is automatically allowed to plead diplomatic immunity before national courts, but under the transformation doctrince the diplomat is subject to the jurisdiction of the national court.

authorities and influenced by political, economic and legal

considerations (western sahara case). Such decision can take the form of

formal pronouncement + official letter to the newly organized entity +

statement before a national court + opening of full diplomatic relations.

Two theories explain the act of recognition: the DECLARATORY THEORY

and the CONSTITUTIVE THEORY. According to the declaratory theory,

when an existing state ‘recognizes’ a new state, this is said to be nothing more than an acknowledgement of pre-existing legal capacity. The act of recognition is not decisive of the new entity’s claim to statehood, because that status is conferred by operation of international law. In the constitutive theory, denies that international personality is conferred by operation of international law. The act of recognition is seen as a necessary precondition to the existence of the capacities of statehood. This theory seems to be more in accord with international practice. What is Positivism? – The most important base of law today. This is man- made law – there is no higher law, and the law and ethics are separates, there is a formal procedure, and if you follow it, then a rule is seen as a rule of law and it doesn’t matter if it is just or fair or not. States are in the centre of positivism In the UK a request has to be made at the court of the Foreign Office to be recognized as a state.

& Matter of recognition bound up with international personality.

§ Recognition of statehood may enhance the exercise of the

capacities of statehood but rarely determine its existence.

§ Important to recognize the existence of other types of legal

persons.

§ On the national level can determine the capacity of the state to act

within a certain national legal system.

§ In UK, non recognition can bar a state from exercising rights and

duties in UK courts.

§ It is used as a leverage to encourage emerging states to conform

with certain regional values.

CHAPTER 6. JURISDICTION & SOVEREIGNTY

Jurisdiction is the nature & extent of a state’s authority over territory ,

persons & aircraft. The state possess different types of jurisdiction, the

jurisdiction to enforce and to prescribe (cf the Lotus Case).

Prescriptive jurisdiction is the power to claim jurisdiction over any matter

: is the power of a state to bring any matter within the cognizance of its

national law, like in the lotus case, the broadcasting act 1990 or Joyce v

DPP. However, it is curtailed by the 1

st

principle in the Lotus Case; the

jurisdiction to enforce. A state may assert, by its national law, a

jurisdiction that is unlimited. But the enforcement of this jurisdiction has

to be done on its own territory and cannot be exercised on the territory

of another state. Unless there is an agreement. Jurisdiction of a state

within its own territory is complete and absolute. It is the basic attribute

of sovereignty and it is confirmed in Art 2.7 of the UN charter. However

public vessels of other states and diplomatic immunity has to be

respected. To sum up: Prescriptive jurisdiction: a state has authority

under IL to apply its NL to matters arising within & outside its territory,

irrespective of the nationality of the object of that jurisdiction Prescriptive

jurisdiction is curtailed by the fact that the enforcement of jurisdiction

may only take place in a state’s own territory unless agreement. Thus, A

state has absolute and exclusive power of enforcement within its own

territory, unless that power is curtailed by rules of IL (immunity from

jurisdiction). Unless the contrary is indicated, the state’s enforcement

powers are the same whether the matters originated in criminal or civil

proceedings. There are 5 principles of jurisdictions over persons :

Territoriality, nationality, universality (nature of the offence), the

protective jurisdiction, and finally passive personality jurisdiction.

A state has jurisdiction over all matters arising in its territory. But if there

are doubts in regards to the exact location of the even we can use or the

objective territoriality approach or the subjective one. Objective is when a

state has jurisdiction over offences that are completed in its territory,

even though some elements took place abroad(lotus case). Subjective

territoriality when a state has jurisdiction over all offences and matters

commencing in its territory, even if some elements (or the completion of

the offence) takes place in another state (like in the terrorism act f 2000).

In terms of Universal jurisdiction we have to consider, Crimes against

humanity, genocide, torture, piracy, war crimes, hostage-taking and

hijacking