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International law
Taught by: Professor M.I. Papa
Professor M. Gervasi
Source material: International Law, Carlo Focarelli
Index
Sources of International Law and identifying International Law ............................................................ 2
General International Law and codification of International Law .......................................................... 4
Treaties .................................................................................................................................................... 6
International Legal Personality (ILP) of States and Succession of States .............................................. 17
Law of the Sea Convention .................................................................................................................... 20
International legal personality: persons and insurrections................................................................... 22
ILP and International Human Rights laws ............................................................................................. 25
Concerning the Use of Force ................................................................................................................. 28
Collective security system and the Use of Force ................................................................................... 31
ARSIWA .................................................................................................................................................. 34
Shortlist Latin......................................................................................................................................... 45
List of case law....................................................................................................................................... 46
Sources of International Law and identifying International Law
Lesson 1&2 (by Professor Gervasi)
Article 38 of the International Court of Justice, Statute of International Law is a reference point because there is no International constitution. It points the court towards how it and where it can function. It is however ill worded and not without controversy. A, B and C are one category, D is an another
- A: Treaties
- B: Customary International Law as evidence of a general practice accepted as law;
- C: Principles of International Law (recognized civilized nations)
- D: judicial decisions and legal scholarship
Customary international law is binding on all states while states are only bound by a treaty if they signed it. Customary law however is often the basis for treaties.
There was a predecessor to the ICJ (the Hague), instituted after WWI. Art. 38 wording is old, based in 1920.
A is about treaties and agreements. General or particular is about distinguishing bilateral and multilateral. Treaties only apply to the parties who signed so they are an example of ‘particular’.
D mentions international Case Law and scholars. D also makes mention of Art. 59 which states that the decision is only binding between parties and in respect to that case. So International courts do not deliver jurisprudence.
Lesson 3
Is about Art. 38.1 sub b.
Customary international law is unwritten, created by generality of states but it is binding on all states. These are three features that DEFINE international law. Customary law is often the basis of international law. It does not require signature of a state but it is binding anyway.
To identify customary international law, one must know how it was formed. We draw a dividing line between two main positions. One hand has the traditional theory, on the other hand there is a modern approach to customary international law.
Classic or traditional approach has two elements, practice (usus/ diurnitas) and psychologically element or acceptance of the law ( opinio juris ). Dualistic approach to international law. This approach is supported by the language used in Art. 38. There is widespread acceptance of this approach.
Modern approach has mostly one element, the psychologically element or acceptance of the law as rule (opinio juris).
Examples of two element approach (traditional)
1969 North sea continental shelf Judgement. The International Court of Justice (ICJ) defined customary international law. Then they defined how one should approach customary law.
1986, Nicaragua case. About the use of force in and against Nicaragua, was about the use of force and ICJ used the traditional approach and confirmed it. 1974, Nuclear Tests Judgement, Court
order for Customary Law to evolve, it is necessary to breach that customary law. So how is it possible for a state to embrace laws that are new to their behaviour as behaviour.
The answer to this logical questioning. Opinio juris Ac necessititatis. The need for a certain behaviour is required by law or social need, outweighs this logic. So because a law is needed, opinio juris can be justified. ANSWER.
A sense of necessity becomes a sense of law. But one needs to look at the entire framework. Behaviour and opinio juris must be looked at over a period of time. The formation of customary law is a spontaneous process that evolves over time. ANSWER.
There might be other answers as well: There is a process of instrumentalization of opinio juris. The process of normalisation and liberation and codification started after the second world war. Countries declared independence and on the basis of these declarations opinio juris can be applied. The right to clean water was one of these things that then were put in these declarations. But not all states did put it in, so we cannot just rely on these declarations and thus, opinio juris. Our last problem concerning customary international law. General application, to whom does customary international law apply. We answered this question, it applies to all states.
Two problems with this:
Persistent objector doctrine. Classical conception of, if one state objects to the formation of customary law, we may say that that state is not bound by that customary law. This doctrine is not accepted by all scholars and they resist certain elements. If a certain state clearly stated that he objected to the law before it existed and started to form, they should be excepted. An example, like Iran who was against Nuclear Proliferation since the 70s, objected to it from the start.
Particular customary international law. It’s the counterpart of general customary international law. Particular means it does not apply to all states but it only applies to a small group of states. Two main instances of particular law, it may be geographic, or it may be customary through amending or modifying a treaty.
Geographic, two subcategories. Local (bilateral) customary rules and regional (multilateral) rules. Local applies to two states only, regional is relevant to an entire region of the world.
Example of customary through amending or modifying: Art. 27 paragraph 3, UN charter. It happened that a permanent member was absent from a vote, but in this case they were still bound by resolutions. Example, USSR abstained from voting during the Korea crisis. This only works if there is an agreement. This is an instance of particular customary international law. European convention of human rights relies on consensus as well. Art 8 of this convention. It states everyone has a right to private family life, but it does not clearly state gay marriage is legal.
General International Law and codification of International Law
Lesson 5
General international law is found again in the Statute of the ICJ, art. 38 par 1C. Two categories of special customary rules.
Jus cogens rules, special form of law , non-derogatory. What is jus cogens, it represent our customary rules, distinguishing feature is that they cannot be derogated from. 1969 Vienna Convention on the Law of Treaties (VCLT) established jus cogens.
(A peremptory norm (also called jus cogens or ius cogens /ˌdʒʌs ˈkoʊdʒɛnz, ˌjʌs/; Latin for "compelling law") is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.)
Examples are, use of torture or holding slaves.
Obligations Erga Omnes. It means towards all states. States that have obligations that are held to the international community as a whole. In the event of a breach, each state may react to this breach. Obligations erg omnes partes , means the same but to all states bound by a treaty.
Example that has been given is that with traditional customary law, human rights violations are an internal matter and cannot be acted upon. With modern customary law, states can.
Three main problems with general principles of law. The nature, the function, the definition.
The problem with the definition started with the inclusion of civilized nations. It was put in because then it could apply to states. Before there was no way. Before it relied on legal conscience and states could get away on natural law. Lord Philmore said that this principle may be interpreted with acceptance of nations with legal systems.
Two general principles. General principles from domestic legal orders. People apply them to solve a case by using judges. And general principles derived from international law.
Lesson 6
Codification of International Law
It rests on treaties. Codification of international law consists of transposition of general international law, which is unwritten, into treaties. In order to understand this, one must keep in mind general international law is UNWRITTEN. If they are written, codification comes into consideration.
- Why do we codify? Because it is unwritten and thus uncertain which constitutes the use for codifying. Customary international law and general principles of law.
- Who does the codifying? It is possible to be done by both private and public entities.
Institute of International Law, French organisation, is a private entity. International Law Association is another. Scholars are also considered private in this case of codification.
Public entities are states for example. The most prominent public entity being International Law commission, made by the General Assembly of the UN. Its purpose is promoting codification of customary law. Art. 13 of the UN Charter covers this. This article states that the assembly was itself tasked with doing this. It may be difficult for the assembly doing this because they represent too many countries, that’s why the law commission was brought into the world. The international law commission is not comprised of states but of individuals, 34 members. They are independent members chosen on competence and not their loyalty to a country. They represent the main legal systems.
Pros : Its easier for individuals to reach an agreement. They do not represent interests of states.
Cons : Its downside is that they cannot agree on behave of states on treaties. So they can only work and draft articles but not sign. Therefore treaties still need to represent interests of states so they will sign.
A prominent example of this: the draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) elaborated by the international law commission in 2001, are not a treaty
“Erga omnes partes”
Means ‘towards all parties’
How can we define a treaty? It’s the merger of the wills of states. If it’s the merger of the will of two states, it’s a bilateral treaty, if its three or more it’s a multilateral treaty. The distinction is important when we talk about states adopting the treaty. This treaty has legally binding effects only on the parties to the treaty. It’s the most important distinction between customary law and treaties. The basis for this effect of course being the consent of the states to treaties. The basis for the treaties usually lie in a customary law states have in common. ‘Treaties must be obeyed’ is such a customary law. Treaties are the main source because they are written and can be derogated from. Unwritten law such as customary law cannot be derogated from, ‘jus cogens’ principle.
In traditional international law, treaties just create mutually binding obligations. There has been a codification process regarding treaties. General international law providing the background for codification instruments and codifying treaties. The 1969 Vienna convention.
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
1978, Vienna convention on the succession of states with respect to treaties. 1983, Vienna convention on the succession of states with respect to property, archives. 1986 Vienna convention on the law of treaties, between states and international organizations or between international organizations. These are important treaties.
You have to know the Sources of International Law on Exams! Also the CONCLUSION of treaties
The conclusion of treaties. Freedom of form for states, they can choose written or unwritten and other things. That being said, there are two main processes which are reflected in the 1969 VCLT. One hand, solemn form of conclusion of treaties and the simplified form of conclusion of treaties. States can use either or another and they are both codified in the 1969 Vienna.
Solemn (4 stages)
- Negotiation
- Signatory
- Ratification or accession
- Exchange or deposit of ratification instruments
Simpified: It exists to speed up and make more efficient the process of making a treaty. Only consists of TWO stages. Negotiation and Signatory. Basically the first two stages of Solemn.
Negotiation is the same for both processes. It’s the discussion of diplomatic parties of states on subject matter and ends with the adoption of the text of the treaty. Who is competent to represent a state? The representative is the person who has full powers (Vienna 1969) he is entitled to represent the interests of a state. Art. 2.1C states the representative needs a document specifying this. There are certain state organs that don’t need to produce full powers. Like heads of states or ministers of foreign affairs. Representative can only represent as far as regards the relationships between states. And the states to which this has been accredited. Representative of Italian nation in Libya is entitled to represent Italy but only in the relationship between Libya and Italy and not between Italy and Egypt in Libya for example.
Negotiation ends with the adoption of the text of the treaty. Two third of the states attending need to vote in favour in order for this to happen. Unanimity means everyone in favour, consensus means majority.
Signatory stage. The way how this is handled will determine difference between solemn and simplified. Solemn form, signatory has one main purpose, a full stop is done on the text of the treaty. The states sign the text of the treaty and it cannot be modified any longer unless new negotiations start. So signing it means no longer modifying the text and agreeing with the contents. Authenticating the text. Article 18 of Vienna 1969, the state signing the treaty is under the obligation of not violating the text of that treaty, unless it clearly states it will not ratify this treaty. A state cannot defeat the objective and purpose of that treaty unless it expresses clearly it will never ratify the treaty. In the simplified form, signatory expresses implies the consent of the state to be bound by the treaty, not just agree to the text.
Ratification or accession. This manifestation of the willingness of the states to be bound by the treaty. A state ratifying is a state has participated in the negotiation of the treaty, if a state ACCEDES to a treaty, he has not participated to negotiating the treaty.
Exchange or deposit of instruments of ratification or accession. The merger of the will of two states is realized in this way. Exchange signifies bilateral treaties. Deposit regards multilateral treaties. Either a state or an organization acts as a depository to the deposits of instruments of ratification or accession. So the secretary general of the UN for example, acts as a depository of hundreds of treaties.
With the adoption of treaties, registration is not necessary. Art. 102 of the UN charter, there is an obligation of states to the UN.
Lesson 8
Reservations to Treaties.
The definition: (EXAM) a unilateral statement aimed at excluding, modifying or accept with a specific meaning certain provisions of the treaty. Under Art. 2.D Vienna Convention 1969
What is the purpose of reservations? The problem with reservations is that there are two conflicting interests at stake. On the one hand there is the integrity of the treaty, (it should be accepted as it is without change) on the other hand there is an interest in the universality in the participation in the treaty. So in order to reach universal participation sometimes it’s necessary to allow reservations. Reservations give an instrumental flexibility to treaties. Only works for multilateral treaties.
Not all multilateral treaties allow reservations. Sometimes the integrity of the interests of the treaty must be protected. Reservations are fairly common within Human Rights treaties.
A reservation is a reservation however phrased or named. Regardless of a state calling a unilateral statement, declaration or whatever expression he uses, if it is aimed at modifying the treaty, it is a reservation. Example: interpretative declarations, declarations that say how to interpret certain declarations. In order to distinguish whether a declaration is a reservation or not, we have to look at the state’s willingness to participate in the treaty. Usually a state that did not put forward a reservation, it will not participate in negotiating the treaty. If it did put forward a reservation, it can participate because it made its reservation known.
In the absence of a provision permitting reservations, it was impossible for states to participate in that treaty. Especially within Human rights issues, there was a need for reservations in order to get a
- Withdrawing Art 22. Vienna 1969 A reservation may be withdrawn at any time, consent of a state who has accepted reservations is not required. An objection to a reservation may be withdrawn at any time. Unless the treaty otherwise provides: withdrawal of a reservation becomes operative when notice of it has been received by that state, withdrawal of an objection becomes operative when notice of it has been received by the state that had the reservation.
The international law commission has adopted the guide to practice. There are two problems:
1 st^ who is competent to decide whether or not a reservation is permissible under the treaties? When they have to decide on the matters of object and purpose of treaties.
2 nd^ and the consequences of the permissibility or non-permissibility
Lesson 9
Objection to a reservation does not reflect 100% the permissibility of the reservation.
There has been an evolution in international human rights. HR tribunals and treaty bodies have started assessing the statement above. Competence to do this has been embedded within these bodies of HR. Climate change treaties don’t have existing judicial bodies to interpret reservations. Domestic judges can do an interpretation but it will not apply to every party. E.g. Art. 20 sub 2. Treaty on racial discrimination? Treaties can have rules on the permissibility of reservations but it is binding only to the member of the treaty. (not a general principle of law).
Consequences of impermissible reservations -> look at Human rights treaties.
Why we should consider a reservation impermissible: As kicking out that party out of the treaty in the case when a reservation is impermissible, because the consent of the reserving party fades away.
Doctrine utile/inutile -> severability doctrine.
Question (EXAM): is it necessary for a treaty to be registered to the UN? No however it cannot be invoked if it is not registered.
Interpretation of the treaty (EXAM)
Looking at the Vienna 1969 (VLCT) articles here is easier for this topic than reading the book.
Who interprets treaties?
- A task for states first of all
- Then judges of international courts
Two main methods, objective and subjective.
- Objective: focuses on the terms of the treaty and the words. (Art. 31)
- Subjective: Focuses on original willingness of states. (Art. 32)
Two different matters: Objective method was the prevailing one on the Vienna 1969, the subjective method is a subsidiary one. Article 31. of this convention is called general rule of interpretation, and is based on an objective approach.
Criteria of art. 31.
- The meaning of the terms with their ordinary meaning
- Good faith
- In light of the object and the purpose of the treaty.
- Context, preamble of the treaty and annexes.
Context of the treaty, extends to the preamble of the treaty. Subsequent agreements concerning the very interpretation of that treaty. Subsequent practice of states, how states apply that treaty. Systemic interpretation , those rules are relevant to parties.
Systemic interpretation (integration)
Criteria: relevant to the parties (a must)
The solution lies in art. 31.3c, systemic interpretation. If we have multilateral treaties, we should take into consideration which other rules of international law apply.
General is relevant for all states. Subjective method as a supplementary method of interpreting treaties. Under two main circumstances;
- In order to confirm the meaning of the treaty (objective method)
- If the meaning of the treaty is ambiguous or obscure or if the outcome manifests as absurd or unreasonable.
Lesson 10
Article 31. General rule of interpretation, Vienna 1969. Pay attention to the object and purpose part in article 1. The preamble can be used to identify the object and purpose as mentioned in pt 1. Annexes,
Art. 31 sub 3.C contains the systemic approach of interpreting treaties. “Any relevant rules of international law applicable in the relations between the parties. Basically refers to the VCLT.
Art. 31 and 32 both important.
There is some issue with the language of the treaty, sometimes it’s harder to asses which language to use. This can sometimes lead to some miscommunication because of language differences. In order to tackle this you have to find the authentic text of the treaty. In the Vienna 1969, Art. 85 considers this. Interpretation of treaties is very important on the EXAM.
Art. 8 ECHR, most important for interpretation. Art. 31 sub 3.c. pay in mind the customary laws. Another method in edition of interpretation, other than evolutionary approach(most commonly used in human rights treaties). The Theory of implied powers (used in European Union).
It found its origin in the USA constitution. Has been applied by European court justice to determine powers of member states. Has also been applied by ICJ. Powers to exercise explicit competences.
Lesson 11
The scope of application of treaties. Three sub aspects:
- Territory of states
- Subjects
- Time
states as the earlier one, the earlier treaty only applies on the provisions that are compatible with the new one, it’s basically saying the new treaty prevails. Vienna 1969, Art. 30.
Vienna 1969 Art. 30.4, When the parties to the later treaty do not include all the parties to the earlier one….Vienna 1969 Art. 30.5 This paragraph is without prejudice to parties wanting to modify the existing treaty otherwise Art. 60 (Suspension of the treaty or termination) comes into effect. Also read Art 103 of the UN charter. In the Event of a conflict between obligations of the members of the UN and their obligations under any other international agreement (treaty) obligations under UN charter prevail.
Article 53. ECHR, Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party. Article 8 of African convention on HR.
Lesson 12
Invalidity and termination of treaties.
Invalidity and termination are two different ways, and have different institutions handling them. They are different and have different effects
Invalidity of treaty, the provisions of the treaty are void and the treaty has no legal force. The treaty is null and void. Art. 69 Vienna 1969. If the treaty is void, the parties may ask to re-establish their position pre-treaty. Acts performed in good faith are not rendered unlawful. Fraud, coercion and corruption are not protected by the previous paragraph (2) of this article. They are unlawful. Invalidity entails, the treaty has no legal force.
In which ways may a treaty be invalid: Error, fraud or corruption, coercion, incompatibility with peremptory norm(jus cogens) and the violation of an internal rule concerning the competence to conclude a treaty (EXAM)
- Error may come into consideration when a state uses a fact that is wrong, error is concerned with a factual situation. Errors should be excusable if a state was not aware of the fact. Art. 48 Viena 1969.
- Fraud is on the relationship between states, corruption is when a representative of a state is corrupted. Art. 49 Vienna 1969 and Art. 50 Vienna 1969.
- Coercion of the representative and coercion of the state, two ways of coercion. Coercion against a state consists of a threat or use of force. It’s one of the most fundamental customary rules. Art. 51 and 52. Vienna 1969. This does not cover economic sanctions.
- The violation of an internal rule concerning the competence to conclude a treaty. Art. 27 Vienna 1969. Internal law cannot create a reason for non-compliance to a treaty. This is when a state hasn’t made reservations. There is an exception in Art. 46 Vienna 1969. This one is considered when a representative isn’t considered competent by internal law of a state. Two main conditions for this Invalidation. The violation should be manifest, it should be clear there is incompetence, there is no question about it and the other one is, the domestic rule should be a fundamental rule. EXAMPLE in book: Italy, the head of state must be authorized by the parliament to conclude a treaty. This problem has become recently relevant when you consider EU and African and Arab countries on migration.
- Treaties conflicting with a norm of general international law (jus cogens). Jus cogens means it cannot be derogated from. A treaty concluded at a time where it is conflicting with an
existing norm it is void. So jurists will have to determine if the time of the treaty being concluded was before or after the recognition of the jus cogens. A peremptory norm is a norm accepted and recognized by the international community of states. Mind art. 13 of the UN Charter.
We should distinguish relative and absolute grounds of invalidity.
- Relative: error, fraud or corruption, violation of internal law with regard to competence.
- Absolute: coercion and conflict of jus cogens.
Three main reasons for their difference: severability, curability, and invoke-ability. Severability means it only has impact on one or some provisions, if it has effect on some it is relative, if all, its absolute. Curability means, if it can be helped or not, if it can, relative, if not absolute.
Lesson 13
Termination, a consequence of this, the treaty ceases to produce legal affect. But everything that happened till the termination are safeguarded. The rights and obligations of the treaty stands until termination. Art. 70 Vienna 1969.
Termination of treaties. Or suspension of treaties. Every right or obligation before termination are valid, after that, no longer. This is the main difference between invalidity and termination. Art. 70, and 72. Vienna 1969.
Difference between suspension and termination is that a treaty is not terminated during suspension, but rights and obligations are suspended.
Three grounds of suspension or termination, or termination in particular.
- Withdrawal, an instrument drawn by the state when they no longer want to be part to the treaty. Withdrawal is explicitly set forth under the treaty. If a state withdraws from a treaty, within bounds of the treaty, there is no legal question of the withdrawal. Example: Trump administration withdrawing from several treaties Art. 58. Although the US should have given longer notice of this withdrawal. If through withdrawal a treaty loses its minimal requirement of signed states, it will not cease unless the treaty otherwise states. (art 55, Vienna 1969)
- Final term, also expressly set forth within a treaty. Basically is an expiration date of the treaty. For example, the treaty establishing the former European Community of Coal.
- Final condition. Also explicitly in the treaty. Usually a natural condition. A circumstance under which a treaty terminates. Art. 54 Vienna 1969.
These are instant grounds, as established by the treaty of when all parties consent.
It is much more complex when there is no provision to withdraw. If the treaty does not provide an option, it is still possible through exceptions. It undermines however pacta sunt servanda. If it is possible to look at the original willingness of the parties, allowed withdrawal, it should be possible to withdraw, this is one of the exceptions. If the possibility to withdraw may be derived from the very nature of the treaty is another exception. It raises several problems because its open to discussion. The assessment of the nature of the treaty is very challenging. It is related to the factual difficulties of finding the preparatory work on the drafting of the treaty. Art. 56 Vienna 1969.
Art. 19 and 31. And 53. Gives several options to look at the nature of the treaty.
Another suspension or termination comes from another treaty which allows for the termination. There is a case of implicit terminations of a treaty if certain circumstances occur. The parties and the
notification may be adopted. On the other hand, if there is an objection, a new stage of this procedure starts.
An objection means there is a dispute. After an objection there is a period of 12 months in which time the states should find a solution. UN charter article 33. If they don’t find a solution in this period, there are two possibilities. The case goes to the International Court of Justice when the grounds are the peremptory norm (Ius Cogens), invalidity or termination.
When it concerns other cases, it may be brought to the Secretary General of the UN and it will go to a conciliation commission. This course of action when the commission is included is mandatory though the solutions of it are not.
Art. 65: 67 Vienna 1969
We have studied treaties, international customary law and general principles.
Legally binding acts of international organizations come into consideration when the treaty establishing, or creating that organization, provides that that organization is endowed with the powers to work towards that treaty. Attribution principle. This situation is exceptional, it doesn’t happen often.
The Security council of the UN charter, under chapter 7, has legally binding powers. The general assembly does not have legally binding powers unless under exceptional circumstances. It relies on the budget of the UN too.
Another international organisation with legally binding powers, is the World Health Organisation, which has the power to adopt health regulations which are binding. Another instance is the Seabed authority. The Montego Bay convention endowed the organisation with powers beyond the jurisdiction of states so as best to administrate and protect common values.
International organisations may adopt binding acts when it has been established in treaties. Third rank sources. Bear in mind there is no proper hierarchy in this concept though. Their bindingness is based on the treaty. Pacta sunt servanda.
Unilateral declaration or acts of states is another source of international law. If a state engages other states to act a certain way, is it binding? 1964 ICJ, the nuclear test case. It was broken by New Zealand and Australia against France. The experimentation in French Polynesia. The conduct of France was unlawful and broke several rules. Australia and NZ said the conduct of France was unlawful. The president of France made several remarks outside of the proceedings. France would stop with the atmospheric tests, and started another program underground. The ICJ argued that these declarations amended the conflict. If France had started again, NZ or Australia could have brought the case before ICJ again. In 1995 NZ brought the case again with regard to underground tests. The ICJ ruled that they did not have jurisdiction over the underground.
Soft law is the last category and a huge one. What is not legally binding, but has some relevance to international law falls under this. When non-binding provisions are included in a binding instrument this is one such instance. For example the Paris agreement, which has a lot of provisions that are not binding. Soft law instruments are provisions who may induce states to adopt certain conduct.
Recommendations of international organisations, who are usually not binding, is a case of soft law.
Declarations of principles by the UN general assembly, NEVER confuse them with General principles of law!!!
Lesson 15
Relationship between International law and national law
2 main theories: Monistic theory and Dualistic theory
- A] Monistic theory: There are no different legal orders, all part of the same legal system.
International law is part of the domestic legal system, it’s the foreign law of each domestic legal system. A predominance of national law over the international law. The contribution of Kelsen changed this conception: There is a primacy of international law over domestic legal order because the latter belongs to the same.
- B] Dualistic theory: Different legal system: international legal system / domestic legal order – they are completely different even if they interact. They are different because of subject, sources, content of rules. The main consequence of this conception is that if they are two different legal system = national legal order need to incorporate international law in their system. [it is the predominant theory]
International Legal Personality (ILP) of States and Succession of States
Lesson 16
The issues on the material part of International Law. The very notion of international legal personality. The identification of the subjects may change.
These entities possess rights and obligations. We may consider the capacity of making the law, as the future of International Legal Personality (ILP). Whereas certain mistakes are able to create law, the same may not be true for other actors operating in international systems.
Only states should be the subject of international law because it’s up to the states to enforce the law. The legal relevance of a certain entity is important. ILP is a certain set of rights and obligations for a subject, be it a state or organization.
States
We may define a state as an effective and independent government over a territorial community. 1933 Montevideo convention, Art. 1, the state should possess the following qualifications, a government, territory and population, and the capacity to enter into relations with other states. Government has to be effective and independent.
Difference between state and nation. Technical term is state. The nation is a community of people sharing same language and culture.
Territory should be a natural portion of land. Population, it has to consist of a number of people permanently residing in a territory and these individuals need to be a community.
Government, in the ordinary meaning means administrating a certain territory. It needs to be effective and independent. It must be able to create law, pass judgements and carry out administrative acts. Failed states are not states because the government isn’t effective.
Terra Nullius , territory of no one. It means it may be occupied foreign states. Failed states are considered terra nullius but the international community is reluctant to regard it as such because it invites occupation without international backlash. Governments in exile are unable to administrate their territory, thus lacking effectiveness.
If effectiveness is important in determining borders, it would be easy to say a state invades another territory on this basis, but it has been prohibited.
Succession of states. The replacement of a state by another state in the government of a certain territorial community. When the replacement of one state takes place (factual situation), the legal consequences may be analysed in several aspects:
- Properties
- Nationality of the individual
- International responsibility
- Treaties
If state A has several debts to state C, and state B annexes it, what happens in this case?
With regard to treaties, codified in 1978 Vienna, entered into force in 1996. It’s an exercise of progressive development. With regard to succession of states, in respect of treaties. We have to consider that there are basically two main rules: the continuity rule or the clean slate.
Continuity, treaty continues to apply to the successor state. Clean slate means the treaties will terminate for the successor states. Whereas the clean slate rule applies on the majority of cases within general international law. Because of customary law Continuity is more an exception in practice but because of the Vienna convention 1978 (codified) clean slate is the exception according to this. New independent states due to the process of decolonization.
We should consider the exceptions the continuity rule comes into consideration. The main exception concerns the territorial ground treaties (localized treaties, how to use the territory by certain states). The continuity rule applies in these treaties. Exceptions to this, for example treaties that establish military bases on territory especially when the relations between these two states are bad. Prof Conforti said that indeed with regard to the boundary treaties it’s not the continuity rule that comes into consideration but it’s a matter of effectiveness. Once it comes into force it’s a factual situation. Another category of treaties when continuity applies, the Human Rights treaties. The rationale is that certain HR treaties are guaranteed to individuals residing in a certain territory, those individuals should not be deprived of these rights. Art. 26 HR committee.
Lesson 18
Forms of activation of the clean slate rule.
Notification of succession. For example state A turns into state B. Treaties for state A get terminated. If however state B sends a notification about the treaties, of its intention to become a party to these treaties. Only possible with regard to multilateral treaties that are open to accession.
There is a difference between this notification and real accession, accession has its effects when it has happened. Notification has retroactive effects. Without this notification it will mean a state doesn’t have the obligations during this period. Retroactive means, it is active since the signing of the original state by the treaty.
The evolution agreement( typical of the decolonization process), we regard these decolonization as secessions. Some instances of succession of states. Separation, two kinds: transfer of territory and secession. A bit of territory sold to a state (Alaska sold to the united states by Russia). In that case, the treaties that were binding on Russia terminated with regard to that territory, but all the treaties of the US started applying on Alaska. The moving frontiers principles.
With secession , part of a former state (territory) becomes a new state. Dismemberment , former state does not exist any longer (example: Soviet Union, Yugoslavia).
Incorporation , state A (annexes) entirely a certain state. State B ceases to exist, all the treaties terminate for this state. But the treaties for State A start to apply for state B.
Merger , union of two states that become a new state. Treaties keep applying. (unification of Italy, incorporation of merger? The sovereign reign incorporates all other state.)
Law of the Sea Convention
International Law of the Sea convention. Sovereignty and jurisdiction. Codification process started in the 50s, 4 conventions have been adopted with regard to different parts of the sea. International Law commission was responsible for these. A new convention, the UN convention (Montego Bay 1982) is now ruling, not the 4 original ones.
Areas the sea is divided into under the convention.
Territorial sea, contiguous zone, economic zone, continental shelves and high seas.
Territorial sea, is the part of the sea that extends up to 12 nautical miles. Art. 3 Montego Bay 1982. Art. 2.1 says the sovereignty of the coastal state extends to the territorial sea. We look at low water to determine the baseline. Art. 5.
Passage should be continuous and expeditious in these seas. Anchorage is prohibited unless it is strictly necessary for navigation purposes or force majeur. Art. 17, 18. Art. 33 is about the contiguous zone. In a zone contiguous, the coastal state may exercise the control to prevent infringement of certain factors. Contiguous zone may not extend beyond 24 nautical miles from the baseline.
Lesson 19
Exclusive economic zone.
Part of the sea that may be established and extends up to 200 nautical miles to the baseline. It must be declared by a coastal state who wants to exploit this zone, and the other important feature is that it is limited to the natural resources in the water. The coastal state also has powers of protection of environment, and scientific research. Art. 55 and 57
Exclusive economic zone and the continental shelf
In contrast to the economic zone, the continental shelf is a natural prolongation of the coast under the sea. The continental shelf is a natural prolongation of the coast of the coastal state. The shelf does not need to be declared, it exists or does not exist. If it does exist, a state has certain rights and obligations. It enjoys exploitative rights to this part. Since in the continental shelf, the coastal state enjoys exploitative rights, in the seabed and soil of this part. But the continental shelf does not create rights and obligations as opposed to exclusive economic rights.
If the natural breadth of the continental shelf is less than 200 miles, the extension is nonetheless considered to be 200 miles. If the shelf is bigger than 200 miles, there are certain limitations, the max being usually 350 miles. Art. 76
The coastal state exercises sovereign rights (art. 77).
