Slide Legal Foundations of Public International Law Prof

Slide Legal Foundations of Public International Law Prof. Rosemary Byrne Trinity College Dublin September 2014 CESL Master in European and International Law (MEIL) This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of Prof. Rosemary Byrne and can under no circumstances be regarded as reflecting the position of the European Union. 1

Slide 2 Legal Foundations of Public International Law Module: Public International Law & Human Rights Tutors: Padraig Hughes and David O’Sullivan China-EU School of Law

Slide 3 1. The Nature of International Law

Lecture Overview • Definition of International Law • Distinctions between International and Municipal Law • Historical Evolution of International Law Discourse • Historical/Geo-Political Transformations • Class Exercise on the Role of International Law in Conflicts: East China Sea Case Study • Assessment of the Effectiveness of International law

Definitions of International Law System of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law

Compliance with International Law Practice and Paradox

ICJ Statute Art. 36 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. …. 5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. 6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

International Law UN Charter • Horizontal System of co-ordination Preamble, Art. 2 • Law Making Processes UNGA/Security Council Arts. 10 -14, Art. 23 -25, Ch. VII • Interpretation of the Law Courts Optional Jurisdiction ICJ Statute Art. 36 Auto-Interpretation • Enforcement Security Council Chapter VII Self-Help

Legal Systems Municipal International • Vertical System of subordination • Horizontal System of co-ordination • Law Making Processes Legislature • Law Making Processes UNGA/Security Council • Interpretation of the Law Courts Optional Jurisdiction Auto-Interpretation • Interpretation of Law Courts of Compulsory Jurisdiction • Enforcement National Police • Enforcement Security Council Chapter VII Self-Help

Historical/Geo-Political Transformations in the 20 th Century and the Development of International Law • • Creation of the League of Nations Creation of the United Nations Cold War Decolonization Fall of the Berlin Wall Public access to the WWW 9/11 Terrorist Attacks

Historical Evolution of IL Discourse • • Christian States (17 th-18 th Century) European States (18 th-19 th Century) Civilized States (19 th -20 th Century) Human Rights Respecting States (2 nd half of the 20 th Century) (Goldsmith and Posner, The Limites of International Law (OUP 2005) pp. 182 -183

League of Nations 1920 -1946 Treaty of Versailles 1919 Permanent Court of International Justice

Creation of the United Nations Post World War II Era • Establishment of the UN Nations • UN Charter as the Foundation Instrument of the International Legal Order • Political and Legal Framework for Community of Nations • Creation of Architecture for Collective System of Security • Recognition of Fundamental Principles for International Governance and the Conduct of States Sovereignty, Equality of States, Use of Force • Universal Declaration of Human Rights (1948)

Expansion and Diversification of Community of Nations 51 MS in 1945 to 193 in 2014 Emergence of ‘Third World’ Non-Aligned Movement Transformation of Global Agenda Decolonization Sovereignty Self-Determination Development UN Representation Rise of Regionalism

Fall of the Berlin Wall 11/9/89 End of the Cold War Revitalization of Security Council Demise of Ideological Stalemate Proliferation of Human Rights Treaties Accelerated Globalization Transborder Networks Rise of Importance of Non-State Actors

9/11 Terrorist Attacks War Against Terror Emerging Role of Non-State Actors in International Law

World Wide Web IL Examples • Increased capacities for transnational co-operation across • access to law and policy across States and International bodies • Cross –Fertilization of legal norms • Professional Networks and Dialogue • Increased transparency of state negotiations • Expansion of Multiple Audiences for International Legal and Political Discourse Implications for: • Social Movements and Civil Society • Progressive and Accelerated Development of International Law

East China Sea Islands Japan has “severely infringed” on China’s territorial sovereignty and the personal rights of Chinese citizens “The Senkaku islands are Japan’s own territory, ” Japanese Prime Minister Naoto Kan Diaoyu (Chinese) Senkaku (Japanese)

On 6 February 2009, with regard to the report that Japan's Maritime Safety Agency stationed for the first time PLH (patrol vessels large with helicopter) in the waters of Diaoyu Islands, FM spokesperson JIANG Yu replied that, The Diaoyu Island its adjacent islets have been China's inalienable territory since ancient times. China has undisputable sovereign rights over them. Any action by the Japanese side to strengthen actual control over the islands constitutes an infringement upon China's territorial sovereignty, which is illegal and invalid, and should be stopped immediately.

Japenese Detention of Chinese Trawler Capt. – Sept. 2010 News of the Communist Party of China 20/9/10 http: //english. cpc. people. com. cn/66102/7145747. htm • Two Japan Coast Guard patrol ships and the Chinese fishing boat collided in waters off the Diaoyu Islands on Sept. 7. The Japanese side illegally seized the Chinese trawler and fishermen, and continued to illegally hold the Chinese captain despite firm protests by the Chinese side. Wang warned China will take strong counter measures if the Japanese side fails to release the Chinese captain immediately and unconditionally. "Japan shall bear all the consequences that arise, " he noted. Sources with the Foreign Ministry said earlier Sunday China had already suspended bilateral exchanges at and above the provincial or ministerial levels, halted contact with Japan on the issues of increasing civil flights and expanding aviation rights between the two countries. A bilateral meeting on coal has also been postponed. In the mean time, the number of Chinese citizens traveling to Japan as tourists has already declined.

‘With any country, a territorial dispute and challenges to sovereignty over its people are not matters that can be taken lightly. There is no question that China had to take a tough stance on Japan’s seizure of Chinese boats and nationals which, because the seizure took place in international waters where the maritime flag state is to be respected, are subject to return to the country under which the ship is flagged. ‘ Brookings Institute, November 2010

"The incident created by the Japanese side has severely damaged China-Japan relations, " said Wang, stressing how the situation develops completely depends on what choices the Japanese side will make. The Japanese authorities handled the case of the Chinese captain under Japanese law.

• • Chinese vice FM strongly protests Japan's extended detention of Chinese skipper Japanese authorities argue that detention powers rest with the authority of the prosecutor and cannot be interfered with by the executive branch. • Chinese Vice Foreign Minister Wang Guangya made solemn representations to Japanese ambassador to China Uichiro Niwa on Sunday evening to express strong indignation and protest against Japan's prolonged detention of a Chinese skipper. • Chinese citizens protest outside of the Japanese embassy in Beijing • Chinese skipper is released and returns to China

Class Exercise Address the following questions: How does China respond to the alleged violation of its territory? How does Japan respond to China’s demands for the release of the detained captain? • What are the legal issues in the dispute? • What are the other relevant facts underlying the dispute? • From the facts presented, what role did international law play in the dispute? • What does this case study illustrate about the mechanisms available to states to settle disputes? • What observations can you make about the nature of international law based upon the unfolding of this dispute?

Slide 25 2. Principles of, and Perspectives on, International Law Prof. Rosemary Byrne

Lecture Overview TOPIC ONE • Legal Skills for IL: reading caselaw and legal instruments • Historical Evolution of International Law Discourse • Historical/Geo-Political Transformations • Alternative Perspectives • Evaluation of IL • Principles of International Law

How to read case law • Read the Intro and Endnote comments FIRST • Note the Court /Tribunal (Int. /regional/natl, or merely diplomatic correspondence, ie Caroline Case) • Who are the parties? • Is it a judgment or ‘advisory opinion’, views of a committee, etc. ? • In what era is this judgment being rendered? • What is the question the court is asked to address • What is the rule/or holding for which this case is cited? When reading the judgment consider the following: • the relevant/distinctive facts • the legal reasoning adopted by the court • the sources of law are being relied upon • the Dissent—(also note how many judges dissented)

UN CHARTER Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

UN CHARTER Article 27 Each member of the Security Council shall have one vote. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

• To begin with, I believe that all nations - strong and weak alike - must adhere to standards that govern the use of force. I - like any head of state - reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards strengthens those who do, and isolates - and weakens - those who don't. Barack Obama, Nobel Peace Prize Acceptance Speech, 12/10/09

• China is a responsible, large developing country. Though not rich, it has honored its commitments to the Millennium Declaration and done what it can to help some least developed countries…. It is important to resolve regional conflicts and ethnic strife through peaceful means rather than by force. We should promote democracy in international relations and encourage all countries to have consultations on an equal footing, seek common ground while reserving differences, pursue win-win outcomes and live in harmony with each other. Premier Wen Jiabao, United Nations, 25/9/08

Alternative Perspectives • TWAIL Third World Approaches to International Law • Feminist Perspectives on International Law • Socialist Perspectives

UN Security Council Resolution 1325 (UNSCR 13251) on Women, Peace and Security 2000 • participation of women at all decision-making levels and in peace processes • inclusion of gender training in peacekeeping operations • protection of the rights of girls and women • gender mainstreaming in the UN’s reporting and implementation systems.

Factors to Consider in Assessing the International Legal System • • • Many challenges are global – Environment, Migration, Trade Adapted to Context of Diversified World ‘Habit of Law’ Force of Legality in International Discourse Juridical Nature of IL and Rate of Compliance Invisible Effective Deterrence • • • Difficulty in Developing International Law No Compulsory Court No Enforcement Inequality Amongst States Impact of Power and Selective Interests on Action Limited Capacity to Constrain Use of Force

1970 UN Declaration on Friendly Relations in International Law 2625 (XXV) Overriding Principles of International Community New Role of Developing and Socialist States in the General Assembly Re-Stated and Progressively Developed Principles In the UN Charter Transforms Self-Determination and Racial Equality into a Formal Legal Principle Non-Binding but Universal Application

The Principle of the Sovereign Equality of States • Fundamental Premise of All International Relations between States • Mirrors Art. 2. 1 of UN Charter • Gives rise to the underlying principles of ‘consent’ and ‘reciprocity’ in IL • Sovereignty and Jurisdiction Power to a State to exercise public functions over individuals located in its territory 1. jurisdiction to prescribe 2. jurisdiction to adjudicate 3. jurisdiction to enforce

The Prohibition on the threat or Use of Force Art. 2. 4 UN Charter and VII Exceptions of the Right to Self Defence Inter-State Use of Force Challenges to this Regime Evolve Over-time Bombing of Hiroshima Liberation Movements fighting Oppressive Regimes (fighting for self-determination)

The Duty to Settle Disputes Peacefully Art. 2. 3 UN Charter and Chapter VI Complementary to ban on the use of Force (ICJ Nicaragua Case) Cannot be compelled to pursue an explicit mechanism for reconciliation

The Duty of Non-Intervention • Effective Shield for States that has undergone steady evolution from 1945 onwards • Applies to Interventions such as Use of Force National Institutions Assistance to Insurgents (notable exception of Freedom Fighters) • More ambiguous when applies to areas such as: Economic Intervention Information Propaganda • Narrowing of the Principle through the doctrine of

To Duty to Co-Operate • Shift from International Law as a System of Co. Existence to that of Co-operation • Expanding to Include Development: 1960 GA declares resolve to seek a better system of international cooperation whereby prevailing disparities in the world may be banished and prosperity secured for all

The Principle of Equal Rights and Self. Determination of People • States must allow oppressed peoples the right to the free exercise of self determination • Third States cannot assist oppressor States in suppressing/or denying right of self-determination • Implications for the Use of Force-denied to States but allowed for Liberation Movements • Incorporation of this Right in International Human Rights Covenants 1966 and for Rights of Minorities

The Principle of Good Faith • Genuine Efforts to Comply With International Obligations and Commitments

Assessing the Declaration • Absence of Clarity on Legal Status • Limitations as a blueprint for world order • Emphasis on sovereignty v. co-operation

UN CHARTER Purposes of the UN • • • Art. 1 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; … See also Arts. 55 -56. UN Charter Principles of the UN Art. 2 • 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

Definitions of International Law System of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law – Rules and Principles derive authority from their source – International law is a corpus of treaties, agreements, customs, state practices, decisions of tribunals etc by which states agree to abide.

Some things you must know • Identify 4 core differences between international and domestic law? • What articles of the UN Charter define the core obligations of states in international law? • What are the principles of international law and what is their legal basis? • Give examples of how international legal principles reflect the geopolitical and historical period within which they have emerged?

Some things you should consider …. • What criteria should we apply in assessing international law? • Should these criteria be the same as those we apply in assessing municipal law? Why or why not? • Identify 4 main challenges confronting the effectiveness of International law? • What are the strengths and weaknesses of the international legal system? • Critically discuss the role that core principles play in international law? • Consider the past and/or potential impact of ‘alternative perspectives’ on the development of international law

Slide 49 3. Sources of International Law Prof. Rosemary Byrne

Lecture Overview TOPIC ONE Review • Evaluation of IL • UN Charter Principles, Tensions and Powers TOPIC TWO • Sources of Law • ICJ Statute • Customary International Law

• • • Sources of Law Skills Distinguish between sources of law Identify respective sources of law to be applied in a given case scenario Assess the authoritative status of any alleged rule or norm of IL Analyze the basis of State obligations in light of applicable sources of law Understand how the international law making process is a product of the distinctive features of the international legal system

Article 38. (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, 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) subject to the provisions of Article 59, 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, (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

ICJ Statute Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

Sources of Public International Law • Treaty Law • Customary Subsidiary Sources International Law • Judicial decisions • General Principles of • Writings of Publicists Law Recognized by ‘Civilized States’

Terminology Soft Law Two conflicting interpretations: 1. soft law contains normative rules do not contain precise or concrete obligations or rights but are rules of law 2. Soft law is evidence of evolving norms, but not yet rules of international – Soft law is de lege ferende: could become, but not yet, normative rule ex. General Assembly Resolutions

International Sources of Law UN Charter Prohibition Against Slavery Piracy as a Crime Against Mankind ILO Declaration on Fundamental Principles and Rights at Work • Rio Declaration on the Environment and Development • UN Convention on Corruption • Global Compact for Corporate Responsibility • •

UN Global Compact asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment and anti-corruption  Human Rights Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; Principle 2: make sure that they are not complicit in human rights abuses. Labour Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining Principle 4: the elimination of all forms of forced and compulsory labour Principle 5: the effective abolition of child labou Principle 6: the elimination of discrimination in respect of employment and occupation.   Environment Principle 7: Businesses should support a precautionary approach to environmental challenges; Principle 8: undertake initiatives to promote greater environmental responsibility; Principle 9: encourage the development and diffusion of environmentally friendly technologies. Anti-Corruption Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery.

Elements of Customary International Law ICJ Statute, Art. 38 b: international custom, as evidence of a general practice accepted as law What is State Practice? Includes Acts and Omissions Official Statements on Specific or General Issues Treaties as Evidence of Custom (Nicaragua Case, para. 177) 4 CORE ELEMENTS of CUSTOM • Consistency of Practice • Generality • Duration • Opinio Juris

Do International Conventions reflect customary international law? I. it may contain customary norms binding at the time of its conclusion; (declarative) II. it may constitute a final stage in a process of elaboration of customary norms; (chrystalizing) III. it may propose a new norm, to be subsequently confirmed by State practice (generative, de lege ferende) (North Sea Continental Shelf case)

Consistency • Constant and Uniform, As accepted as Law’ (Asylum Case) (NB: Anglo-Norwegian Fisheries Case re: importance of subject matter and role of objecting state) • Substantial but Not Complete Practice Problem: When is Norm breaking v. Norm Creating? (Nicaragua Case, para. 186)

Generality of Practice • Generally Adopted But Not All States Need Participate (see North Sea Continental Shelf Cases) Focus on the States Affected • Persistent Objector Rule Objection needs to be initial and sustained (see Anglo-Norwegian Fisheries Case) Opting Out v. Blocking Formation of Custom Claims of Opting out of Colonial or Imposed International Law Transformation of Custom (ex. Of Territorial Sea claim from 3 -12 miles

Local v. Global Custom Diplomatic Asylum Universal v. Regional Practice Local v. Global Custom LOCAL CUSTOM— Asylum Case (Colombia v. Peru) ICJ 1950 Local Custom can be between 2 or more states Must be Perceived as Binding, not merely habitual or for comity Can derogate from General Custom

Duration • No precise time of practice required Will depend upon the subject matter (see North Sea Continental Shelf cases) • Instant Custom : Possible, but not Probable

Opinio Juris • Essential Element of Custom (NSCS Cases) • Distinct from Acts on Account of Friendship and Comity • Different Views in the NSCS Cases As To Whether OJ Can be Inferred From Practice: Majority Says NO • Frequency or Habitual Practice is Not Enough to Establish Opinio Juris • Refraining From Practice Not Evidence of OJ (Advisory Opinion on Nuc. Weapons) OJ may have different levels of OJ and evidence thereof depending upon the substantive rule

Some things you must know…. . • The sources of international law • How law is created • How customary international law is created and the FOUR elements to establish custom • The differences between: treaty and custom global and local custom hard and soft law

Slide 68 4. Law of Treaties Prof. Rosemary Byrne

Judicial Trends • • European Court of Human Rights is overwhelmed with more than 100, 000 cases pending WTO Dispute Settlement Bodies have dealt or are dealing with more than 400 trade disputes, involving almost 100 States and trading entities the 26 cases filed with the International Centre for the Settlement Investment Disputes in its first 25 years are to be matched with well over 300 in the following 20 years case load of the International Court of Justice periods in 1970 and 1971, not a single case was pending and in 1972 the Court gave only one judgment, on a technical question concerning the appellate jurisdiction of the Council of the International Civil Aviation Organisation. In the past three years ICJ has given over 16 substantive decisions including two relating to armed conflicts, three arising from the break-up of the Federal Republic of Yugoslavia, three relating directly to human rights, three concerning rivers including environmental issues, and one delimiting the Black Sea between two of its littoral States. Cases have been between former members of the Soviet Bloc, one of three recent cases from that region. Others came from Africa, the Americas, and Western Europe and some were intercontinental. (KJ Keith)

Principles of Treaty Law • Good Faith (Preamble, para. 3, Art. 26) • Consent (Arts. 35 -36, Art. 52, Annex) Not applied to third parties No coercion, see Declaration on M, P or E Coercion • Pacta sunt servanda NB: only limited by ‘jus cogens’ • Rebus sic stantibus (Arts. 60 -62, 64) Extreme Change in Circumstances can Terminate Agreement

Treaty Definition Art. 2 International Agreement concluded between States in written form and governed by international law…. • Treaty Making Capacities Under VCLT Limited to States (Art. 3) Excludes: International Organizations (BUT 1986 Convention and Customary Int. Law) Individuals • Oral Agreements Treaties Not Covered by VCLT But Can Be Binding (see ‘Ihlen Declaration’, Legal Status of Eastern Greenland, PCIJ 1933)

Vienna Convention on the Law of Treaties of 1969 • Entered Into Force 1980 • Not Applicable to Treaties Concluded Before Entry Into Force (Art. 4) (NB: de facto applies because reflect CL)

Oral Legal Agreements Diplomatic Discussions quid pro quo (Eastern Greenland Case) • Unilateral Public Declarations (Nuclear Tests Case) (unilateral public declarations) I. Intention Be legally bound according to its terms 2. Public Declaration •

Reservations VCLT Arts. 2, 19 -23 • a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to that State. Article 2 (1)(d) • Reservation v. Interpretative Declaration Belios v. Switzerland (ECHR 1988) Mere Interpretative Declaration v. Qualified Interpretative Declaration

Reservations • Made Upon Accession or Ratification • Must be Compatible with the Aims and Objectives of the Treaty (VCLT Art. 19 (c) See Advisory Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide General Comment No. 24, HRC • Effect of Reservations on Other Signatory Parties Classic Approach (League of Nations) Reservations have to be accepted by all Parties Pan American Union Approach (adopted by ICJ) 1. If objected to by some and not all but reservation is compatible: State is a Party to Treaty 2. From the Perspective of the Objecting Party who considers reservation to be incompatible: Objector can consider the observing state not to be a party

CEDAW Reservations Art. 28 2 reservations must not be ‘incompatible with object and purpose’ of the treaty Principle of good faith

CEDAW Art. 2 State parties "agree to pursue, by all appropriate means and without delay a policy of eliminating discrimination against women" by undertaking constitutional, legislative, administrative and other measures. States parties shall also refrain from discriminatory acts or practices, pro vide sanctions where appropriate prohibiting all discrimination against women, protect the rights of women on an equal basis with those of men and, for instance, modify or abolish existing laws, regulations, customs and practices that discriminate against women.

Reservations to CEDAW Art. 2 • "[t]he Government of the People's Republic of Bangladesh does not consider as binding upon itself the provisions of articles 2. . . as they conflict with Sharia law based on Holy Quran and Sunna. ” • Egypt's reservation expresses willingness to comply with article 2 "provided that such compliance does not run counter to the Islamic Sharia. ’’ • Iraq's reservations to article 2(f) and (g), which are unexplained. Article 2(f) requires states parties "to take all appropriate measures including legislation to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. " Article 2(g) requires repeal of Penal laws that discriminate on the basis of sex.

CEDAW Reservations Art. 28 2 reservations must not be ‘incompatible with object and purpose’ of the treaty Principle of good faith

Determination of whether a reservation is compatible with O&P of Treaty? • judicial techniques of treaty interpretation (in light of provisions of a treaty, preambular language travaux preparatoires) • meaning and compatibility of a reservation are matters of substance and not mere form. • impact a reservation is liable to have on the obligation of result to eliminate "all forms" of discrimination against women, on the obligation of means to provide measures to achieve that result, and integrity of the treaty

Reservations VCLT, Art. 21 Legal effects of reservations and of objections to reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. (c) 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. (d) 3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Interpretation • Three Schools of Interpretation Intentions of the Parties (or Founding Fathers) see travaux préparatoires Textual (or Ordinary Meaning of the Words) Teleological (or Aims and Objects)

General rule of interpretation (Art. 31) 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement … (b) any subsequent practice …which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable …. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32: Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Some things you must know…. . • How are treaties made and who is bound by their obligations? • What are the principles of treaty law? • In what ways might a signatory state to a treaty no longer be bound by its obligations? • In what circumstances can states enter reservations to treaties to which they are a party? • What are the legal implications of a reservation that undermines the object and purpose of a treaty? • What are three schools of treaty interpretation?

and what you should consider…. What are the objectives of international treaty law and how are these met by the provisions of the VCLT? Does the provision for reservations in multilateral treaties strengthen or weaken a treaty regime? What are the respective benefits of treaty v. customary international law? Should treaty law replace customary law in the modern world?

Slide 87 5. Jurisdiction Prof. Rosemary Byrne

Types of jurisdiction (1) Exclusive and concurrent jurisdiction Exclusive Jurisdiction: one state has jurisdiction Concurrent: two or more states can claim jurisdiction (2) Criminal and civil jurisdiction Criminal: the main concern of Public International Law Civil: Private international law or conflicts of law

5 Principles of Criminal Jurisdiction 1935 Harvard Research Draft Convention on Jurisdiction Principles’ on which criminal jurisdiction is claimed by states: (1) Territorial principle : the place where the offence was committed (2) Nationality principle: the nationality of the person committing the offence (3) Protective principle: the national interest injured by the offence (4) Universality principle: the custody of the person committing the offence (5) Passive personality principle: the nationality of the person injured by the offence

Territorial Jurisdiction A State can exercise jurisdiction over persons, property, acts or events occurring, within its territory. • Universally Recognized • Practice has Extended the Principle to: (1) Subjective territorial principle a State has jurisdiction over offences commenced in its territory but completed or consummated abroad. (2) Objective territorial principle. a State has jurisdiction when any essential constituent element of a crime is commenced in another state • but completed or consummated in its territory. Objective Territorial Principle is more widely Recognized (Lotus Case)

Protective Principle a state can punish acts prejudicial to its security, integrity, or national interest, irrespective of where those acts take place or by whom they are committed. • No territorial or nationality links required • Only for threats to National Security and vital interests (includes threats to national economy)

Effects Doctrine States claim jurisdiction over any matters which produce an ‘effect’ in their territory. Extends protective principle Not limited to national security or vital interests of the state Criticized for its extensive exercise of extra-territorial jurisdiction

Universality Principle Crimes which are so destructive of the international order and are contrary to the interests of the mankind “The abhorrent crimes …are not crimes under Israeli law alone. These crimes are grave offences against the law of nations itself (delicta jure gentium). The jurisdiction to try crimes under international law is universal. (Attorney General v. Eichmann) Jurisdiction to Pursue State Practice: • Only State where accused is in custody may prosecute • Exercise of Universal Jurisdiction in Absentia is Not Accepted (see Arrest Warrant Case) Examples: piracy, genocide, war crimes, crimes against humanity

Crimes of Universal Jurisdiction • genocide, war crimes, crimes against humanity, torture, piracy, and slavetrading • Universal jurisdiction has been asserted for other international crimes under treaty law • Hijacking of aircraft, sabotage, terrorism, hostage-taking, drug-trafficking Treaties create Specific Obligations to prosecute or to extradite the accused (aut dedere aut judicare) (only binding among the parties but may reflect obligations under customary international law) • .

Passive Personality Principle If the victim of a crime is its national, a State can exercise jurisdiction over a foreigner even though the crime was committed in a foreign country. • Opposite of the nationality principle

Eichmann Trial Jurisdiction and Unlawful Abduction • Principle of Universal Jurisdiction • Response of International Community v. Israeli Courts to Unlawful Abduction

Some things you must know… • What are the two types of jurisdiction? • What are the 5 principles of jurisdiction? • Can you identify which courts generally apply these principles of jurisdiction? • What is the ‘Lotus Principle’? • Provide examples of how each of the 5 principles are applied? • Identify how – and why-- the exercise of the principles of jurisdiction by states has changed over time.

Some things you should consider…. • What does the way in which states exercise jurisdiction tell us about the way in which the international legal system functions? • Why is the Lotus case considered the high point of ‘laissez-faire international law’? • Why is exercise of jurisdiction considered to be an essential feature of state sovereignty under IL?

6. Immunities Prof. Rosemary Byrne

Immunities from Jurisdiction Types of Immunity • (1) Sovereign or State immunity; • (2) Diplomatic (and consular) immunity; and • (3) Immunity of international organization

Diplomatic Immunity Vienna Convention on Diplomatic Relations, 1961 Art 1: 3 Categories of Diplomatic Staff The diplomatic staff, namely, members of the staff of the mission having diplomatic rank, such as counsellors, diplomatic secretaries, or attachés. (b) The administrative and technical staff, such as clerical assistants and archivists. (c) The service staff, who are in the domestic service of the mission, such as drivers, cleaners and kitchen staff

Theories of Diplomatic Immunity • Personal representation or extraterritorial character for mission & representative character for diplomats as embodiment of foreign sovereign • Functional necessity to conduct business (see Iran Hostage Case, VCDI)

Preamble Vienna Convention on Diplomatic Immunities and Privileges The States Parties to the present Convention, Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents, Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations, Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems, Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States, Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention

Diplomatic Immunity • Immunity rationae personae • Criminal jurisdiction: absolute immunity (VCDR Art 29) extends to all diplomats consular officials more ltd immunity • Corresponding Duty to respect national laws and not to interfere in the internal affairs of the receiving State (VCDR, Art. 41)

Immunity from Criminal Jurisdiction and Responsibilities Art. 31 “A diplomatic agent shall be immune from the criminal jurisdiction of the receiving State…. Art. 41 • 1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. • 3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State

Inviolability The two main forms of inviolability are: (1) inviolability of the mission; and (2) inviolability of diplomatic agents

Inviolability of the Mission Art. 22 1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution

Inviolability of the Diplomat United States Diplomatic and Consular Staff in Tehran (Iran Hostage Case) Art. 29 The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity See also Art. 30

Iran Hostage Case – Inaction of the Iranian government a ‘clear and serious’ violation of Article 22 – No appropriate steps to prevent the attack – Once the violation had taken place Iran’s ‘plain duty was at once to make every effort , and to take every appropriate step, to bring these flagrant infringements of the inviolability … to a speedy end’

Yvonne Fletcher case

Abuses of Diplomatic Protections

Persona Non Grata Article 9 The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

Head of State Immunity • Personal inviolability: The Schooner exchange – “exemption of the person of the sovereign from arrest or detention” • Immunity from civil jurisdiction: Immunity for official acts but not for private acts • Immunity from criminal jurisdiction absolute immunity from criminal proceedings, in respect of both acts performed in the course of official functions and private acts (Arrest Warrant Case)

Head of State Immunity • Concept of Sovereign • Universal Jurisdiction v. Head of State Immunity • Pinochet Extradition Case (House of Lords, UK) • DRC Arrest Warrant Case (ICJ) • Rome Statute and Al Bashir Arrest Warrant

Special Court for Sierra Leone Charles Taylor Case Position of Head of State does not relieve that person of criminal responsibility nor does it mitigate punishment, Art. 6(2) Statute of SCSL, see also ICTY Article 7(2), ICTR Article 6(2) and ICC Article 27(2) NB: Distinction between CIL (Arrest Warrant Case) and Jurisdiction of International Criminal Courts

Head of State Immunity • (1) Serving head of State and a former head of State; • (2) Acts done in a private capacity and those done in a public capacity; • (3) Acts that are ordinary crimes v. acts that are international crime.

Pinochet Case (HL) “How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes? ”(HL Lord Browne-Wilkinson)

If a Head of State Commits an International Crime is he immune from the jurisdiction of national courts? • Serving Head of State immunity ratione personae (personal immunity) Complete immunity from all actions and prosecutions (Arrest Warrant Case, Pinochet Case) Former Head of State No Immunity for acts committed prior and subsequent to his or her period of office for acts committed during his or her period of office in a private capacity (Arrest Warrant Case) c) No immunity for core international crimes –ie genocide, crimes against humanity and war crimes (see Pinochet and emerging practice of states) • a) b)

Some things you must know…. • What is immunity from jurisdiction and does it affect the substantive liability of legal persons? • What is the role of diplomatic immunity in international law and why is it important? • What is theory that underlies the VCDR and explain how it influences the provisions of the treaty? • In light of the ICJ judgment in the Tehran Hostage Case, identify the obligations of host states towards embassies and diplomats in times of unrest. • In what circumstances do heads of state enjoy immunity?

Some things you should consider…. • Why do states grant immunities to diplomats? • Discuss three provisions of the VCDR that have given rise to abuse by diplomats and indicate whethere are ways to interpret these provisions so that it would offer more protection to host states.

Slide 8. Unilateral Use of Force Prof. Rosemary Byrne

Legal Issues Missile Strikes in Syria -Does the Prohibition of Chemical Weapons apply to Syria? Why or Why not? -Are there provisions in IL that specify the consequences for at State that acts in violation of this prohibition? Where would you look to find this? -In what circumstances could legal force be used against Syria? Consider the following: self defense, collective self defense, reprisals, humanitarian intervention, R 2 P, regime change -Is it lawful for 3 rd States to give the following support to the rebels in Syria arms, information technology humanitarian aid

Exam • You may bring in an unmarked copy of the UN Charter • You should be sure to inform your analysis with reference to sources of law, cases and assigned reading • Strong answers should include the following: • clear statement of the relevant law and core legal sources • where relevant, state practice, especially where the law, such as in the area of use of force, is developing • critical analysis

Unilateral Use of Force Topics Covered • Use of Force Before WWII • Prohibition on the Use of Force Under the UN Charter • Doctrines of Exception • Self Defence – Terrorism • • • Reprisals Rescue of Nationals Abroad Invitation Support of Wars of National Liberation Humanitarian Intervention/ R 2 P (Collective Use of Force)

Definitions Ius ad bellum laws of war, rules of international law regulating the use of force Ius in bello laws in war, law of armed conflict, regulating the conduct of war Unilateral Use of Force use of armed force by states or groups of states acting on their own initiative Collective Use of Force use of armed force that results from a collective decision by a competent international body (such as the UN) generally in support of ‘community goals’ Jus Cogens Peremptory Principle/Norms of Customary International Law recognized by states to be of such a fundamental nature that no derogation is permitted

Use of Force Before 1945 Just War Theory Rise of the Nation State sovereign right to resort to war jus in bellum not jus ad bellum importance of state practice League of Nations 1919 Kellogg-Briand Pact 1928 Art. 1: ‘condemns recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relationship with one another’ Prohibits War not Use of Force

General Treaty for the Renunciation of War 1928 (Kellogg-Briand Pact Persuaded that the time has, come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated; Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war a should be denied the benefits furnished by this Treaty; • Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavour and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy; • Have decided to conclude a Treaty… ARTICLE I • The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another. ARTICLE II • The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means. •

Use of Force Prior to WWII Governed by Custom and Treaty • Ban on the Resort to War • No Prohibition on the Resort to Force • Emergence of Doctrine of Self Defence under Customary International Law • Other uses of force accepted by States: Reprisals, rescue of nationals and humanitarian intervention

UN Charter and the Use of Force • “to save succeeding generations from the scourge of war” (Preamble) • Charter forbids unilateral resort to force and establishes a system of collective security • However, preserves the right of self-defence (Art. 51)

Corfu Channel Case ICJ 1949 HMS Saumarez Use of Force on Grounds of Self-Protection or Self Help : Violates International Law and the principle of non-intervention of national sovereignty

Article 2(4) • “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”.

Permissive v. Restrictive Schools of Interpretation • Permissive School UN Charter in line with Pre-45 doctrine Interprets 2(4) ban as conditional upon: ‘. . territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’ • Restrictive School UN Charter transforms IL with ban on use of force as set forward in the Charter. Custom superseded by the Charter

Article 51 – “Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…. ”

The Caroline Case (1837) Self-Defence under Customary International Law

Caroline Doctrine Anticipatory/Pre-Emptive Self Defence ‘necessity of self defense – – – is instant, overwhelming, and leaving no choice of means, and no moment for deliberation’ (exercised under the principle of proportionality) • Does Art. 51 Replace Customary Self Defence? – Restrictive v. Permissive Approaches • Contemporary Justification for Responses to Terrorism

Nuclear Weapons Case, Advisory Opinion …. the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. See dissent of V. P. Schwebel : It cannot be accepted that the use of nuclear weapons on a scale which would - or could - result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful. See also Higgins dissent

Palestinian Wall Advisory Opinion ICJ 2004 State to State Rule To exercise a right to self-defence, the ‘armed attack’ must be by another state, or groups of insurgents under the control of a ‘host state’ BUT SEE: Security Council Res. 1368 Re: 9/11 Affirms right to Self Defence against Terrorism, No Requirement of State Attack See dissenting opinions of Judge Buergenthal and Higgins

Nicaragua v. USA ICJ Charter and Customary International Law exist in tandem (paras. 188 -190) Addresses Attacks by Armed bands, groups, irregulars or mercenaries (paras. 195) Elaborates Distinction between Armed Attack and Unlawful Use of Force Introduces a ‘Scale and Effects Test for Armed Attack Elaborates on the Scope of Self Defence Introduces Alternative Concept to SD: ‘Proportionate Countermeasures’ Restricts Acts of Third States for ‘collective SD in response to use of force Below the level of armed attack

Nicaragua Case • Armed Attack can be the sending on or behalf of a State of armed bands, irregulars, mercenaries…which carry out acts of armed force against another State of such gravity as to amount to …an armed attack • If such an attack because of ‘scale and effects’ would have been classified as armed attack if carried out by regular forces • BUT assistance to rebels (weapons, logistical or other support) is NOT ARMED ATTACK, but may be threat or use of force and amount to invention • In instances of USE OF FORCE, state may respond with ‘proportionate countermeasures’ • Only target state, and not third state, may respond in defence of ‘use of force;

Oil Platforms Case (Merits) 2003 Iran v. USA Retaliatory Attacks on Iranian Oil Platforms Does not Justify Use of Force in Self-Defence. US Operation Does Not Satisfy Criteria of Proportionality and Necessity

Ideology and Intervention Monroe Doctrine 1823 Interference in Americas would be responded to as an act of aggression Reagan Doctrine Intervention to Support Anti-Communist Insurgents Brezhnev Doctrine Intervention to Support World Socialism

Protection of Nationals Abroad Entebbe (1977) Grenada (1983) Panama (1989)

Reprisals • Pre – 1945 • UN Charter • The Problem of Self Defence and Terrorism

Invitation • States may request the deployment of another States forces on its territory • Invitation as Mask for Regime Change Russians in Afghanistan, Czechoslovakia, Hungary

Some things you must know… • Describe the right of states to use force before WWII • Under what circumstances is the use of force permitted under the UN Charter? • Can the law regulating the use of force under the Charter co-exist with customary international law? • What is the difference between the Permissive and Restrictive Schools of interpretation of the UN Charter? Give examples of their implications for the right of states to use force. • When can Self Defence be used and what criteria must the lawful exercise of SD comply with? • What is meant by an ‘armed attack’? • Can non-state actors carry out attacks for SD? • Identify and assess the legality of the main doctrines that states have relied upon when using force against another sovereign state.

Some things you should consider…. • Is international law effective in regulating the use of force? Why or why not? • How, and why, has international law on the use of force changed over time?