UNIT 21 PUBLIC INTERNATIONAL LAW English for Lawyers

UNIT 21: PUBLIC INTERNATIONAL LAW English for Lawyers IV Snježana Husinec, Ph. D; shusinec@pravo. hr 1

Public international law vs. Private international law m. Remember the differences between public and private international law and fill in the table. Why is international law sometimes referred to as ¨soft law¨? Public international law Private international law Subjects (parties involved) Sources 2

Classify the following areas of law into public or private international law. adoption --- arms control --- contractual relations divorce --- environmental issues --- human rights immigration --- international crime --- maritime law piracy --- war crimes --- asylum PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW 3

Public international law • Think of some real life situations in which international cooperation and international law may concern you personally and can make your life easier. 4

Public international law Examples: • When you’re travelling to another country without being burdened about visa, it’s international law in effect. The visa-waiver agreement is a form of international cooperation and treaty-making practice of states. • When you’re travelling abroad and are treated in the same manner as the nationals of that state, it’s international law in effect. You can also start a business there, although there may be more paperwork needed than if you’re a national, you will still enjoy the same rights as the nationals - it’s international law. • When you’re studying in another country and your life is made a lot easier thanks to the embassy of your home state there, it’s international law in effect. Diplomatic cooperation enables your state to establish an embassy so that you don’t have to go back to your home state just to ask for an official stamp or information about immigration. • When, if you’re an Indonesian, you can buy an i. Phone 7, it’s international law in effect. Should there be no international trade cooperation and if Indonesia was not a party of an international organization that is WTO, you would not be able to enjoy the luxury of using Apple devices. 5

Regulating Relations between States • Read the text and provide each section with an appropriate subtitle. 1. 2. 3. 4. 5. 6. 7. 8. Definition of public international law Hierarchy of sources of international law Sources of international law International law vs. Domestic law International legal personality Some areas of international law State responsibility Use of force 6

Public international law • Read sections 1 and 2 and complete the following statements: A) International law is ____________________________________________ B) International legal personality entails 1. ___________________ 2. ___________________ 3. ___________________ C) ________ have full international legal personality. _________ have a degree of international personality. _________ have limited procedural capacity given to 7 them by states

Culpability of individuals under international law • The treaty-based and customary law applicable in both international and internal conflicts also governs the conduct of individuals –INDIVIDUAL CRIMINAL RESPONSIBILITY • Geneva conventions make frequent reference to the acts of individuals (the obligation to ensure respect for the provisions of humanitarian law requires the state not only to ensure that its agents respect the provisions, but all the people under its jurisdiction). • Crimes that can justifiably be prosecuted and punished by international community: a) GENOCIDE b) WAR CRIMES c) CRIMES AGAINST HUMANITY = unlawful acts committed as part of a widespread or systematic attack against a civilian population (murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, rape and enforced prostitution and other inhumane acts).

Hierarchy of international law • What, do you think, is the hierarchy of the sources of international law? • Read section 4 and establish the hierarchy of international law: 1. _____________ 2. _____________ 3. _____________ 4. _____________ 5. _____________ 9

Sources of international law Primary sources: 1. International agreements 2. Customs 3. General principles of law Secondary sources: 1. Judicial decisions (case law) - (have no binding force) 2. Writings of jurists 10

Primary sources - International agreements - bind only the parties to it - established by A) the UNITED NATIONS - The Universal Declaration of Human Rights - The Charter of the United Nations etc. B) through INTERNATIONAL TREATIES - The Geneva Conventions on the conduct of war or armed conflict - The UNESCO Convention against Discrimination in Education - The World Trade Organisation Framework Convention on Tobacco Control - Vienna Convention on the Law of Treaties etc. 11

The main types of international agreements Treaty = an international agreement concluded between States in written form and governed by international law, embodied in a single instrument or in two or more related instruments; Bilateral treaties, Multilateral treaties – (eg. Vienna Convention on the Law of Treaty 1969) - if ratified binding on the parties Charter = constituent treaties of international organizations (an institution or committee); they are the guiding rules and regulations for the functioning of that institution and also might lay down certain limitations for outsiders or participating countries (eg. UN Charter, ICJ Charter ) Convention = 1. (broader meaning ) all international agreements = 2. ( specific meaning) formal multilateral treaties with a broad number of parties; open for participation by the international community as a whole, or by a large number of states. Usually the instruments negotiated under the auspices of an international organization (e. g. Convention on Biological Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969) 12

Primary sources – Customary international law • comes from the usual behavior of states towards each other • a rule is identified on the basis that states usually act in a certain way, and do so out of a sense of obligation • an important source of international law because it binds all nations, and so is not limited in its application, as a treaty is, by reference to who has ratified it or acceded to it The elements of custom are: • uniform and consistent and general state practice over time; and • the belief that such practice is obligatory Example of customary international law: - the law of piracy - the doctrine of non-refoulment - granting of immunity for visiting heads of state. 13

Primary sources – General principles of law • GENERAL PRINCIPLES OF LAW – general principles of fairness and justice which are applied universally in legal systems around the world 1. Rules of international law which are of so broad a description that they can be called principles 2. Maxims of universal application in domestic law which have to be applied in interantional disputes as well • (“general principles of law recognized by civilized nations” are included in Article 38 of the International Court of Justice Statute ). • used primarily as "gap fillers" when treaties or customary international law do not provide a rule 14

Primary sources – General principles o law Examples: - The rule against bias („Nemo iudex in causa sua” – ‘No one should be a judge in his own case’) - The principle of reparation - The principle of state’s responsibility for its agents - The rule of good faith • The doctrine of necessity and self-defence • …. 15

International law vs. Domestic law • What are, in your opinion, differences between domestic/national and international law? • Read the section on Internatinal law vs. Domestic law and find the features of international law which distinguish it from international law. 16

International law vs. Domestic law • Read the section on Internatinal law vs. Domestic law and find the features of international law which distinguish it from international law: - Decentralized and based on consent - No international legislature enacting bindig rules - No international executive enforcing international laws - No compulsory judicial system (acceptance of jurisdiction is voluntary) 17

Enforcement of public international law • no compulsory judicial system; acceptance of its jurisdiction - based on consent, voluntary • judicial tribunals in certain areas (e. g. trade, human rights) Name Scope Years active Subject matter International Court of Justice (ICJ) Global 1945 - present General disputes International Criminal Court (ICC) Global 2002 - present Criminal prosecutions Permanent Court of International Justice Global 1922 - 1946 General disputes Appelatte Body of the World Trade Global Organization 1995 - present Trade disputes within the WTO International Tribunal for the Law of the Sea Global 1994 – present Maritime disputes Etc. … . . 18

State responsibility and the Use of force • Read the last three sections of the text and answer the following questions: 1. What is state responsibility? 2. What is the aim of reparation in the event of breach of international law? 3. How is aggression clasified under international law? 4. Is the right to self-defence guaranteed to states under any circumstances? 5. Can the use of force ever be justifiable? 19

Vocabulary practice I • Do ex. IV on p. 214. Translate the collocations into Croatian. • Find in the text the English equivalents for the following legal terms and expressions. 1. procesna sposobnost za traženje obeštećenja = 2. smatrati odgovornim za neispunjenje dužnosti= 3. odredba međunarodnog ugovora = 4. izričiti pristanak država = 5. biti uređen međunarodnim ugovorima = 6. poštivanje međunarodnog prava = 7. obveza nadoknade štete = 8. održati ili ponovno uspostaviti međunarodni mir i sigurnost = 9. upotrijebiti silu = 20

Vocabulary practice I - Key • Do ex. IV and V on p. 214. • Find in the text the English equivalents for the following legal terms and expressions. 1. procesna sposobnost za traženje obeštećenja = procedural capacity to seek redress 2. smatrati odgovornim za neispunjenje dužnosti = to be held accountable for non-fulfillment of duties 3. odredba međunarodnog ugovora = a provision of a treaty 4. izričiti pristanak država = express consent of states 5. biti uređen međunarodnim ugovorima = to be governed by treaties 6. poštivanje međunarodnog parva = observance of international law 7. obveza nadoknade štete = obligation to make reparation 8. održati međunarodni mir i sigurnost = to maintain or restore international peace and security 9. upotrijebiti silu = to employ / use force 21

Vocabulary practice II Change the following verb phrases into noun phrases. Verb phrase Noun phrase - to adopt a treaty - to sign a treaty - to ratify a treaty - to accede to a treaty - to enter into force - to approve a treaty - to accept a treaty 22

Vocabulary practice II - key Change the following verb phrases into noun phrases. Verb phrase Noun phrase - to adopt a treaty - to sign a treaty - to ratify a treaty - to accede to a treaty - to enter into force - to approve a treaty - to accept a treaty - adoption of a treaty - signature of a treaty - ratification of a treaty - accession to a treaty - entry into force - approval of a treaty - acceptance of a treaty 23

Extracts from the Vienna Convention on the law of treaties Read the extracts from the Vienna convention and answer the questions. • How can provisions of international law be incorporated into national legislation? • Why are definitions important in international agreements? • Find the general principles of international law mentioned in the introductory part of the Convetnion. • Find in Section 3, Article 31 the principles that will be applied in the interpretaion of the Convention. • How should treaties authenticated in different languges be 24 interpreted?

Vocabulary practice III - What is what in a treaty-making process? Match the terms and their definitions. ADOPTION when a state accepts the opportunity to become a party to a treaty already negotiated and signed by other states. It is the same as ratification. It usually occurs after the treaty has entered into force. ACCEPTANCE / a time when a treaty becomes legally binding on the parties to the treaty APPROVAL ACCESSION is the formal act by which the form and content of a proposed treaty text are established. It takes place through the expression of the consent of the states participating in the treaty-making process. ENTRY INTO FORCE the international act whereby a state indicates its consent to be bound to a treaty. It grants states the necessary time-frame to seek the required approval for the treaty by national legislatures. RATIFICATION Has the same legal effect as ratification and consequently express the consent of a state to be bound by a treaty. Used instead of ratification when national law does not require the treaty to be ratified by the head of state. RESERVATION Signing a treaty by a representative of a state by which the signatory state expresses the willingness to continue the treaty-making process. SIGNATURE is a declaration made by a state by which it wants to exclude or alter the legal effect of certain provisions of the treaty in their application to that 25 state which it does not want to comply.

Vocabulary practice III – key ACCESSION when a state accepts the opportunity to become a party to a treaty already negotiated and signed by other states. It is the same as ratification. It usually occurs after the treaty has entered into force. ENTRY INTO FORCE a time when a treaty becomes legally binding on the parties to the treaty ADOPTION is the formal act by which the form and content of a proposed treaty text are established. It takes place through the expression of the consent of the states participating in the treaty-making process. RATIFICATION the international act whereby a state indicates its consent to be bound to a treaty. It grants states the necessary time-frame to seek the required approval for the treaty by national legislatures. ACCEPTANCE / Has the same legal effect as ratification and consequently express the APPROVAL consent of a state to be bound by a treaty. Used instead of ratification when national law does not require the treaty to be ratified by the head of state. SIGNATURE Signing a treaty by a representative of a state by which the signatory state expresses the willingness to continue the treaty-making process. RESERVATION is a declaration made by a state by which it wants to exclude or alter the legal effect of certain provisions of the treaty in their application to that 26 state which it does not want to comply.