I SPECIAL NATURE OF INTERNATIONAL LAW

1
I SPECIAL NATURE OF INTERNATIONAL LAW

• Is it law ?
• Implementation ?
• What about enforcement ?
• Who is the legislator ?
• Differs obviously from national legal systems by
  nature

2
DEFINITION

• A system of rules and principles, which is
  applied in relations between sovereign states and
  international organisations like the UN

3
The rules created by states in the relations
between them

• It is in the interest of states to establish and
  keep up a legally organized international system
• The rules of international law cover nearly all
  areas of international activity law of the sea,
  space law, telecommunications, postal services,
  carrying of goods and passangers, money transfer,
  trade, warfare, human rights, nationality,
  extradition, expulsion and extradition,
  security of states, use of force etc.
• In fact very little happens in international
  affairs, which would not be regulated by
  international law

4
PUBLIC AND PRIVATE

• The interdependency of states presupposes a well
  functioning international system
• Public International law between states
• Private International law between private
  entities
• As a result of political choice in favour of
  private the public and private are rapidly
  intertwining both in national and international
  legal systems

5
INTERNATIONAL LAW WHAT ELSE ?

• International law only one regulator /gentle
  civilizer
• Diplomacy
• Politics
• Economy
• Citizens
• International organisations
• All these form together the basis for states
  decision-making concerning international affairs

6
Is it valid if it is violated ?

• Like everyone acting within a legal framework,
  states may decide to violate the rules of
  international law this does not bring an end to
  a norm violated
• However, if state practise emerges, the norm may
  change states seldomly claim their wrondoings
  constituting a state practise supported by
  sufficient opinio juris

7
INTERNATIONAL RULES AS A LEGAL SYSTEM

• International community (states, IOs) recognise
  the existence of the system of international law
  and its binding nature
• States do not admit that they would have violated
  IL(international law), but explain to have acted
  in accordance
• States believe that such a system exists
• Example US invasion of Grenada most states
  condemned not only immoral but illegal (also
  Iraqi invasion to Kuwait)

8
INTERNATIONAL RULES AS A LEGAL SYSTEM

• Vacuums in the system or its inefficiency do not
  as such make it invalid
• Its sui generis nature does not nullify its
  legal nature

9
LEGALLY BINDING INTERNATIONAL LAW

• Foreign ministries, national and international
  courts and IOs apply it on a daily basis
• legal departments giving legal advice on the
  application of international law
• use of legal concepts and language
• states consider to be bound to act on a certain
  manner and from time to time consider some other
  state not to act in confirmity
• International Court of Justice submits legal
  judgments

10
LEGALLY BINDING INTERNATIONAL LAW

• b) States do not claim to be above international
  law nor that they would be bound by it
• example Iraqi invasion to Kuwait, Soviet
  occupation of Estonia
• States do follow INTL because they consider to be
  obliged legally, otherwise there would not be any
  need to find kegal reasoning for their acts

11
LEGALLY BINDING INTERNATIONAL LAW

• c) INTL rules are followed systematically in
  state practise
• violations tend to crowd the international
  publicity rather than the routine everyday
  practise, illusion of inefficiency although it is
  a question of deviating from the normal an
  exception
• national legal systems have similar
  inefficiencies canot totally prevent crimes or
  violations of law
• most of the rules of international are followed
  for the most of the time

12
LEGALLY BINDING INTERNATIONAL LAW

• -d) In all legal systems there is established a
  system for solution of disputes concerning points
  of law and facts
• also in INTL
• in this regard INTL is organised more loosely
• legal bodies for the purposes international
  disputes ICJ, international arbitration, war
  crimes tribunals (Yugoslavia, Rwanda, ICC), WTO
• regional ECHR, ECJ, ACHR, AfricanCHR

13
ENFORCEMENT OF INTL

• IS IT law if not compulsory system of enforcement
  ?
• example Kuwait , rather peace enforcement than
  formal enforcement of INTL law with compulsory
  measures
• the validity of INTL is related rather to how it
  has been estalished and to how it functions than
  to compulsion
• Compulsion may be the reason to follow law but
  not the reason for its validity as a law
• The point it is essential that the system within
  which legal norms are established is commonly
  accepted

14
ENFORCEMENT OF INTL

• UN Security Council
• may take enforcement measures against a state,
  if it threatens peace or have committed an act of
  aggression or breach of the peace (UN Charter,
  art. 39 and ch. VII)
• precondition a resolution for that purpose is
  made by the UN security Council
• Five permanent members (USA, Russia, China,
  France, UK) veto right, earlier hindered
  resolutions on the use of sanctions, now new
  world order

15
ENFORCEMENT OF INTL

• May be
• military action Korea 1950, Iraq 1990/91, Kosovo
  ?
• economic sanction South-Africa 1977,
  Serbia-Montenegro 1992
• diplomatic, political social measure
  Delimitation of air-routes for Libyan airplanes
  after Lockerbie bomb 1992/93

16
ENFORCEMENT OF INTL

• UN SC resolutions have been applied to various
  situations
• Iraqi invasio to Kuwait
• Dissolution wars of Jugoslavia
• Civil war in Somalia
• Libyan involvement to air-flight terrorism
• ONLY IF the issue is about breaching peace,
  threat to peace or aggression
• UN SC is not dealing with general violations of
  INTL only the most seariest situations

17
ENFORCEMENT OF INTL

• b) Violation of legal rights
• - example a state A violates a trade agreement
  with state B
• - B may have a right to end the agreement
• cutting off diplomatic relations
• delimiting economic assistance
• end other trade agreements
• proportionality

18
ENFORCEMENT OF INTL

• Examples UK cut off diplomatic relations to
  Argentina after it occupied Falkland/Malvinas
  Islands, USA freezed the assets of Iran placed in
  US Banks during 1979/80 hostage crisis
• even international community or a larger group of
  states may adhere to similar measures
• loosing economic rights may have even a deeper
  impact than the use of force, since in a
  globalised world economy states are extremely
  dependent on each other

19
ENFORCEMENT OF INTL

• c) Legal enforcement
• International Court of Justice (ICJ) a court of
  law of the UN
• A state cannot be compelled to become a party in
  a case before the ICJ
• part of the States have recognised the compulsory
  jurisdiction of the ICJ
• others decide case by case whether they agree to
  become a party to the proceedings
• if they agree to ICJ jurisdiction its judgment
  is legally binding
• ICJ does not have any enforcement measures of its
  own

20
ENFORCEMENT OF INTL

• ICJ could (in theory) use enforcement through UN
  SC, but this has never taken place with success
• if UN SC would be used theenforcement is limited
  to matters within the powers of the SC
• possible only in a case that is already under
  consideration before the ICJ
• Lockerbie case 1992 the supremacy of the UN SC

21
ENFORCEMENT OF INTL

• the use of international special courts have
  increased (Iran-US claims tribunal, Bosnia,
  Rwanda war crimes tribunals)
• also domestic courts apply international law in
  cases involving international dimension

22
II SUBJECTS OF INTL

• Not self-evident who may be the subject of
  international rights and duties
• Subjecthood procedural rights and obligations
  ability to make international claims before int.
  judicial tribunals and the obligation to answer
  to such claims
• ability to make treaties, participate in
  multinational events, accountability, immunity,
  be part of INTL creation, etc.
• The recognition or acceptance of states is
  important bilateral and multilateral effects

23
States

• most important subjects
• accepted statehood brings the capacity to act
  internationally as a state
• territory, sovereignty, permanent population,
  government, independence

24
Other territorial entities

• operating as an independent entityTaiwan, still
  formally part of China
• Palestinian Autonomous Area
• Autonomous components of existing states Åland,
  Quebec, Northern Ireland

25
International Organisations

• General UN
• Regional OAU, OAS, EU
• Organisation within organisation UNESCO
• Economic WTO, OECD
• MaritimeIMO
• Military NATO
• Migration IOM
• Two-party UK-Ireland Decommissioning Body
• Multi-party Mekong River Commission

26
Individuals

• originally no subjecthood on international level
• development of body of HR law on international
  level
• development of personal criminal resposibility on
  the international level
• Setting up of ICC nationals may be made subject
  to the jurisdiction by a non-state entity
• Universal jurisdiction over international crimes
  Pinochet -case

27
Other international subjects

• miscellaneous groups to some extent
• Sovereign Order of Malta
• - international contracts between states and
  private entities tend to give some features of
  international subjecthood to private entities

28
III SOURCES OF INTERNATIONAL LAW

• all legal systems inevitably must have some
  criterias with which one is able to recognise
  legal norms, the body of law
• how are the legally binding norms established
• what are the legally binding norms
• National level legislator, case law, Supreme
  Courts, Common law customary law

29
Art. 38 of the ICJ

• Classical list of souces of INTL
• International Conventions
• International Custom
• General principles of law
• Judicial decisions, writings of scholars (most
  highly qualified), subsidiary
• - not extensive list, no binding hierarchy of
  souces but a descrition on what kinf of materials
  the ICJ utilize in applying international law

30
SOURCES

• Formal the process through which legal rules
  become binding, how binding obligations are born
• Material the substance of legal obligations
  they tell what is the content of legally binding
  obligations
• - International conventions are the only means
  through which states can intentionally create
  INTL

31
SOURCES Treaties

• a) Treaties are based on the free will of the
  states
• States can be obliged by a Treaty only when it
  has given a specific act of acceptance to take
  the obligations inluded in the Treaty
  signature/ratification
• A Treaty is binding only with regard to the
  parties of the Treaty
• Exception Border Treaties binding erga omnes
  (ie. towards rest of the international community)

32
SOURCES Treaties

• b) When a state has given it acceptance
• Treaty is binding on the parties
• Treaty does not bind other states, unless it has
  become either entirely or partly widely accepted
  through customary INTL

33
SOURCES Treaties

• c) If the Treaty is ment to codify already
  existing customary INTL (eg. Vienna Convention on
  Diplomatic Relations, 1961, almost all states
  parties to it)
• - Treaty has general applicability, since based
  on customary INTL

34
SOURCES Treaties

• d) Multilateral Treaties may codify or even
  further develop INTL
• often the intention of the states parties is that
  the Treaty would in future be binding on all
  states
• eg. Convention on the Law of the Sea (adopted
  1982) catalytic effect to INTL

35
SOURCES Treaties

• - parties are always obliged
• states not parties obliged only with regard to
  those Treaty provisions which are contained in
  the customary INTL
• if state practise later on develops to the same
  direction as the treaty indicates, the Treaty may
  emerge into customary INTL then also States not
  parties become obliged by the entire Treaty
  general applicability
• example Convetion on the Law of the Sea
  crystallized the principle on economic zone
  today this provision is binding as a rule of
  customary INTL (confirmed by the ICJ in Tunisia
  vs. Libya case 1982)

36
SOURCES Treaties

• In order for a Treaty norm to become generally
  obliging, it has to have
• general applicability
• the intention of it must be to serve as a basis
  for further state practise in future
• states must consider it as legally binding
  (opinio juris)

37
SOURCES Custom

• one of the cornerstones of INTL
• legally binding norms which emerge from the acts
  of states (state practise) and from the customs
  of states
• establishes general principles of law

38
SOURCES Custom elements

• State practise
• the actual activites/passivity of states
• statements in practical situations
• general statements concerning legal principles
  eg. when accepting UN GA resolutions

39
SOURCES Custom elements

• b) Consistency/uniformity of State practise
• - must be continuing and uniform (Lotus case)
• requirement of uniformity is not absolute varies
  according to substance
• The more profound norm of INTL is in question,
  the stricter the requirement of uniformity is
• positive obligation more strict U requirement
• negative obligation less strict U requirement

40
SOURCES Custom elements

• c) Generality of State practise
• common to a considerable number of states
• not necessarily common to all states

41
SOURCES Custom elements

• d) The duration of State practise
• differ a line of activities of states indicating
  state practise
• even a short duration is not an obstacle for the
  emergence of customary norm (the law of outer
  space)

42
SOURCES Custom elements

• e) Opinio juris
• states must recognise the general, uniform and
  continuing state practise as legally binding
• to the state practise must be attached with opino
  juris indicating that the case is about legally
  binding custom (Lotus case, North Sea Continental
  Shelf case)
• Proof ?

43
SOURCES Custom elements opinio juris

• How to verify its existence ?
• certain way of behaviour by states is not
  sufficient as such needs a separate
  verification Nicaraqua case para. 186 31
• somewhat theoretical construction

44
Jus cogens (peremptory norm)

• customary rules of fundamental nature no
  derogation accepted
• always take priority over treaty obligations
  (Vienna Convention, Art.64)
• no general agreement on what rules have attained
  this level
• prohibition of the use of force
• equal sovereignty of states
• prohibition of crimes against humanity
• the right to self-determination
• prohibition of genocide and slavery
• freedom of the high seas
• pacta sunt servanda (treaties are binding in law)

45
Sources

• Recent developments
• - treaty law have become the main source of INTL
• - It is easier to deduce accurate legal rules
  from treaty based INTL
• - The number of international treaties have
  increased rapidly (need for them have increased)
  the areas not regulated by international treaties
  narrow

46
Sources

• If the same matter is regulated both by customary
  INTL and treaty law, and the state is party to
  the Treaty, the state is bound by both. If
  contradiction arises in such a situation
• If the treaty has been enacted later than the
  customary norm has been established, the treaty
  prevails over the customary norm, unless it has
  the nature of jus cogens
• if customary norm has been established later than
  the treaty, it prevails over treaty only
  exceptionally
• Art. 53 of the Vienna Convention jus cogens
  norm prevails always over treaty

47
Sources

• Acts of states do not have constituting effect
  establishing new customary rule even if repeated
  often, if they are in violation of jus cogens
  norm
• change is possible only if a new norm of jus
  cogens arises, which modifies the content of old
  jus cogens norm

48
IV RELATION BETWEEN INTL AND MUNICIPAL LAW

• INTL regulates relations between sovereign
  states (but remember other subjects of INTL)
• Municipal law regulates relations between the
  subjects of a sovereign state
• Overlapping systems INTL establishes rights and
  duties obliging also individuals (HRs, war
  crimes)

49
RELATION BETWEEN INTL AND MUNICIPAL LAW

• Lack of enforcement system in INTL enforced
  often through national courts national law has
  impact on effectiveness of INTL and lawfulness if
  international action
• cases Brazilian Loans, PCIJ 1929, p. 124.
  107
• Barcelona traction, ICJ 1970, para50. 108
• INTL LAW of the Sea has an impact on the
  evaluation of the width of the jurisdiction of
  the state in criminal matters
• One can deduce from INTL rights to an individual,
  to which one can resort before a national court

50
RELATION BETWEEN INTL AND MUNICIPAL LAW Monism

• Both INTL and national law are included to the
  domestic legal order
• INTL have supremacy over national law in case of
  a contradiction INTL HR LAW
• Separate incorporation not necessary for domestic
  applicability
• Monistic systems eg. Netherlands, Estonia

51
RELATION BETWEEN INTL AND MUNICIPAL LAW Dualism

• INTL and National separate if contradiction,
  national law has supremacy
• INTL responsibility, even if acting in conformity
  with national law
• Rights and duties do not automatically transfer
  into other system separate incorporation into
  domestic system needed

52
V INTERNATIONAL TREATIES

• Vienna Convention on the law of treaties 1969
  codification, has the nature of customary INTL
• What is a Treaty ? (VC art. 2)
• international agreement
• between states
• written form
• governed by international law
• Case Qatar v. Bahrain, ICJ 1994 (Jurisdiction-
  First phase), para 25.) 57

53
INTERNATIONAL TREATIES Will confirmation

• Full powers either by providing proper
  authetification or state practise/circumstances
  establish intention that the person acting had
  full powers
• Lack of powers no legal effect, but can be
  confirmed afterwards by a state
• Consent to be bound signature, ratification,
  accession

54
INTERNATIONAL TREATIES Entry into force

• After signing but before entry into force
  Obligation not to defeat the object and purpose
  of the Treaty (VC Art. 18) may indicate state
  practise even before entering into force
• Provided by the treaty or otherwise agreed
  between states
• If no agreement or treaty provision as soon as
  all negotiating states have ratified (consent to
  be bound) example US letter of non-intention
  66
• No retroactivity main rule, if not otherwise
  intended

55
INTERNATIONAL TREATIES Third states

• If no consent no obligation/right
• If a treaty provision is/ becomes a rule of
  customary INTL binding on third states (VC on
  state succession, 1978,art. 38)
• State succession Boundaries remain, otherwise
  white board for a new state
• 
  71,72
• VCS 1978 art.12 customary INTL rule 70

56
INTERNATIONAL TREATIES Reservations

• Express statement state does not accept some
  provisions of the treaty
• ICJ Advisory Opinion 1951, Reservations to the
  Genocide Convention reservation possible if
  compatible with the object and purpose of the
  Convention 74
• ECHR, Belilos v. Switzerland 1988 reservation
  that was too wide in scope was not valid 76
• Legal effect modifies treaty if not objected
  (VC art. 21) 78 79 81 82

57
INTERNATIONAL TREATIES Interpretation

• In good faith
• In ordinary meaning of the terms of the treaty
• In context
• In the light of its purpose and objects
• What is context VC art 31 84
  85
• Contracting out from jus cogens ? 91
• Obligations erga omnes towards intl. community
  as a whole (ICJ Barcelona traction case )
  93

58
INTERNATIONAL TREATIES invalidity, termination

• Notification to other states parties
• Invalid treaty has no legal force
• Invalidity and termination must be in accordance
  of the Treaty, if state has been boubd by it

59
VI INTERNATIONAL ORGANISATIONS

• Diplomacy was not enough international
  conferences to deal with multilateral problems
  ending wars (Peace of Westphalia 1648, Congress
  of Wienna 1815)- regularity of the conferences-
  periodisation Balkans (Paris Conference 1856,
  Berlin gathering), Africa (Berlin Conferences
  1884-5)
• Int. NGOs Red Cross 1863, ILA 1873

60
INTERNATIONAL ORGANISATIONS

• Impact
• state practise within organisations INTL
• treaty interpretation

61
INTERNATIONAL ORGANISATIONS

• Liability of member states
• debts and delicts if legal personality , then
  organisation
• if no separate legal personality, then member
  states
• complex issue
• Privileges and immunities

62
INTERNATIONAL ORGANISATIONS Universal

• League of Nations 1919 Promotion of
  international co-operation, peaceful resolution
  of disputes, sovereignty and independence of the
  member states, sanctions
• weakness each member state concluded whether a
  violation had taken place and whether to resort
  sanctions
• Failed to to take effective measures formally
  dissolved 1946

63
INTERNATIONAL ORGANISATIONS Universal

• The United nations San Fransisco Conference
  1945, so far success
• GATT 1947-8 Havana Conference, different GATT
  rounds, Uruguay round 1986 led to the
  establishment of the WTO in 1994, and GATT
  continued until the end of 1995

64
INTERNATIONAL ORGANISATIONS Regional

• WEU 1948- now integral part of EU as defence
  component
• NATO 1949
• Warsaw Pact
• Arab League 1944
• ASEAN 1967
• OAS 1948 also collective security system
• OAU 1963
• EEC-EU, 1951-1957-1992

65
INTERNATIONAL ORGANISATIONS Regional Europe

• CoE 1949
• OSCE 1975, from conference to organisation 1995
• CIS- some of the former Soviet republics

66
INTERNATIONAL ORGANISATIONS UN

• Security Council
• maintaining int. peace and security
• UN Charter ch. VII SC powers to act on behalf of
  all states
• UN Charter Art. 39 IF SC concludes that there is
  a threat to peace, breach of peace or an act of
  aggression, it may resort to measures under Art.
  41 and 42
• interim measures under Art.40 until decision
  under Art. 39 has been made

67
INTERNATIONAL ORGANISATIONS UN

• What kind of activities may come under Art. 39 ?
• military action or the threat of it
• unstable internal situation in a state
  South-Africa, Rhodesia, Liberia, Haiti, Rwanda
• state terrorism/support to terrorism (Libya
  1992/93)
• No general set of rules binding SC SC decides
• SC has primary responsibility to maintain
  international peace and security

68
INTERNATIONAL ORGANISATIONS UN

• UN Charter ch VII SC action possibilities
• recommendations
• provisional measures
• sanctions (art. 41) Binding on UN member states
• no armed force trade boycott (Haiti, not in
  force anymore), arms trade embargo (Liberia,
  Rwanda), flight restrictions(Libya),
• cutting off economic and diplomatic relations,
  other restricted measures

69
INTERNATIONAL ORGANISATIONS UN

• Peace enforcement, art. 42
• SC may take a military action, which is necessary
  to maintain or restore international peace and
  security, preceding violation of INTL by the
  target of the operation is not a necessary
  requirement
• Example SC authorised NATO to take all necessary
  action to implement Dayton agreement (Bosnia,
  Kosovo was not inluded to the agreement)

70
INTERNATIONAL ORGANISATIONS UN

• SC has power to authorise states to act on its
  behalf
• 1950 recommended all member states to provide
  military assistance to South-Korea under the UN
  operation after North-Korea had attacked de
  facto a US led and conducted operation
• 1966 authorised UK to keep up the oil embargo of
  Rhodesia
• 1990 (over 20 resolutions) authorised the member
  states to take all necessary action to restore
  the sovereignty of Kuwait (29 states
  participated)
• 1993 authorised UN forces in former Yugoslavia to
  take all necessary action to protect civilian
  population 1995 the task was delegated to NATO
• 1993 authorised the UN forces in Somalia to take
  all necessary action to protect UN forces against
  attacks

71
INTERNATIONAL ORGANISATIONS UN

• UN General Assembly
• Represents all states
• No powers to make legally binding decisions
• 1950 Uniting for peace resolution If SC was due
  to a veto unable to take care of its primary
  responsibility to maintain peace and security, UN
  GA will take the issue immediately under its
  consideration to give necessary recommendations
  to member states for collective action however,
  use of force remains as a sole power of the SC
  (presently does not have importance, used to get
  issues under discussion before the GA
• 1956 UNEF peace keeping operation in Egypt after
  Suez crisis it was not a sanction, since Egypt
  gave its permission for the operation, therefore
  SC authorisation was not necessary

72
VII Peaceful settlement of disputes

• UN Charter 2(3) Art. obligation not to endanger
  peace and security- obligation to resort to
  peaceful settlement of disputes, if they endabger
  peace and responsibility
• no general responsibility for dispute settlement
  if done- must be peaceful
• usually ICJ does not have compulsory jurisdiction
• provided that HRs and UN SC resolutions are not
  violated (Flight restrictions over Iraqi Kurd
  areas) states have the right to use force in
  their internal disputes

73
Peaceful settlement of disputes

• dispute may be international even if the parties
  are not states (eg. Bosnian Moslems, Serbs and
  Croats)
• Measures negotianions, mediation, good offices,
  fact-finding, settlement by the UN, regional
  organisations, arbitration, ICJ, other int.
  courts, Permanent Court of Arbitration etc.

74
Peaceful settlement of disputes

• International Court of Justice
• - legal disputes
• 4-5 cases /year, 15 judges elected by the UNGA
  and SC 1 judge from every permanent member of
  the SC (no possibility to use veto in election)
  10 judges are chosen from the candidates proposed
  by the member states of the Permanent Court of
  Arbitration in practice judge from all
  continents
• the composition of the ICJ must reflect the main
  forms of civilization of the world

75
Peaceful settlement of disputes

• ICJ is a UN body
• The statute of the ICJ is a part of the UN
  Charter
• only states may be parties to a case before the
  ICJ
• either compulsory or ad hoc jurisdiction
• advisory opinions UN or its special
  organisation are not legally binding

76
VIII INTERNATIONAL HUMAN RIGHTS

• - Guaranteed in international human rights
  treaties
• define minimum standards
• margin of appreciation(ECHR)
• international supervision mechanisms only add to
  domestic one domestic supervision primary

77
International supervision of HRs

• ECHR
• ICCPR
• ICESCR
• UN Convention on the rights of the child
• UN Convention on the rights of women
• UN Convention on the elimination of all forms of
  racial discrimination
• UN and CoE conventions against torture
• ILO Treaties

78
WHO IS ACCOUNTABLE ?

• State and its authorities
• Domestic courts in a key role provisions
  guaranteeing fair trial important
• International HR bodies not a fourth instance
  they do not have powers to abrogate domestic
  decisions

79
Supervision mechanisms

• Individual complaint
• Collective complaint (EU social charter)
• Reporting
• Hearing of NGOs
• Fact finding missions

80
IX USE OF FORCE

• UN Charter 2(4) Art.. use or threat of force is
  prohibited against
• territorial integrity
• political independence
• any other manner inconsistent with the purposes
  of the UN
• all states have accepted this
• exception UN Charter Art. 51 allows use of force
  for self-defence

81
USE OF FORCE

• Restrictive interpretation of Art. 51
• self-defence acceptable (also in an area of the
  aggressor state) if it does not lead to a
  permamnent occupation or loosing of territory
• provided that it does not endanger target states
  independent decision-making
• and is not inconsistent with the purposes of the
  UN

82
USE OF FORCE

• also accepted
• rescuing citizens (Entebbe)
• protection of HRs (no-fly zones in Iraq)

83
USE OF FORCE

• Customary right to self-defence
• Counter measure against armed aggression
• Eliminating imminent threat of armed aggression
  (the bombing of Iraqi nuclear installation in
  1982 by Israel)
• Counter aggression or threat against nationals,
  property or rights guaranteed under INTL
• non-armed aggression (economic, propaganda)
  necessitating immediate counter-measures

84
USE OF FORCE

• Restrictive interpretation of UN Charter Art.51
  also customary right to self-defence have been
  limited
• if so, only against armed aggression
• not clear which one of the interpretations is
  correct state ptactise , which is contraversary

85
USE OF FORCE Humanitarian intervention ?

• Definition state A may use forcible measures in
  the area of state B, even if B resists
• Preconditions
• a) Intervention have to be accepted by an
  international organisation (UN or regional)
• b) only in cases of gross violations of HRs
• Inconsistent state practise (Iraq, Rwanda,
  Cambodia 1979
• Problem subjective element of the intervening
  state misuse easy KOSOVO ?

86
X Humanitarian law

• Norms that seek during armed conflict to
• protect persons who are not or are no longer
  taking part in the hostilites
• restrict the methods and means of warfare
• War crimes also grave breaches during internal
  conflict
• Geneva 1949 Conventions and additional protocols
  1977

87
Humanitarian law

• Basic obligations
• distinction between civilian population and
  combatants
• prohibited to wound surrenderers or those unable
  to take part to the fighting anymore
• distinction between civilian targets and military
  targets
• only military objectives can be targeted

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XI State responsibility

• Responsibility for wrongful acts in all legal
  systems
• State responsibility preconditions for a legal
  state responsibility for violating an obligation
  under international law, and its conseguences
  (duty to compensate)
• arises when a state has violated an obligation it
  has vis-a-vis another state
• eg. violation of a treaty obligation, customary
  law, legally binding int. decision, maltreatment
  of nationals of another state, valid decision of
  an int.organisation (UN SC)

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State responsibility

• Basic precondition illegal act, for which a
  state is accountable for
• - example UN SC resolution 687 Iraqi oil sold,
  and the income is used to pay compensation for
  damage caused by illegal occupation of Kuwait by
  Iraq

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How to analyse legal cases

1. Read quickly the case as a whole
2. On the second reading identify the facts that are
   relevant for applying the law into the case
3. Structure your analysis issue by issue
4. Lastly read the case once again and compare your
   analysis to the facts so you dont miss anything
   and that you have understood the facts correctly

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XII THEORIES OF INTERNATIONAL LAW

• idealism realism Kant-Carl Schmitt/Hans
  Morgenthau
• empirism/positivism explaining social phenomena
  by using empirical method
• essentialism/normativism revealing the essence
  of different social entities, positivism
• Marxism revolution
• structuralism revealing structural antagonisms
• post-modernism deconstructing traditional
  dominating structures
• Critical legal studies (CLS) to explore the
  manner in which legal doctrine and legal
  education and the practices of legal institutions
  work to buttress and support a pervaisive system
  of oppressive, inegalitarian relations to develop
  radical alternatives.