International law notes

International law notes

Principles of Public International Law

International humanitarian law (IHL) is a branch of public international law. To fully understand how IHL works and operates, it is important to understand the basic structures, principles and rules of public international law.

What is public international law?

Public international law is a combination of rules and customs governing relations between states in different fields, such as armed conflict, human rights, the sea, space, trade, territorial boundaries, and diplomatic relations. The United Nations Charter sets out the fundamental principles of modern public international law, notably:

1.      Promotion of human rights;

2.      The strict limitation on the right to use force against other states;

3.      The strict prohibition on the acquisition of territory by force.

Subjects of international law

States are the primary subject of international law. However, international law can also regulate the actions of other entities, namely: international organizations, non-state actors (including national liberation movements and individuals), international non-governmental organizations, and multinational companies. All can be defined as subjects of international law, and can be considered as having legal personality. This means that they have both duties and rights provided for by international law.

Public international law and the protection of human dignity

Several branches of public international law combine to protect universal values relating to human dignity. Each represents a tool of protection and all should be considered as complementary and must be applied comprehensively. These branches are: international humanitarian law, international refugee law, international criminal law and international human rights law.

What is the difference between public international law and private international law?

Public international law comprises a body of rules which is concerned solely with the rights and obligations of sovereign states. For example the United Nations Charter is a central instrument of public international law.

Private international law, also referred to as ‘conflict of laws’, consists of rules which govern relations between private entities and decide which domestic law and/or courts can adjudicate issues with an “international” component. For example, if a Chinese company was to sign a contract with the United States, private international law would regulate the applicable law if that contract was violated.

Relationship between domestic and international law

The relationship between domestic and international law on a procedural level can be complex, particularly where a national court is applying international law directly. It is important to remember that domestic law cannot be used as a justification for a failure to meet an international responsibility.

In the words of Hersch Lauterpact, who is recognized as one of the founders of modern international law: 

"The self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.”

Sources of international law

The norms and rules of international law are codified in a range of treaties and other materials. The main sources of international law are:

Treaty law: Such as the United Nations Charter and the Geneva Conventions;

Customary international law: Established by state practice and legal intention;

General principles of law recognized by civilized nations: Seen as inspirational rather than direct sources of the law. Examples of this are the principles of estoppel and equity.

State responsibility

One of the fundamental principles of  international law provides that any state that violates its international obligations must be held accountable for its actions. More concretely, according to the notion of state responsibility, states that do not respect their international duties are obliged to immediately stop their illegal actions and make reparations to the injured parties. The principle of state responsibility forms part of international customary law and is binding upon all states.

Third States also have an obligation not to assist other states who are violating international law, and have a legal duty under Common Article 1 of the Geneva Conventions to ensure respect for IHL.

Grave violations of international Law: Jus cogens and erga omnes obligations

A number of rules of international law reflect "jus cogens" norms, also referred to as peremptory norms of international law.
Jus cogens status is reserved for the most fundamental rules of international law, which are recognized and accepted by the international community as rules of which no exceptions are allowed (article 53 of the Vienna Convention on the Law of Treaties). All states are obliged to adhere to jus cogens rules at all times, regardless of the circumstances, and these rules cannot be superseded by international agreements or treaties. 

Examples of jus cogens norms include the right of all peoples to self-determination, the prohibition on the acquisition of territory by force and the prohibition on genocide, slavery and torture.

Erga omnes

The violation of a number of provisions under international law - usually those that are categorized as jus cogens rules - gives rise to "erga omnes" obligations. Erga omnes is a Latin concept that translates as "towards all". When fundamental principles of international law are violated, an erga omnes obligation arises, meaning that all states have the right to take action. Examples of acts that would give rise to erga omnes obligations include piracy, genocide, slavery, torture and racial discrimination.
In July 2004 the International Court of Justice found "the right of peoples to self-determination" a be an erga omnes norm of international law.

Sources of International Law

The main sources of international law are treaty law, international customary law and general principles of law recognised by civilised nations.

Treaty law

Treaties and Conventions are written agreements that states willingly sign and ratify and as such are obliged to follow. Such agreements, which are also called statutes or protocols, givern the mutual relations between states. They are, however, only binding on those states that have signed and also ratified the particular treaty.  

The Vienna Convention of the Law of Treaties of 1969, sets out the fundamental legal rules relating to treaties. The Vienna Convention defines a treaty, identifies who has the capacity to conclude a treaty, and outlines treaty interpretation, disputes, and reservations.
The basis of treaty law is  ‘pacta sunt servanda’, which means that agreements must be honoured and adhered to.

Reservations, declarations and derogations

Many states are involved in the process of drafting a treaty, which often includes stark disagreement on the scope and content of the agreement. In order to increase the number of signatories and ratifications of a treaty, and hence global order, international law does allow for states to limit the full application of a treaty, or clarify their specific understanding of the legal content. This is done through reservations, declarations and derogations.

Reservations are defined by the Vienna Convention as:

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 to modify the legal effect of certain provisions of the treaty in their application to that State. (Article 2 (1)(d))

Only specified reservations are permitted and they cannot undermine the object and purpose of the Treaty.
For more information on treaty reservations see the website of the International Law Commission.

Declarations, unlike reservations, do not affect legal obligations, but are often made when a State expresses its consent to be bound by a specific treaty. The State uses the declaration to explain or clarify its understanding of particular aspects of the treaty text.  

For examples see the reservations and declarations made to the Fourth Geneva Convention.

Some treaties, especially human rights treaties, provide for a derogations system, which allow for a state party to temporally suspend or limit their legal obligations in exceptional circumstances, for example during armed conflict or national emergency. For example, the freedom of assembly may be limited during times of armed conflict. However, some rights can never be derogated from under any circumstances, notably the prohibition on torture, inhumane and degrading treatment.

For more on derogations and human rights law see the website of the Rule of Law in Armed Conflict Project.

It is important to note that international humanitarian law (IHL) does not have a system of derogation , as it is a body of law specifically designed to provide minimum protections during armed conflict. 

Customary international law

Customary international law is made up of rules that derive from "a general practice accepted as law". Customary international law is comprised of all the written or unwritten rules that form part of the general international concept of justice.

Unlike treaty law, which is only applicable to those states that are parties to the particular agreement, customary law is binding upon all states, regardless of whether they have ratified a treaty.

Unlike treaty law, customary international law is limited in that it is not codified in a clear and accessible format and the content of the rules is generally less specific that what you may find in a treaty. However, as a source of IHL, customary international law is of fundamental importance in armed conflict due to the limited protections afforded to internal conflicts by treaty law and the lack of ratification of key treaties. Customary international law exists independently from treaty law and in 2006 the Independent Commission of the Red Cross (ICRC) published a collection of the rules of IHL considered to be customary in nature. They identified 161 Rules of customary international law.

 To the ICRC Customary International Law Database 

How does a rule become customary international law?

When states respect certain rules consistently in their international and internal relations, with legal intentions, these practices become accepted by the international community as applicable rules of customary international law. 

There are two criteria for identifying a rule as part of customary international law: state practice (usus) and legal nature of that practice (opinion-uris)

State practice (usus) - Customary law is confirmed through the behaviour of states (objective criteria), manifested through their official statements and actions.

Legal nature of practice (Opino Juris) is the expressed opinion of states, individually or collectively, that their actions have a legal and not a mere policy basis.

In short, customary international law is based on consistent actions by the majority of the international community. Examples of customary international law are the prohibition on the arbitrary deprivation of life, the prohibition on torture, and the rule that civilians and civilian objects cannot be the subject of direct attacks during armed conflict.

International Law and Self-Determination

The right of all peoples to self-determination is one of the core principles of international law and, by virtue of its erga omnes status, it is the responsibility of all states to ensure that this right is realised. The obstruction or violation of this principle, particularly through the use of force, constitutes a very serious violation of international law.

UN Charter definition

In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of all peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law. Article 1, common to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), reaffirms the right of all peoples to self-determination, and lays upon state parties the obligation to promote and to respect it.

The right to self-determination was first recognised in the context of decolonisation. However, numerous human rights instruments, including conventional law, as well as several GA Resolutions and state practice, have extended its application beyond the colonial context, for example to South Africans under the apartheid regime.  Some scholars also affirmed its application to analogous cases, such as peoples under belligerent occupation. 

Criteria for the right to self-determination

 A people can be said to have realized its right to self-determination when they have either 

1.  Established a sovereign and independent state; 
2.  Freely associated with another state or
3.  Integrated with another state after freely having expressed their will to do so. 

The definition of realization of self-determination was confirmed in the Declaration of Friendly Relations. 

The principle of self-determination outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognized as erga omnes, namely existing towards the international community as a whole. The International Court of Justice (ICJ) has recently reiterated the erga omnes status of the general principle of self-determination in its Advisory Opinion on the Wall. Additionally, scholars and commentators have indicated that the principle has acquired the status of jus cogens – a peremptory norm of international law.

Self Determination

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”

(The United Nation General Assembly Resolution 2625 (XXV):  Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970)

Enforcement of International Law

Looking at the events taking place across the globe today it is clear that a large number of states are repeatedly violating their international obligations. In the absence of a global police, states at times act as if they are above the law. However, international law does set out clear consequences for when the law is broken, and these consequences are on both the collective and individual level.

In addition to setting out prohibitions, such as torture or targeting civilians in an armed conflict, international law also outlines the legal ramifications for states when such acts occur.

Under international law, legal consequences can be broadly divided between state responsibility and individual responsibility.

State responsibility

Enforcement of international law can be divided into what the violating state must do itself and what others, namely states, must do.

The norms on state responsibility can be broken into two categories:

·         Firstly the rules relating to all violations of international law;

·         Secondly, the elevated level of rules especially directed towards third states when dealing with particularly serious or grave violations of international law.

i. General Rules on State Responsibility

Before the consequences of violations are discussed it is important to remember that obligations must be respected. Without respect, rules becomes meaningless. The notion of respect for international obligations finds expression in the Vienna Convention on Law of Treaties (1969). The notion of respect extends beyond the basic obligation to refrain from illegal conduct. Many international treaties include obligations to ensure respect for the law.

1. What are the general responsibilities of a state violating international law?

The basic principle of “state responsibility” in international law provides that any state that violates its international obligations must be held accountable for its acts. More concretely, the notion of state responsibility means that states that do not respect their international duties are obliged to immediately stop their illegal actions and make reparations to the injured.

The rules on state responsibility identify when a state can be held responsible for violating those obligations, and what the consequences are if it fails to fulfill its responsibility.

Key questions

1. When does a state violate international law?

A state violates international law when it commits an “internationally wrongful act", a breach of an international obligation that the state was bound by at the time when the act took place. A state is bound to act according to international treaties it has signed as well as rules of customary international law.

2. Towards whom is a state responsible?

States have legal responsibilities both towards other states and individuals according to different sources of international law.

3. For whose actions is a state responsible?

In international society it is not always easy to identify who is committing a violation of international law. As a consequence, questions may arise as to which actions exactly is a state liable. These questions may include:

• May a state be held responsible if its soldiers, in situations of armed conflict, commit rape or other       sexual assaults even when they are off duty?
• When may a state be responsible for terrorist groups operating from within its territory?
• May a state be responsible for violations committed by private security firms?

The general rule is that a state is responsible for all actions of its officials, de facto and de jure. In addition, states have positive obligations to prevent abuses from being committed against people under their jurisdiction. For example, in the event that a life is lost as a result of violence between two gangs, the state may be in violation of its international obligation to respect the right to life if it fails to undertake a serious and effective investigation into the killing.

The complexities of the issue would also need to be considered on a case by case basis to decide if the state is responsible, by act or omission, for the given action of an individual or group. 

4. What should a state do if it violates international law?

If a state violates international law it is responsible to immediately cease the unlawful conduct and offer appropriate guarantees that it will not repeat the illegal actions in the future. The state also has a responsibility to make full reparations for the injury caused, including both material and moral damages.

5. What should third states do if another state violates international law?

i. Third states violate international law if they aid or assist violations of international law committed        by another state. International Humanitarian Law (IHL), through Common Article One of the              Geneva Conventions, sets out the obligation on third states to ensure respect for IHL in all                  circumstances.

ii. Serious Violations of International Law and State Responsibility

International law also sets out obligations that arise when a state commits a serious breach of international law. These obligations are triggered when the serious breach constitutes the violation of a peremptory norm of general international law. Peremptory norms are norms accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Third states have elevated obligations where peremptory norms are breached. The seriousness of the violation of a peremptory norm necessitates a collective response to counteract the effects of the breach of international law. These obligations include:

Non-recognition;

Non-assistance;

Cooperate to bring to an end the violation in question.

The rationale for these heightened obligations is the gravity of breaches of peremptory norms which affect the international community as a whole. 

The Geneva Conventions through its grave breaches regime sets out specific obligations for third states when grave breaches of IHL occur.

b. Individual responsibility

Legal consequences of violations of international law are not limited to those under the purview of state responsibility. Certain violations of international law can entail individual criminal responsibility. Persons who aid, abet, order, supervise and jointly perpetrate international crimes can be held individually responsible.

International crimes are divided in three groups:

• War Crimes (serious violations of IHL)
• Crimes Against Humanity
• Genocide

Pacta Sunt  Servanda

A State is bound to act in accordance with international customary law, and follow any international treaty it has signed and ratified. This is a fundamental principle in international law called “pacta sunt servanda” - agreements must be respected - which follows both from the Vienna Convention on the Law of Treaties, and international customary law. International humanitarian law (IHL) conventions and human rights treaties are examples of sources of a state’s international obligations.