Topics examined: Sources of international law; criterion of statehood; international law centred on state interests; sources and subjects

of law; Introduction to Public International Law Definition: International law is the body of rules which are legally binding on states and other entities which are recognized as possessing international personality in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organizations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law. Framework to international cooperation. No one country can act alone in this era of globalization. Principal features of the International Legal System: o limited participants and focus on the state has implications on the creation and enforcement of IL and recognition of other entities. o indeterminate nature of the sources of international law o the consensual nature of IL Primarily horizontal, not hierarchical. State has to accept obligations. Self limitation. o Judicial decisions comprise only a subsidiary source of international law. compromise between civil law and common law. o Absence of central legislative authority decentralization of legal functions. o collective responsibility Government breaching IL, entire country suffers o Relative absence of effective sanctions use of force is frowned upon. Success of IL depend on political will. IL has two components, customary IL and agreements (treaties). IL cannot be unilaterally challenged, States must agree to ICJ jurisdiction. Role of reciprocity. It is in a states interest to not pursue courses of actions which might bring short-term gains but disrupt reciprocal tolerance. States are induced to act reasonably so that other states will do the same, unless it feels that the only method is to violate IL. Role of rewards. Observance of IL encourages others to side with it in the event of a conflict. Doctrine of consensus- reflects influence of majority in creating new norms. Historical development o 18th century, mostly to do with acquisition of territory o 19th century, rooted in Western European values. WE bias. Eurocentrism. o 20th Century, GWs, colonial independence, international cooperation, review and regulation. Competing ideas of IL. UN established. o 21st Century, Addressing non-state actors, human rights, transnational companies, new areas- outer space, internet.

Participants and Actors in the Legal System Participants have legal personality capacity to be bearer of rights and duties under international law Crawford, Creation of States in IL and capacity to maintain rights by bringing international claims Different entities have different rights and duties, eg states have full set of rights and duties, whereas individuals have much narrower set of rights and duties.

STATES PRIMARY ACTORS (ORIGINAL ACTOR) the formation of a new states is a matter of fact, and not of law. only states can apply for arbitration at ICJ enjoy exclusive discretionary right to pursue claim on behalf of citizen against another state. What is a state? Montevideo Convention on Rights and Duties of States, 1933 criteria: permanent population, defined territory, government and capacity of enter into relations with other States. o Permanent population: no minimum number o Defined territory: no minimum area. Need not be properly defined, can have some in dispute as long as there is a consistent band of territory that is undeniably controlled. Limited by Uti Possidetis (principle of territorial integrity) as you possess thus may you possess. Unilateral secession cannot change existing boundaries without the consent of the other State that is it seceding from. It is a prionciple designed to control the exercise of self-determination, especially in the context of decolonization. ICJ advisory Opinion on Kosovo, Judge Trinidade no state can invoke territorial integrity in order to commit atrocities, a states territory cannot be used by its authorities for the pursuance of criminal policies in breach of jus cogens prohibitions. situation may change if human rights are breached. o Effective government: independent of any other authority and enjoys legislative/administrative competence. Effective control. Absence of effective government will not nullify statehood. Independence.. is really no more than the normal condition of States according to IL; it may also be described as sovereignty, or external sovereignty, by which is meant that the State has over it no other authority than that of IL. o Capacity to enter into relations with other entities depends on recognition by other states. Entity is entitled to enter into IR, but if other states decline to do so with it, entity has been declined opportunity to demonstrate this capacity. Statehood is not affected if state hands some rights over to another state (Monaco-France, MP). Existing states may refuse to recognize state if the former attained statehood is in violation of IL. Non recognition of conquest. BUT territory acquired by legit use of force and then annexed, may be legal.

Political self-determination. Political future of a territory is determined in accordance to the wishes of inhabitants. Rights to self determination must not involve non-consensual changes to existing frontiers at time of independence. People should be able to freely determine their political status, and freely pursue their economic, social and cultural development. Independence capacity of state to provide for its own well-being. Right to exercise jurisdiction over own territory. Sovereignty. Recognition not a right. Usually out of political expediency. Formal acknowledgement by other states that regime in question is effective government and actually signifies a willingness to treat with it. Refusal to recognize a regime does not nullify statehood. Can have statehood but possible to not recognize government regime.

INTERNATIONAL ORGANISATIONS (EG UN, WTO) Constituent document and practice. Indicia of personality. Capacity of other states to engage in IR. UN officials can only carry out duties satisfactorily with an IL personality. International org. Principle of speciality, only effective within sphere of speciality

INDIVIDUALS Need to have procedural capacity has responsibility for international crimes. ICC.

OTHER ENTITIES (NON-GOVERNMENTAL ORGS, MULTINATIONAL COMPANIES, INDIGENOUS)

SOURCES OF INTERNATIONAL LAW Article 38(1) of the 1945 Statute of the ICJ o International conventions establishing rules expressively recognized by state o international customs- general practice accepted by law o general principles of law accepted by civilized nations o judicial decisions and teachings of highly qualified publicists Formal sources- what the law is (first 3) Material sources- where the law is found (JD and academic writing) Article 38(2) ex aequs et bono not just by strict rules of law, but by fairness/equity Axiomatic hierarchy Treaties o 1969 Vienna Convention on the Law of Treaties international agreement concluded between states in written form and governed by IL, whatever its particular designation. No universal application. o Agreements are binding (pacta sunt servanda) o signing is merely recognition, not binding until ratification o States can generally withdraw from treaties on giving 6month-1year notice and the treaty will no longer be binding on state o treaty may permit a state to object to a particular part of that treaty or a provision within that treaty.. that part or provision will not bind that state that has entered an objection (reservation) o May be multipartite or bipartite o Bipartite treaties do not create lesser law than multipartite, but latter have more influence to a point where provisions may become intl customary law. o Law-making treaties intended to have general effect, require large number of states to participate and may produce binding rules. Normative treaties. o Provision may constitute basis of rule, which accompanied by opinion juris, lead to creation of binding custom governing states. o Customary law and treaty law have equal authority, but if treaty conflicts with custom, treaty takes precedence unless explicitly stated otherwise. o If custom comes after treaty, custom prevails but parties may agree to adhere to treaty nonetheless. o Presumption that treaties are not intended to derogate from existing customary law and treaty which seemingly modifies custom should be construed as to best conform, not derogate from accepted principles of law unless treaty ecplicitly intend to change it. o Treaties generally not universal unless it establishes special intl regime or organization. o Cannot override if customary law is jus cogens. Customs law making procedure based on constant and uniform practice of states Universal application, dynamic process of law creation

two elements- material facts and psychological belief material facts- actual behavior/ practice of state psychological belief- opinio juris subjective conviction that belief is compulsory and not discretionary Duration no set time limit, length of practice not important Extent consistency and uniformity of practice is important, but inconsistency does not nullify custom. No, of states less consequential than identity of states involved. Some states carry more weight than others as their interests are greater. To attain legitimacy, custom must gain favourable response from leading states. Persistent objector rule- if state opposes CL from its inception, state will not be bound by it. Provided that the objection is sufficiently persistent, that state will not be bound by the rule. consent is inferred and silence is regarded as acquiescence. A state which becomes a member of IL after practice has become IC, is bound by it but may seek to amend it. Change is dependent on how wide and consistent support is. State practice is not enough to establish custom, need to have opinio juris. Opinio juris- subjective belief allegedly maintained by a state that a particular practice is legally required of them. Positivist- states are only bound by what it consents, so material<opinio juris Creation of new IC depends on consistency and uniformity of practice and the level of support Practice that is generally followed but states are free to disregard is not custom Onus of progg of OJ is on state relying on said custom. (Party alleging of existence of custom must demonstrate that custom is established that it is binding on that other party) To change/make customary law, other states need to respond. General principles Ambiguity provides discretion and imposes no constraint General principles like res judicata, common in most legal systems and municipal systems. Used for non-liquet situations (when there is no applicable law) to prevent cases from being shelved on grounds of absence of law. Equity sense of fairness, justice and reasonableness. Cannot be law, but can affect how law is applied. Subsidiary role. Subsidiary sources of law Judicial decisions no doctrine of stare decisis, not binding except between the parties and in respect of that particular case. Courts do it to maintain consistency and certainty. Contents of compromise needs to be examined before case is used a precedent. Parties in arbitration may instruct tribunal in terms of what laws to apply. Writing receded in importance

Other sources acts of international org. UN Resolutions, only procedural and budgetary are binding, all others are merely recommendations. Only have moral force but not insignificant. OJ can be derived from a nations vote in the UNGA Soft Law, non legally binding international instruments. Treaties containing general obligations, non binding resolutions, code of conduct, moral conduct. Can lead to hard law. Normative effect. Hierarchy of sources and jus cogens jus cogens- universally accepted norms of general IL which are of preemptory force and from which, no derogation may be made except by another norm of equal weight. Norm>Treaty, new norm develops, void existing treaty. Fundamental rights universally recognized. Rights against torture, genocides, right to self determination.

THE INTERNATIONAL LEGAL CONSTITUTION Prohibition against threat or use of force except for self defence (article 51, UN Charter), force authorized by UNSC. Self defence only justified if need was instant, overwhelming, immediate and no viable alternative action. State needs to bear burden of proof that is it under sttach. Article 2(4) UN Charter all members shall refrain in the IR from threat or use of force against territorial integrity or political independence of state. Peaceful settlement of disputes, Article 2(3), 33(1) 1945 UN Charter Principle of non-intervention o Friendly Relations Declaration 1970 o Objective, may intervene to provide humanitarian relief o Responsibility to protect ICISS: to prevent conflict and other causes that put population at risk, to react to situations of compelling human need, to rebuild after military intervention. Alleviation of suffering>state sovereignty. Need to be collective, evidence of extensive human distress needs to urgent, no alternative to force. Duty of cooperation irrespective of political, economic, social differences, to maintain international peace, promote international economic stability, and general welfare of nations. Equal rights and self determination of peoples. All states respect rights of each other. General principle of law- self-determination. Sovereign equality of states. No primus inter pares. Good faith