Intenation Political Law

2º RRII-COM

PUBLIC INTERNATIONAL LAW APUNTES

Lesson 1: Public International Law: International Society and Public International Law

• Public International Law is a group of norms that are ruling the relationship as well as the rights and obligations between the members of the international society.
• States, International Organizations and Individuals are the most important parts of Public International Law and they are the ones that can be judged on international crimes. These members have obligations due to this.
• However, there are problems regarding the enforceability of PIL.
• There are different units in charge of making these individuals follow international law such as:

• Chapter VII of the UN Charter that mentions that sanctions can be imposed. This is done by the Security Council.
• International Courts are in charge of enforcing law and international norms.
• International Organizations are in charge of dictating the world's behaviour, this applies to states, individuals etc.

• The effectiveness of PIL is also questioned. There are powerful countries that ignore the law and that is why IL is incapable of addressing urgent problems like poverty, violence and climate change.

The Historical Development and Ancient Events of International Norms

Early origins:

• In 2100 BC a treaty was signed between Lagash and Umma. It had one objective which was to determine the boundaries of each region. This region is what we know of today as Mesopotamia.
• Ramses the II of Egypt and the King of Hittites mentioned that a peace should be established and brotherhood should be the main aim.

• This could give us a clue about how they shouldn't use force between them and could remind us of Article 2.4 of the Charter of the UN which mentions that “the use of force is not a legal strategy”. It further states what should be considered as an aggression and how to defend, providing tools of how they should react to the use of force.

• In Ancient Greece, treaties were divided in city-states. These were signed agreements between them and they were applicable to foreigners that lived in that state but belonged to another one.

• It mentioned and applied to citizens of the state and foreigners as well as the protection that should be granted to foreigners.

• From these treaties we deduce the origins of diplomatic protection.

• It also determined in which circumstances a war could start and once it has started the idea of limiting the brutality of war.
• The term Jus in Bello was used to state that there had to be some particular conditions in order to consider a war fair.
• The term Jus ad Bellum was used to determine that certain strategies can’t be used in war. It gained importance in the 15th century, limiting the brutality of war.

• In Ancient Rome the terms Jus Civile, which applied to roman citizens, and Jus Gentium, which applied to foreigners were used.
• Jus Gentium overrode Jus Civile and became the common law that had to be applied through the whole roman empire. This meant that it has universal application.
• This was seen as the clear and direct precedent of public international law.
• It was seen as the law of nations or another way of referring to international norms with terms such as Jus Gentium Publicum or Privitum.

The Founders of Modern International Law

1. Francisco de Vitoria (1489) was a Spanish professor in La Universidad de Salamanca.

• He was relevant because he analyzed the interests that indian nations had.
• He didn't think that indian nations were equal to catholic ad christian european states but he considered that their interests and concerns could be legitimate.
• He concluded that international law had to be applied everywhere and this should affect indian states too.
• Both european and non european states had to be embraced by international law.

1. Hugo Grotius (1583) was a Dutch scholar who wrote a primary work called the “De iure belli ac pacis”.

• He lived during the Peace of Westphalia and witnessed how states were conformed etc.
• He said it was not linked with religion but founded with reason and encouraged the freedom of the seas (states were not able to appropriate the areas of the high seas)

Historical Development of International Norms

1. The Peace of Westphalia (1648): it was an agreement that did not only put an end to the 30 year war but also to many conflicts that were occurring throughout Europe during the time.

• Many of those conflicts had a religious nature which usually was a confrontation between Catholic states and Protestant ones.
• The catholic group was formed by Spain, France and the Netherlands and the protestants were led by Germany and supported by Sweden.
• As time passed by the conflicts were also political, for example when the Netherlands wanted its independence from Spain.
• Ministers from different regions wanted to look for a solution to all of these conflicts and eventually 96 institutions came together to create this agreement.
• Some of the outcomes from the signing of this agreement include:

• The emergence of the modern state.
• The intention of establishing universal peace and religious freedom.
• The attempt of a peaceful negotiation process over war in the case of conflict.
• The diplomatic strategy that emerged from this peace remains until now a days and examples such as the choice of negotiation over war can be seen in the UN Charter in Article 2.4 where the use of force is forbidden.
• Nevertheless, not all parties agreed with the treaty. An example would be the Pope who refused to agree with it as it took away and power the church had and gave it to the states. Examples of this would be the inability of going to war without the consent of the states as now the territory of a state had to be respected due to the principle of equality and of territorial integrity.

1. The Congress of Vienna (1814-1815): the intention behind this congress was to preserve equilibrium in Europe by restoring what was changed during Napoleon the I’s ruling.

• This would be managed by creating a long term peace plan in Europe.
• Peace would be ensured through the balancing of the main powers, resizing these to avoid them going to war.
• It also wanted to eliminate any republican or revolutionary ideas which threatened the european status quo.

1. The United Nations (1945): It was created in San Francisco after WWII.

• On the 26th of June the Charter of the United Nations was signed.
• The intentions of the United Nations along with the Peace of Westphalia were to avoid war and try to resolve conflict through diplomatic means.

The Definition of Public International Law

• Public International Law could be defined as a body of rules that are legally binded to States and International Organizations in their interactions with other states and organizations as well as other entities.
• The priority of Public International Law is the creation of legal norms.
• It sets out obligations and rights for the main subjects to follow.
• The initial eurocentric character of Public International Law has weakened in the last 60 years.
• Nevertheless it has a crucial role due to the importance of the International Society which justifies the need of having international norms, especially those that apply to states.

The International/Global Society or Community

• The International Society is conformed by different groups which have an autonomous power that allows them to establish relationships between them. These are mainly states.
• The International Community has appeared due to the global disappearance of barriers and the  existence of global risks.
• A characteristic of it is that it is Universal meaning that all the states considered as such are part of it no matter their size, their power or if they have a permanent seat in the security council.

• This has its impact on the community as occurs with Palestine, a country which wants to be identified as a state as it has many repercussions in the International Society as well as many rights and obligations that they have to follow to not be considered a state.

• The International Community is Complex and has many unsolved problems.
• It is also Dynamic as it challenges change with new concerns appearing, such as Climate change)
• Furthermore, it is Heterogeneous as there are significant differences among the countries that make part of it.
• The International Community is very Fragmented as it has many different rules, institutions etc. It is quite Poorly Integrated due to the multiplicity of international organizations and states.
• Lastly it is Independent but at the same time requires Constant Interaction.

Today's challenge to International Law

• There are specific challenges rejecting the basic rules which were formed when the Post Westphalian International Order was founded.
• Some of these include the rejection towards the thought that States are the main political unit in international relations, many agree otherwise.
• Furthermore, many states are starting to reject the globalization process as could be seen with Brexit.

Jus Cogens Norms and Erga Omnes Obligations

• We must first take into account that these exclusively affect Public International Law.

1. Jus Cogens Norms

• Another word for Jus Cogens Norms are Peremptory Norms.

• Jus Cogens Norms have a higher status regarding the sources of international law.
• These norms are the peak of Public International Law and are considered the higher and founding set of rules as they are compulsory and bind law states.
• The roots of Jus Cogens Norms come from Roman Law. Specifically two concepts can be extracted  from this being Jus Strictum and Jus Dispositivum.
• Jus Cogens Norms establish a set of rules which include:

1. Prohibiting the use of force as could be Piracy.
2. Prohibiting International Crime, being this any form of Genocide or Crimes against Humanity.
3. Rules are created prohibiting the breaking of human rights as could be tortutre.

• They are based on fundamental and superior values as could be public order.
• These norms arise mainly through practice. It is one particular practice which is followed by a high number of states, the one that eventually crystallizes into a norm.
• For a practice to be considered a Jus Cogens Norm it must be followed for a particular amount of time and has to be consistent as well as followed by a high number of states.
• There is no possibility of modifying or derogating a norm when it is established.
• A norm can only be modified if there is another norm with the same power that modifies this one. States can not join for a Treaty with the intention of modifying one of these norms (unless the states previously occurs) and if this were to happen the Treaty would not be valid.
• Even if a state does not sign the approval of the Norm, it is still applied to the state as it is a Fundamental and Superior value which must be followed by every State in the International Community. For example, if a state does not sign the approval of the Genocide Convention, if the state commits Genocide it will still count as a violation of a Jus Cogens Norm.
• This exact Genocie Convention of 1948 is an example of how legal provisions are created and can be identified as Jus Cogens norms.

2. Erga Omnes Obligations

• It is a latin expression that means “towards all” meaning that these obligations concern all states.
• There is no convention that states which concrete requirements must take place in order to establish an obligation, therefore they must be identified with the instruments that have been adopted within Public International Law. This occurs in the same way as Jus Cogens Norms.
• These obligations were recognized in the International Court of Justice in the Barcelona Traction Case.
• An obligation has the same consequence as a norm meaning there is no possibility of modifying it. Any state can claim its violation and it is obligatory to be followed by all.
• Nevertheless, it is important to understand that not every single Erga Omnes Obligation qualifies as a Jus Cogens Norm.
• Therefore, all Jus Cogens norms create Erga Omnes Obligations but not all Erga Omnes Obligations come from Jus Cogens Norms.
• An example of this would be The Right of Innocent Passage. Here, a boat of one state is travelling in the sea area of another state and that state will allow the boat to pass through the area. This is an obligation but it is not a Jus Cogens Norm because it is not a Fundamental Norm of Human Rights, it is simply a rule.

Lesson 2: Legal Sources

...