Resumen
Summary Public International Law notes
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Providing a summary with cases on Public International Law
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Public International Law-> United Nations created in 1919 as “League of Nations” based on Westphalian
principles(right to freely determine your own political status and pursue developments),
principle of equal rights and sovereign states’ equality
->Incorporate int law in national law:
- monism; all law in same system; international law and national law are unified -
deriving from one common source - used in for example Netherlands or Germany
- dualism; national law and int law are independent & no effect on each other & has
to be incorporated in or transformed into national law - emphasis on autonomy and
sovereignty and used in for ex. UK and USA
-> if a state accepts a treaty but does not adapt its national law to conform to the treaty, it
violates international law - judges and citizens can only invoke int law that has been
corporated into national law
-Week 1:
-> Public international law: legal issues of more than 1 state; regulates interrelationship of
sovereign states & their rights and duties -> linked through other actors; international
organizations and individuals that possess rights and obligations
-> public international law reflects on society through fundamental topics; creation of
states, jurisdiction, state immunity, peace etc
# private international law-> deals with national & conflicts of law
-> history of international law:
-> birth of international law; 1648 Peace of Westphalia
-> reduced power of empire & religion; started sovereign states as the primary source
of authority and the right to self-determination
-> right to self-determination; the legal right of people to decide their own destiny in
the international order (group of people defined through common features or interests - not
just “individuals”) - can be found in Art. 1 Charter of the UN & Art. 1 ICCPR
-> Re Secession of Quebec Reference: distinguishes between internal and external
right to self-determination
-> Jean Bodin highlighted the importance of the internal and external sovereignty
- internal sovereignty: within the State and government has authority over the
State and those in it
- external sovereignty: denial of a higher authority; not subject to an outside
authority and no other state can interfere with state’s affair
-> Theories on the nature of international law:
- Hugo Grotius “On the Law of war and peace”
- rules would be there even if there was no God, no association that binds together
men, the human race or nationals can be maintained without law
-> theory from Aristotle; when there is society, there is law
- Thomas Hobbes “Leviathan”
, - need common power otherwise leads to a state of war where all are against all, so
need to subject yourself to authority
-> no common power=no law - no law= no injustice
- John Locke “Second Treatise of Government”
- 3 problems in the state of nature; no law containing consent on what is right and
wrong, no judge to decide the differences and lack of enforcement of established law
- need authority to protect your property, life and safety
- John Austin “Lectures on jurisprudence”
- no sovereign in international law means no command therefore the law is not law
but morality
- no supreme gov in international relations so sanction can only be applied by
sovereign giving previous command
- Hans Kelsen on principles of international law
- if a state violates law, sanction can be either court or war
-> compared to Austin, he says you don’t need a sovereign to have sanctions bcs law
is a coercive order
- if breach of int law, states may adopt acts of retaliation (get back at them unlawfully)
or start a war
-> International law sets out values,rights,duties & obligations
-> values; one’s judgement of what is important in life ex. freedom, family, culture
-> direct connection between individuals and states
-> international law was meant to regulate all matters regarding states(and legal
authorities) but now it involves individuals and international organisations
-> regulates international order, peace, justice, human rights, democracy,...
-> Art. 2(4) Charter of the UN; mutual recognition as equals; linked to
principle of territorial integrity: prohibits states from the use of force against the "territorial
integrity or political independence" of another state - can only be used between states
-> states can accept international law but not the authority of other
states
-> major development of international law:
-> international peace and security through treaties
-> self-determination of peoples; decolonisation gave colonised people that right
-> human rights with the Universal Convention on Human Rights that moved to the
UN Human Rights Council as well
-> International law also regulates matters between multiple authorities on a horizontal level
-> However, when there’s an issue, the Court can only rule if all parties consent to
the settlement of the dispute
-> States make the law and are subject to the law
-> Subjects of international law entails that a certain person has international legal
personality; rights and obligations under international law ex. UN
-> normal people also receive rights & obligations under national law however there’s
no legal personality
-> States have all rights & obligations - however organisations and persons get limited rights
& obligations
, -> Statehood under Article 1 Montevideo Convention 1933 - about CREATION of state and
not CONTINUITY of state ex. not the loss of effective government control
1. defined territory;
- land (not sea), defined; borders are not as important as long as there’s a core
territory bcs crucial for maintaining control
- size does not matter; can be tiny as long as one can assert sovereignty
2. permanent population;
- permanence can be nomadic people that move through (or outside?) the
territory - can also be immigrants - Western Sahara Case
- size and nationality do not matter as long as a population exists ex.
Antartika is not considered a state bcs no population
3. effective government;
- no criteria for what type of government; must only be effective - Island of
Palmas case
- effective can mean being able to stay organised politically and socially;
maintain int legal duties and a coherent structure
- continuity; entity being able to exist despite government collapses or inability
to exercise effective control for the moment - ex. Syria or Somalia
4. capacity to enter international relations;
- state needs to be independent; have a constitution - state must claim
sovereignty and thus independence (legally not just factual)
- state can claim independence; not be colony bcs can not use other’s
constitution
-> also entails sovereignty; body of persons can claim authority over territory and
independent of any other higher authority
-> sovereign equality under Art. 2(1) Charter of the UN; an equal can not have power
over another equal - mutual recognition as equals
-> a state’s binding decision only applies to persons and legal persons but not
other states
-> once a State has fulfilled these criterias it is not important whether they continue fulfilling it
ex. Somalia; not an effective government anymore though it did during the formation
-> no belief of a “failed state”; either state or not a state
-> Principles of statehood:
- principle of effectiveness: government control of their territory and population is
independent and effective
- principle of legitimacy: is a state a state when it violates human rights? Do they
need to be democratic? european community said they will only recognise a state when they
respect minorities and human rights; developed
- principle of legality: statehood due to lack of independence or in violation of
self-determination ex. South Rhodesia; white minority wants new state bcs want
independence or South Africa; white minority wanted to separate black majority into ethnic
groups that become states
-> Recognition of (new) states (by existing States):
- constitutive theory; recognition is needed for statehood - states form a political
community therefore membership is necessary for acceptance; int community is impossible
if other states refuse to recognise the new state
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