Public International Law Notes For law students

Public international law lecture for law students

1. Public International Law Lecture 2 Mohammad Ata- ur Rahman

2. Customary International Law State Practice Opinio Juris

3. Opinio Juris Opinio  juris is a shortened form of the Latin phrase  opinio  juris  sive   necessitatis , which means "an opinion of law or necessity."  

4. Pacquete Habana & Opinio Juris https://supreme.justia.com/cases/federal/us/175/677/ Spanish American war. Customary International Law as part of domestic law.

5. Custom & Usage: E.g. Fishing Practice Duration & Consistency Generality: UNCLOS or Law of the Sea Accepted as Law Relativity of Custom Right of Passage over Indian Territory, Portugal v India 1955: Portuguese access to enclaves inside India International Custom as Source

6. Portuguese India Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal claimed they had a right of passage to its inland territories over Indian land which they alleged India had interfered with.

7. Reasons India argued before the Court that practice between only two states was not sufficient to form a local custom. Issue: Does Portugal have a customary right over Indian territory to its enclaves

8. Decision According to Portugal, the government of India prevented it from exercising the 'Right of passage' in its own territory. In 1960, the ICJ ruled in India's favour, saying that 'Portuguese sovereignty over the enclaves was subject to the regulation and control of India'. 

9. Diplomatic Exchanges Policy Statements Press Releases Opinions of Government Lawyers Official manuals (e.g. military law) Executive Decisions Rules of Engagement in War Comments by Government National & International Decisions Recitals in Treaties Examples of Customs

10. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. also blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any compensation The Republic of Nicaragua v. The United States of America  (1986) ICJ 1

11. The Republic of Nicaragua v. The United States of America (1986) ICJ 1 Banana Republic: In political science, the term banana republic describes a politically unstable country. stratified social classes, usually a large impoverished working class and a ruling-class plutocracy, composed of the business, political and military elites of that society

12. Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, had violated its treaty obligations to Nicaragua under: Article 2 (4) of the United Nations Charter; Articles 18 and 20 of the Charter of the Organization of American States;

13. Nicaragua’s case (further) That the United States had breached international law by violating the sovereignty of Nicaragua by: armed attacks against Nicaragua by air, land and sea; incursions into Nicaraguan territorial waters; aerial trespass into Nicaraguan airspace;

14. US Position The United States refused to participate in the merits phase of the proceedings, but the Court found that the US refusal did not prevent it from deciding the case. The United States argued that the Court did not have jurisdiction . The court refused to take on claims by Nicaragua based on the United Nations Charter and Organization of American States charter, but concluded that it could still decide the case based on customary international law obligations with 11-4 majority

15. Decision Pursuant to general and customary international law, the United States has an obligation to Nicaragua : i . to respect the sovereignty of Nicaragua. ii. not to use force or the threat of force against Nicaragua. iii. not to intervene in the internal affairs of Nicaragua.

16. Compliance: The United States refused to comply. As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua. On November 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (El Salvador, Israel and the US voted against), a non-binding resolution urging the US to comply

17. Opinio Juris Practice of a state is due to a belief that it is legally obliged to do a particular act. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. States must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.

18. For a new customary rule not only should the act be settled practice but also accompanied by Opinio Juris the attitude of States towards certain General Assembly resolutions. Statements by State representatives. Obligations undertaken by States in international forums. The International Law Commission’s findings that a concept amounts to a customary law principle. Multilateral conventions. Nicaragua & Opinio Juris

19. Considered by the International Court of Justice  to be among the primary sources of international law.  evidence of customary international law: treaties, decisions of national and international courts, national legislation, opinions of national legal advisors, diplomatic correspondence, and practice of international organizations Customary international law

20. Jus Cogens Compelling Law Jus cogens : fundamental principle of international law from which no derogation is ever permitted.  A state violates customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity & piracy. https://www.law.cornell.edu/wex/jus_cogens

21. Law-making Treaties e.g. Geneva Convention of 1925 UNCLOS Hague Conventions on War & Neutrality Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, U.S.T.S. 540, 2 A.J.I.L. Supp. 117, entered into force January 26, 1910. Treaties as Source

22. Usually create general norms: Declaration of Paris, 1856: Neutrality in maritime warfare Hague Conventions 1899 & 1907: Law of War Genocide Convention, 1948 UNCLOS Law-Making Treaties

23. Nicaragua case: US also relied on exclusion clause in Organization of American States charter which prevented ICJ from deciding case based on UN Charter. But court applied customary international law. North Korea’s Recent threat to attack Guam Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations… Relations of Treaties to Customs

24. Article 59: The decision of the Court has no binding force except between the parties and in respect of that particular case. But the court has relied on earlier decisions as precedent when considering legality of conventions, compensation, interpretation of treaties etc Article 59 of Statute of ICJ states:

25. International Military Tribunals against Nazis Iran-US Claims Tribunals & International Criminal Tribunal over former Yugoslavia have established important points of law Decisions of International Tribunals

26. Advisory opinions have influence too States respect even advisory opinions Even when decisions are binding on litigating parties only Procedural Case-law exists Decisions of ICJ & its predecessor

27. Are also relevant as they are the first legal forum of adjudication & decide important points of fact / law especially on Recognition of Governments State Succession Sovereign Immunity Diplomatic Immunity Extradition War Crimes Belligerent Occupation State of War & Law of Prize Decisions of Municipal Courts

28. Conclusions of International Conferences e.g. BRICS Resolutions of UN General Assembly: Law-making about Nurnberg Tribunal, 1946 Declarations of Independence, 1960 Declarations of Legal Principles in Outer Space, 1962 Rio Declaration on Environment, 1992 Other Material Sources

29. Writings of Publicists Codification & International Law Commission created as subsidiary of General Assembly in 1947 by Article 13 More Material Sources

30. International Law Commission https://legal.un.org/ilc/

31. General Principles of International Law Article 3 of International Law Commission: Responsibility of States for Internationally Wrongful Acts The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. Alabama Claims 1872 : US government recovered damages against UK for not remaining neutral & helping Confederates in US Civil War

32. Alabama Claims In 1869 the United States claimed direct and collateral damage against Great Britain. In the particular case of the Alabama , the United States claimed that Britain had violated neutrality by allowing five warships to be constructed, especially the Alabama , knowing that it would eventually enter into naval service with the Confederacy. US received $ 15.5 million as arbitration award.

33. National Law Aspects of International Law When called upon to apply national law an international tribunal should seek to apply that law as it would be applied in the state concerned. International Court is not a court of appeal International tribunals can only declare a national law illegal / unconstitutional if the courts of that country would have done the same International Tribunals may interpret national laws in their own manner. In the Lighthouses Case between France and Greece (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62 (Mar. 17)

34. Lighthouses Case between France and Greece (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62 (Mar. 17) By a Special Agreement for arbitration, signed at Paris on July 15th, 1931, the French and Greek Governments have agreed to submit to the Court the dispute which has arisen between them as a result of the Greek Government's refusal to comply with the request of the French Government to the Greek Government concerning the validity as against Greece of the contract concluded between the firm and the Ottoman Empire in April 1913, for the renewal of an existing concession. The agreement required the court to decide if the contract had been duly entered into Ottoman Law according to Treaty of Athens. Treaty of Athens formally ended hostilities between Greece & Ottoman Turkey.

35. International law as the applicable law in national courts  When applying international law rules, municipal courts may find it necessary to develop the law, notably where it is unclear or uncertain. This will include consideration of how the international rule is applicable in a domestic context, a process  which has been notable, for example, in the field of state immunity. Rasul v. Bush , 542 U.S. 466 (2004): US Supreme Court had jurisdiction to hear pleas to plea of Habeas Corpus from foreign citizens. US State was therefore not immune. the United States Supreme Court ruled, in Rasul v. Bush , that Guantanamo captives were entitled to being informed of the allegations justifying their detention, and were entitled to try to refute them.

36. Habeas Corpus Part of US Law since 1789: You have the body United States law affords persons the right to petition the federal courts for a writ of habeas corpus. In the War on Terrorism, the right to petition for a writ of habeas corpus was curtailed for persons accused of engaging in certain conduct

37. Rasul v Bush The lead petitioner, British citizen Shafiq Rasul , was one of the Tipton Three. The U.S. transported the three men to the United Kingdom in March 2004 before the decision was handed down, and the government released them the next day. He did not deny having fought for the Taliban, but claimed that if they did take up arms, it was only when being attacked and in self-defense

38. Res Judicata A case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with "preclusion”.

39. Customary International Law English Common Law accepts Customs as long as they do not Contradict Statute But in English Legal System international system is not a part but one of the sources of common law

40. TRENDTEX TRADING CORPORATION v. CENTRAL BANK OF NIGERIA [1977] 1 Lloyd's Rep. 581 Lord Denning: the rules of international law, as existing from time to time, do form part of our English law.’ and ‘we should give effect to those changes and not be bound by any idea of stare decisis in international law’

41. Trendtex Court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit. July 1975 - an irrevocable letter of credit for over $14,000,000 in favour of the plaintiff, a Swiss company, to pay for 240,000 tons of cement which the plaintiff had sold to an English company. Cement shipped to Nigeria - to build government barracks. The plaintiff shipped the cement to Nigeria - congestion in the port of discharge Central Bank declined to make payments. Claimed to be due for the price and for demurrage. 300 to 400 ships outside waiting carrying cement. (on demurrage). It was because the government departments had ordered far too much.

42. Trendtex Lord Denning MR said: ‘Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law.’ and ‘we should give effect to those changes and not be bound by any idea of stare decisis in international law’ and ‘Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature.’

43. Regina v Jones (Margaret), Regina v Milling and others: HL 29 Mar 2006 Lord Bingham of Cornhill at the automatic incorporation into municipal law of a crime under customary international law would involve “unjustifiably usurping the province of the legislature”.

44. Regina v Jones (Margaret), Regina v Milling and others: HL 29 Mar 2006 [2006] UKHL 16, Times 30-Mar-2006 Each defendant sought to raise by way of defence of their various criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were accordingly justified in law.

45. Held: The law on aggression was not part of domestic law, and the defence available to the defendants required them to be seeking to prevent a crime under domestic law. The legality of the war in Iraq did not come into the issue: ‘Necessity is potentially a domestic defence to a domestic offence.’ Lord Bingham: ‘what has become an important democratic principle in this country: that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties.