Questions on international law

 

 International Court of Justice in The Hague, The Netherlands

International Court of Justice in The Hague, The Netherlands

1. What is international law?

International law governs affairs between sovereign states in various activities, such as trade, military action and environmental regulation. International law is split up into three main specific areas:

a.) Public international law- The relationship between international entities. These entities encompass:

-The heads of state and bodies involved in foreign policy in government.

-Inter-governmental organisations (IGO’s), such as the United Nations and European Union.

-Subject orientated organisations such as the World Health Organisation and International Civil Aviation Organisation.

The subjects of public international law include treaty law, law of the sea, international criminal law and the laws of war or international humanitarian law.

b.) Private international law – Laws between private individuals addressing the question over which jurisdiction may hear a case, and the law over which jurisdiction applies to the issues in a case.

c.) Supranational law – Treaties ratified by collective nations where the laws of a nation may be inapplicable.

There are two further aspects of international law: transnational law (conflicts involving more than one state) and comparative law (how domestic states deal with issues compared to the same issue in other states).

2. Who does international law apply to?

Public international law is made by states for states. It is based on mutual obligation and consent ratified by treaties. If one state ignores a facet of international law, then it endangers the standing of international law, as another state may do the same.

As US President Barack Obama said at the UN General Assembly in September 2016:

“Sometimes I’m criticised in my own country for professing a belief in international norms and multilateral institutions. But I am convinced that in the long run, giving up some freedom of action — not giving up our ability to protect ourselves or pursue our core interests, but binding ourselves to international rules over the long term — enhances our security.”

3. What are the sources of international law?

There are four main sources of international law as identified in Article 38 of the Statute of the International Court of Justice (ICJ):

-International conventions (treaties) establish written rules that are signed by states which are binding and governed by international law.

-International custom is a general unwritten rule that is binding on all states. It is based on assumed consent evidenced by the behaviour of states and a belief by states that it is a legal obligation (opinio juris).

-General principles of law recognised by civilised nations that is not open to appeal or challenge. This includes the use of force except in self-defence (Chapter 7 article 51 of the UN charter). It also includes good faith and the impartiality of judges.

-Judicial decisions and the teachings of the most highly qualified publicists. This means the law of a state as a determination for international law. Domestic courts may play a subsidiary role in helping determine the rules of international law. It also includes scholarly writing on international law as a source of determination.

4. What are the teachings of the most highly qualified publicists?

Scholars and qualified authorities can influence and determine a case. Tribunals and courts may reference an author on a particular subject to assist in resolving a dispute.

5. What are objectives of the covenant of the League of Nations?

The objectives are: to promote international co-operation to achieve peace and security, to not resort to war, to enhance just and honourable relations between states, to establish international law as a rule of conduct among governments, to respect all treaty obligations with one another.

6. What are the objectives of the United Nations Charter?

-To maintain international peace and security.

-To develop friendly relations among nations.

-For international co-operation to solve global issues of economic, social, cultural or humanitarian character. To promote respect for human rights and fundamental freedoms without discrimination of sex, race, language and religion.

-To act as a framework and guideline to achieve these aforementioned ends.

7. Are all members of the UN viewed the same in terms of power?

Article 2, paragraph 1 of the UN Charter: "The organisation is based on the principle of sovereign equality of all its Members." This means yes, all members are viewed as the same in terms of power.

For the purposes of maintaining international peace and security, an organ of the United Nations is the Security Council, in which a council of 15 members make decisions in accordance with the UN Charter. For information on their role, please see my article on the UN Security Council.

8. What is an example of a case in private international law?

A, who is a national of the United Kingdom, dies having made a valid local will leaving land situated in Germany to B who is domiciled in Spain, how is the issue to be classified and which court has jurisdiction?

Private international law governs conflicts between individuals rather than states. To classify the above example, we need to need to look at the attributes involved in private international law:

-Jurisdiction: Under which conditions is a court competent to hear an action. Jurisdiction examines the extent to which a foreign country can judge and enforce on circumstances involved in another country. If a contract is in dispute between companies in two different countries, which court has jurisdiction?

-Choice of law: This looks at the rights of the parties involved. For example, if a contract was signed that is in dispute; the content of the contract would need to be examined. Not only this, the law governing the contract would need to be determined.

-Recognition and enforcement of foreign judgments: Once a judgment is made by a foreign court, the question is if the domestic court recognises the judgment.

There are many variables to look at in the question of jurisdiction. These include lex situs (the law of the place where there is land), lex domicilii (law of a person’s residence), lex patriae (law of nationality), lex fori (law of the court in which there is a trial taking place), lex contractus (law which governs a contract). Every country has their own system of private international law, and people from different countries interact with each other all the time.

Common cases of private international law include contract, marriage, divorce and property disputes.

9. What is sovereignty over territory?

Sovereignty is the right to exercise sole political authority over a territory. Territory includes land, airspace, maritime areas and the people within the territory. An attribute of sovereignty is the right to exclude foreigners from entering the territory.

Sovereignty over territory can arise from discovery and occupation, conquest (use of force), cessation, accretion, annexation and prescription.

Discovery and occupation - The control of a newly discovered territory with no sovereign title to the territory, either because it has previously been abandoned by a sovereign state or has never belonged to a sovereign state.

Conquest - The control of sovereign territory by a superior military force of another state. Conquest is considered unacceptable in current international relations, codified by the Nuremberg Principles and as United Nations resolution 3314.

Cessation - Territory ceded by treaty from one state to another. Examples of this include: as a gift, sale, exchange, lease or peace settlement from one state to another.

Accretion - The physical expansion of an existing territory due to natural causes.

Annexation - Incorporating territory into the domain of a state. Annexation is a unilateral action done by possession that is frequently preceded by conquest. Territory is seized by a state.

Prescription - A peaceful transition of sovereignty of an occupied territory by one state that belongs to another state. It can be caused by the original sovereign’s negligence or neglect of the territory. The possession must be peaceful, must be public, and must be for a long period of time.