10 subjects on public international law

Public international law presides over the conduct of States and intergovernmental organisations.

1. Statehood

Declaratory theory: recognition of a state is simply accepting the existing facts that meet the criteria of the Montevideo Convention. Montevideo Convention on Rights and Duties of States 1933 criteria for statehood:

  • A permanent population
  • A defined territory
  • A government
  • Capacity to enter into relations with other States

Constitutive theory: recognition of a state is not instant; it has to be recognised as such.

In international law in general, there is no legal obligation to recognise a state on the basis that it satisfies all criteria of a state.

2. Nationality and intergovernmental organisations

Intergovernmental organisations are organisations made up of a collective number of states that have a specified function, role and membership. Their role, functions and membership is primarily administered through treaties.

Why would a sovereign state become a member of an intergovernmental organisation?

  • Economic rewards (free trade agreements and so on)
  • Political influence (such as a small state being part of the EU has more of a say on the world stage)
  • Security (such as NATO)

Why would a sovereign state choose to decline becoming a member of an intergovernmental organisation?

  • Loss of sovereign power (due to treaties that states are bound by)
  • Insufficient benefits (in some cases states stand to lose more than they gain being a member)

3. The law of treaties

Adopted on 22nd May 1969, The Vienna Convention on the Law of Treaties is a treaty that outlays the framework and rules concerning treaties made between states. Entered into force January 1980.

As of 6th May 2017 – 45 signatories, 114 parties to the treaty.

The Convention covers all aspects of treaty-making between states, including:

  • The entry into force of treaties
  • Observance, application and interpretation of treaties
  • Amendment and modification of treaties (including reservations)
  • Invalidity, termination and suspension of the operation of treaties
  • Depositaries, notifications, corrections and registration

4. Human rights

There are two categories of human rights law in international law.

1. Action by the UN Human Rights Council (UNHRC). Made up of 47 member states of the UN General Assembly, which rotate every three years. UNHRC have 9 core treaties, which are monitored by a committee of experts:

  • International Convention on the Elimination of All Forms of Racial Discrimination
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Rights of the Child
  • International Convention for the Protection of All Persons from Enforced Disappearance
  • Convention on the Rights of Persons with Disabilities

2. Customary international law is based on uniformity and the belief that it is obligatory. The concept of jus cogens in international customary law is based on peremptory norms of general international law. It means rules that are so fundamental that they are not expressed by a treaty, and derives from the usual behaviour of states in their relations. It is a universal acceptance of customs bound by all nations.

5. Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS), 1982, Montego Bay, Jamaica, is the globally recognised Convention dealing with all matters relating to the Law of the Sea. It involved more than 14 years of work involving over 150 countries representing all regions of the world. Some of the key features of UNCLOS:

  • A coastal sovereign state’s territorial sea is 12 nautical miles from the coastline.
  • Foreign vessels are allowed “innocent passage” through these waters. Innocent passage means passage that is "continuous and expeditious" and not doing the following: threat or use of force against the sovereign territory, weapons exercise, information gathering about and any act of propaganda about the defence or security of the sovereign territory, landing or launching an aircraft or any military device, loading or unloading of any commodity or person, pollution, research or survey activities, fishing, interfering with the sovereign state's communication facilities or any other facilities.
  • Coastal sovereign states have a 200 nautical mile Exclusive Economic Zone (EEZ) where they are permitted to explore, exploit, conserve and manage any natural resources, whether living or non-living. Any other activities related to economic exploitation such as production of energy from water, currents, and winds is permitted. The sovereign state also has jurisdiction to establish artificial islands, installations and structures, and conduct marine research.  

More information on UNCLOS can be found here.

6. State immunity

The doctrine of state immunity concerns the protection of a state from the jurisdiction of the courts of another state. In order words, a state has immunity from the jurisdiction of the courts of another state. It is based on the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004. This treaty has not yet entered into force. A treaty in force on state immunity is the European Convention on State Immunity 1972.

7. State responsibility

State responsibility looks at how and when a state is responsible for breaching an international obligation (such as violating an article in a treaty).

The primary factors looked at is:

  • The conditions to which an act qualifies as being wrongful.
  • Which officials or entities are attributed to the state.
  • Defence of liability.
  • Consequence of liability.

8. United Nations

The word “United Nations” was first used by US President Franklin D. Roosevelt in the “Declaration of the United Nations” of 1942 during the Second World War, which declared that 26 States pledged their support for fighting together against the Axis Powers.

The United Nations itself was founded in 1945 after the Second World War by 51 countries. The primary purposes of the UN are:

  • To practice tolerance and live in peace with one another,
  • To maintain international peace and security
  • That armed conflict shall not be used due to the acceptance of principles and methods, except in the common interest.
  • Promotion of economic and social advancement of all peoples.

The principal doctrine of the UN is the UN Charter of 1945.

9. Armed conflict

a.) Jus ad bellum: The law of war (or when to engage in war) - The use of force is permitted if it is in the interest of international peace and security, and in self-defence.

“In the interest of international peace and security” strictly means through a resolution passed in the United Nations Security Council authorising the use of force, as expressed in Chapter VII of the UN Charter.

The use of force in self-defence is expressed through the UN Charter Article 51: “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs…”

b.) Jus in bello: The law of armed conflict (when armed conflict does occur, the body of law concerning the conduct of states). This is also known as international humanitarian law. The foundational treaty in international humanitarian law is known as the Geneva Conventions and Additional Protocols.

  • Geneva Convention I: Protects soldiers who are out of combat (hors de combat) – the wounded and sick.
  • Geneva Convention II: Protects soldiers who are out of combat – the shipwrecked, wounded and sick at sea.
  • Geneva Convention III: Protects the treatment of prisoners of war.
  • Geneva Convention IV: Protection of civilians in times of war.
  • Additional Protocol I: Expands protection of civilians (including military and civilian medical aid workers) in international armed conflicts
  • Additional Protocol II: Expands protection of civilians in non-international armed conflicts.
  • Additional Protocol III: The adoption of a new additional distinctive emblem, the red crystal.

c.) There is a third classification of armed conflict, but does it not have international consensus. That is the concept of humanitarian intervention. It is a moral concept of engaging in war, not a legal one.

An example of this would be NATO’s intervening in Kosovo without UN Security Council backing. The then UN Secretary General said of this event “On the one hand, is it legitimate for a regional organisation to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of Human Rights, with grave humanitarian consequences, continue unchecked?”

A concept closely resembling humanitarian intervention is the responsibility to protect. First coined by the Canadian government in 2001 at the International Commission on Intervention and State Sovereignty (ICISS) to solve the question asked by the then UN Secretary-General Kofi Annan:

“If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica - to gross and systematic violations of human rights that affect every precept of our common humanity?"

The ICISS report is about the right of humanitarian intervention, of taking military action to protect people at risk in another state. The responsibility to protect is therefore defined as the responsibility to protect a sovereign state’s citizens from catastrophe, and the international community to intervene when states are unwilling or unable to do so.

The responsibility to protect is primarily seen as a preventative measure to catastrophe, but if all preventative measures are exhausted the next step is a proposal at the Security Council. 

In the ICISS report, one of the statements made was “The Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is otherwise majority support.”

If the Security Council fails the above, the ICISS report notes “if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation – and that the stature and credibility of the United Nations may suffer thereby." This leads to the consideration of military action on the moral grounds of humanitarian intervention.

At the United Nations World Summit of 2005, the responsibility to protect was agreed by all member states of the UN. The articles concerned are 138, 139 and 140. Be aware, there is no mention of humanitarian intervention if the Security Council fail to pass a resolution. The course of action in relation to the responsibility to protect is phrased as: each state has the responsibility to protect the population from genocide, war crimes, ethnic cleansing and crimes against humanity. If a state is unable or unwilling to do so, the international community should encourage and help states exercise the responsibility. The international community can use diplomatic, humanitarian and other peaceful means. Should peaceful means be adequate, it is possible to take collective action through the Security Council Chapter VII. To reiterate: there is no mention of military intervention or non-peaceful action without the authorisation of the Security Council.

An interesting note here is genocide, war crimes and crimes against humanity are already defined in the Rome Statute as part of international criminal law.

What is the difference between genocide (in the context of the killing of an ethnic group) and ethnic cleansing? I will discuss this in a later article.

In conclusion, the ICISS report and the UN World Summit clearly have different definitions on the responsibility to protect. From the ICISS report, it appears the responsibility to protect is a preventative measure that if all else fails, military action on the grounds of humanitarian intervention can be put into consideration. Member States at the General Assembly have defined the responsibility to protect as being only a preventative measure, and anything beyond non-peaceful means must be authorised by the Security Council.

10. International Criminal Law

The International Criminal Court (ICC) tries individuals for the most heinous crimes, which are: crimes against humanity, war crimes, and genocide. The Rome Statute of 1998 entered into force in July 2002 which established the function of the International Criminal Court in The Hague, the Netherlands. I am planning to do a separate article about the ICC soon.



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