Appunti completi di International Law

International law (50239) Bocconi University, 2022-2023

Table of Content

• Introduction ........................................................................................................................... 2
• The sources of international law ...................................................................................... 7
  • Treaties ....................................................................................................................................................... 7
  • Customary international law ............................................................................................................ 23
  • Peremptory norms of general international law ('jus cogens') ...................................................... 30
  • 'The general principles of law recognised by civilised nations' ................................................ 31
  • Judicial decisions and scholarly writings ....................................................................................... 33
  • Legal scholarship ......................................................................................................................................... 34
  • Other sources .............................................................................................................................................. 35
• Statehood .............................................................................................................................. 37
  • The creation of states and the self-determination of peoples ............................................................. 40
• The jurisdiction and immunities of states ....................................................................... 47
  • Jurisdiction .............................................................................................................................................. 47
  • Immunities ................................................................................................................................................ 56
• International organisations ............................................................................................ 71
  • The constituent instrument of an international organizations ................................................................... 74
  • The powers of an international organisation .............................................................................................. 76
  • Legal rights and obligations of an international organization ..................................................................... 81
  • The privileges and immunities of an international organization ................................................................ 81
• International responsibility .............................................................................................. 89
  • The internationally wrongful act ................................................................................................................. 91
  • The content of the international responsibility of a state or international organization ..................... 100
  • The implementation of the responsibility of a state or international organization ............................ 104
  • Invocations of responsibility by the injured state ................................................................................. 106
  • Invocation by state/IO other than injured state/IO ................................................................................. 110
  • Countermeasures ................................................................................................................................. 111
• The use of interstate force ............................................................................................... 113
  • The use of force via "non state actors" ..................................................................................................... 116
  • Use of force and intervention in the internal affairs of another state ..................................................... 117
  • The use of force in self-defence ............................................................................................................ 118
  • The use of interstate force pursuant to authorization by the UN Security Council ....................... 123
• The peaceful settlement of international disputes .................................................... 127

Introduction

I. International law in essence

International law (or public international law): body of law created among states, international organisations and certain other entities. It also tries to establish the meaning of state.

Sources: we have a variety of sources from which the norms derive: treaties, customary international law, jus cogens, general principles… Recognized lawmakers are foremost and ultimately states, which concede lesser lawmaking role to international organizations and certain other entities.

International law regulates whatever states and others creating it want it to regulate. Matters typically regulated:

• Conduct:
  • Their own conduct
  • Conduct towards each other: most international law regulating states’ conduct towards each other
  • Certain otherwise-internal conduct: large body of international law regulating otherwise-internal state conduct
  • Certain conduct of individuals and specific non-state groups
• Statuses:
  • Of entities: e.g., What a state is, who counts as its government, etc.
  • Of places and spaces: e.g., Title of states to territory, rights of states over maritime spaces, etc.

There are core topics of international law and specialized topics of international law. Examples of areas of international law: humanitarian law, international trade, international environmental law, human rights… these subsystems have a specific functioning (Course focusing on core topics).

II. Common initial misconceptions about international law

The International Legal System and the Domestic Analogy: There is the mistake to search in the international legal system for a comprehensive reproduction of legal institutions characteristic of modern state. In international law, there is no legislator (entity with the competency of drafting binding rules), e.g., the UN is not a legislator because international law is based on consent, and some states have veto power. Every commitment entered into by a state has to obtain the consent in some form of the state. There is no authority.

Another difference with domestic law: in domestic law, there is a binding system of jurisdictions. In international law, there is no universal court. States are only subject to an international jurisdiction if they have given their consent. There are some international courts issuing binding decisions (ICJ, International criminal court…), but they are subject to and limited by the consent of the state. The state has to consent to be judged by the court, and consent limits the power of the court (the state can consent to give jurisdiction regarding treaty A and not B).

The Legal Character of International Law: International law is really law, and it’s treated as law by those actors whose conduct is regulated by it.

The Observance of International Law: Since there is no international police, do states comply with international law? It is complied with most of the time. If they don’t comply, they try to justify themselves. International law is generally observed. Rules of international law are not laid down in first place unless states, etc., agree with them in principle: there is an inbuilt compliance mechanism. But inbuilt compliance mechanism, while largely effective, does not guarantee compliance.

Other compliance mechanisms:

• Formal:
  • International mechanisms
    • Judicial: Jurisdiction of international courts is not inherently compulsory
    • Non-judicial: Mechanisms within some international organizations
    • Diplomatic protest and measures of self-help
  • National mechanisms: Increasing role of national courts
• Informal: Nonetheless there are undeniable problems of compliance with at least some rules of international law. International law at very least is informing governmental and relevant other decision-making.

III. Foundational concepts and principles of international law

States are fundamental and central to international law as classically and still presently conceived. States are the radical and principal international legal persons. Personality, rights and obligations, and capacities under international law of non-state entities are all deriving in final analysis from states. International law is still predominantly about states.

Certain foundational concepts and principles historically and still are agreed, expressly or tacitly, among states there is nothing inherent about these ‘ground rules’: States together are capable of changing them at will.

A. The sovereignty of states

A state is deemed under international law to be sovereign, i.e., having no authority inherently supreme over it. No other state or non-state entity is inherently entitled to impose its will on a state. Two viewpoints:

• External viewpoint: state is sovereign in the relation with other states principle of noninterference.
• Internal viewpoint: state is sovereign in its own territory in the international community there is no authority that is supreme and act without state’s consent because the state is sovereign. A state is not prohibited from doing anything it has not freely undertaken not to do or obliged to do anything it has not freely undertaken to do (See SS ‘Lotus’ case).

See eg Corfu Channel at p. 43 (sep. op. Álvarez): “By sovereignty, we understand the whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States.”

B. The sovereign equality of states

Since each state is deemed under international law to be sovereign, each state is necessarily equal under international law. There is no superior authority, one state is not going to judge another state.

C. State consent

It is the basis upon which states are going to have their own freedom limited. Since states are deemed under international law to be sovereign, international law is grounded on presumption of freedom of state action. A state is free to do what is not prohibited by international law from doing, and it’s free not to do what not obliged by international law to do. Restrictions on sovereignty of states are not to be presumed (See The SS ‘Lotus’, PCIJ Reports Series A No 10 (1927) at pp. 18–19).

A state is free, as expression of sovereignty, to consent to limitations on its freedom of action (See The SS ‘Wimbledon’, PCIJ Reports Series A No 1 (1923) at p. 25). The state consent to limitations on freedom of action is the formal basis of the binding authority of international law according to prevailing classical ‘voluntarist’ model (See Lotus at p. 18). A state bound only by those international legal obligations it can be taken to have accepted as binding on it.

D. States, sovereignty, and territory

States are generally deemed to have sovereignty on their own territory, so they are free to do what they want (unless they limit this freedom through international law). Sovereignty assumes particular significance in relation to any territory over which it is exercised, i.e., any territory to which a state enjoys a title (also known as ‘sovereign title’).

Territorial state alone has inherent right under international law to exercise governmental authority in that territory, to exploit natural resources of that territory, to control entry into and out of that territory, and to alienate that territory by way of cession.

Classical international law is not concerned with what state did within its territory UNLESS infringing rights of another state. Contemporary international law regulating many aspects of state’s conduct within its territory: labour standards, human rights standards, environmental standards, certain economic matters, etc. But the regulation of these matters reflects and reaffirms the state’s sovereignty over its territory, insofar as positing that state as exclusive bearer and executor of relevant obligations.

Protecting each state’s territorial sovereignty is a core concern of international law. It is reflected in prohibition on use of force against territory of another state, prohibition on unconsented exercise of executive powers in territory of another state, and prohibition on intervention in internal affairs of another state.

IV. The various international legal persons

A. The concept of international legal personality

The concept of ‘legal personality’ is a circular concept to an extent: if an entity has legal personality, it has certain rights and obligations; to identify subjects we have to see what rights and obligation they bear. International legal personality = capacity to bear rights or obligations under international law, which means having the capacity to produce legal facts (e.g., capacity to conclude treaties, invoke the international responsibility of certain entities, contribute to the formation of customary international law…).

Different international legal persons do not necessarily bear same rights and obligations. See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), ICJ Reports 1949, p. 174 at p. 178: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights [and obligations]”.

The only subjects with complete international legal personality are states. They potentially can acquire all the obligations and rights that international law covers. Other international legal persons, like international organizations, do not bear the same rights and duties and do not have the same capacity, but they can enjoy only specific international legal capacities: e.g., capacity to enter into treaties, capacity to contribute formally to formation of customary international law, capacity to bind self by way of unilateral statement, capacity to bear international legal responsibility, and capacity to invoke international legal responsibility.

NB: Specific rights and obligations and specific international legal capacities actually borne and enjoyed under international law by specific international legal person are generally of greater interest than abstract enjoyment of international legal personality.

B. The international legal persons (subjects of international law)

States and various non-state international legal persons accorded international legal personality by states. The international legal rights, obligations, and capacities of different international legal persons vary.

• States: States have inherent international legal personality. The international legal personality of state is acquired ipso facto: as long as an entity bears all the elements that are necessary to be recognized as a state, it is recognized by international law and it has legal personality. The concept of state is a matter of fact: as long as you bear certain factual characteristics (territory, population, government) you are a state. International law does not create states. They have full capacities: they have the capacity to be subject to all the sources of international law, the capacity to enter into treaties and be subject to rights and obligations, capacity to bind themselves by way of unilateral statement, capacity to contribute formally to the formation of customary international law, capacity to bear and invoke international responsibilities.
• International Organisations (e.g., UN, EU, NATO): entities created by states, through an international treaty (constitutive treaty of the organization). It is recognized all the powers and obligations stated in the treaty, so it has limited powers, depending on what was established in the treaty. It exists as long as states have recognized its existence. They are capable of enjoying international legal personality in own right, but not all international organization have international legal personality. (See Reparation for Injuries at p. 179)

International legal personality of specific international organization is not inherent but instead dependent on grant to organization by member states or member international organizations. If an international organization is granted international legal personality, it acquires any rights and obligations borne and any capacities enjoyed under customary international law by international organizations as a species of international legal person.

If international organization is not granted international legal personality, it does not bear any rights or obligations and does not enjoy any capacities under customary international law. International organizations as a species of international legal person NOT necessarily or currently bearing same rights and obligations under customary international law as states. Some international organizations have the capacity to conclude treaties (EU), to bind themselves by way of unilateral statement, to bear and invoke international legal responsibility. They have the capacity to be subject to customary international law, but if they have the power to contribute to the formation of international customary law, they have it ONLY regarding the topic of the specific organization (controversial question).

Individuals: it’s a contentious issue. In traditional international law, they were not subjects. Now, due to the development of international human rights law, humanitarian law, and international criminal law, it is widely recognized that individuals have certain rights and obligations under international law, so they are at least partially subjects. Individuals bear duties regarding international criminal law: if you commit international crimes, you are also liable under international law.

Insurgents/Belligerents: armed paramilitary groups organized within the territory of a state. They have some degree of control on a territory. Their aim is to overthrow the government of the state they are in, or to create a new state by seceding, or to integrate into another state. They have partial legal personality: it is a temporary situation.