Riassunto esame International law, Prof. Michaelsen Christopher, libro consigliato International Law 2nd Edition , Jan Klabbers

What is international law?

Private international law is that branch of international law that regulates all lawsuits involving a “foreign” law element. Its rules do not furnish a direct solution to the dispute but merely indicate the governing law under which a case is to be decided.

Public international law is the set of rules that regulates the relations between states and other entities, be they companies, individuals, minority groups, international organizations (e.g., UN) or civil society organizations (e.g., Greenpeace). International law deals not only with war and peace, or with genocide and human rights, but it also encompasses rules on trade, on the protection of the environment, on shipping and on the protection of refugees.

Characteristics of the international legal system

The absence of a single overarching authority is perhaps the most important characteristic of international law, which operates among agents that are formally equal, though in fact unequal in power/resources. So how indeed does international law function if it has no sovereign authority? International law seems to work reasonably well. Various explanations can be offered for this state of affairs:

• One is that since states themselves make international law, they have little incentive to break it. In other words, unless something dramatic happens (e.g., a new government), states will continue to do what they are used to doing and this typically helps to strengthen international law. “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” – Louis Henkin, How Nations Behave (1979).
• An important role is also played in international law by considerations of reciprocity. Reciprocity describes the relationship between two states when one state respects the other on the condition that the latter does the same. To put it another way, since a state has no authority except within its territory and jurisdiction, that state can exercise extra-territorial power only with the consent of the other states, taking into account common convenience and mutual necessities.
• Another explanation focuses on the role of legitimacy. A rule that is perceived as useful and that has been created in the proper manner may be seen as legitimate and thereby exercise a ‘compliance pull’.
• Moreover, since states are attached to their territories, they cannot escape from each other, and it is decidedly costly to be a pariah state (a nation considered to be an outcast in the international community). In addition, international law does have at least three kinds of responses to state behaviour that can be qualified as sanctions:
  • First, there is the idea that a breach by one side releases the other side from its obligations (inadimplenti non est adimplendum).
  • Second, there is the so-called retorsion, which is essentially an unfriendly act made in response to an injurious act done by another state (e.g., the expulsion of aliens, the imposition of travel restrictions or restrictions on imports and exports, etc.).
  • Third, international law has traditionally accepted the institution of reprisals, that is countermeasures. Reprisals may be legitimately exercised only when preceded by a wrongful act and by a request to redress the injury. Finally, they must remain proportional: “Reprisals which are altogether out of proportion with the act which prompted them, are excessive and therefore illegal”.

Hence, it would be a mistake to think that international law has no sanctions whatsoever.

Moreover, international law is inherently political. Legal arguments have often come to be invoked as political tools to continue political debate (so-called “lawfare”). Lawfare is a tool especially for the smaller states against the bigger powers, but the risk is that the reverse may also happen (Ukraine against Russia: if you cannot beat Russia by military means, you might as well use the law to keep telling the world that Russia is acting as a bully).

View on international politics

As for the view one has of international politics, it is common to distinguish among different approaches:

• First, realists tend to view international law as largely irrelevant. From this perspective, states will only respect international law when it is in their interests to do so and will disrespect it when it is not.
• Second, adherents to liberal institutionalism tend to think that international law can be of relevance in some walks of life such as trade and investment because legal rules tend to create certainty and stable expectations (WTO membership makes trade easier and more predictable). Law can also help reduce transaction costs and for that reason alone it can be beneficial and serve a state’s interests. A variation on realism and liberal institutionalism is the law and economics approach, which typically presumes that states are rational actors that behave so as to maximize their profits. On these premises, states will sometimes be inclined to adopt common rules because common rules might lead to greater profit maximization than going it alone.
• Third, adherents to the so-called constructivist approach are more inclined to view international law as modelled on private law conception. To their minds, international law is about facilitating behaviours; it allows states to conclude alliances, it helps to channel political dialogue, etc. In short, international law helps to construct society and to make international politics possible.

International law is also decentralized, meaning that it is characterized by the lack of a centralized legislature, the lack of a centralized executive agency for enforcement, and the lack of a compulsory third-party adjudication (although the UN is an important forum for the development of international standards, much international law is also developed outside the UN, in other international or regional organizations, and in bilateral relations between states).

Difference between international and domestic government: a key difference is that while in a domestic government you have a clear separation between legislative, executive, and judiciary powers, in international law such distinction is not crystal clear, as they are often blended with one another. For example, the Security Council is the executive of the UN, but in some cases, like when Iraq invaded Kuwait, it pronounced itself on questions of lawfulness, thus exercised a judicial rule. Furthermore, it also adopted resolutions to criminalize acts of terrorism, hence exercised legislative power.

The history

The history of modern international law is usually said to have started in the seventeenth century, although its origins can be traced back to ancient history (Greek city-states, Roman Republic, Middle Ages). The most relevant reason why the seventeenth century stands out is that, in the year 1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years War (between Protestant and Catholic European nations). The secular power of the Pope came to a definitive end and Europe was divided into a number of territorial units, each of which could decide for itself which religion to adopt. No outside interference was permitted, the result being the creation of sovereign states and, therewith, the birth of the modern state system.

The second important event in the seventeenth century was the publication in 1625 of Hugo Grotius’ On the Law of War and Peace, which addresses not only the law of armed conflict and aggression but also such matters as the binding force of treaties. Grotius’ work had also been influential in upholding the freedom of the seas. Indeed, among Grotius’ innovations is his notion that all people have a right to trade; consequently, trading routes, such as the seas, ought to be free as well.

Moreover, Grotius’ work encompassed elements of both naturalism and positivism. He formed a bridge between natural law, which typically suggests that law exists somehow in nature—it is given by God—and can be recognized by those who adhere to the right religion, and positivism, which suggests that law is not given but man-made: it is whatever states decide or agree that it is. That being said, Grotius is considered one of the “founding fathers” of international law.

Over time, international law has been closely connected with imperialism and colonialism. Much of the globe became the playground of European powers. They argued that territories found overseas were terra nullius, hence belonged to no one. By this rule, they could proclaim that those territories belonged to them (disregarding the original inhabitants). Most of the territory to the west was said to belong to Spain, while Portugal claimed some of the territories to the east. Later, England and Holland emerged as maritime powers breaking the trading monopolies of the Spanish and the Portuguese.

In 1603, the Dutch seized the Portuguese vessel, Santa Catharina. In order to legitimate this act, they asked Grotius to write on their behalf. He argued that the high seas were not terra nullius, but rather terra communis: common property, and thus not susceptible to occupation and sovereignty. This in turn led to English protests, as English insisted on exclusive rights to the high seas around the British Isles. It was only in the mid-seventeenth century that the Dutch came round to the British position. Spain and Portugal no longer reigned supreme and Holland’s position, too, was dwindling.

International law also played a marked role when it came to slavery, first by allowing and organizing it, and, later, by gradually arriving at a prohibition. Once slavery had been legally abolished, the European powers conquered Africa. Ironically perhaps, international law is still trying to come to terms with the effects of decolonization.

Globalization and global governance

International law is also strictly connected to the economy. Sometimes this is obvious: institutions such as the World Trade Organization (WTO) or the International Monetary Fund (IMF) have been explicitly established to regulate aspects of economic life. Less obviously perhaps, phenomena as territorial rights or maritime demarcation owe much to economic concern as well (e.g., the discovery of oil and natural gas deposits). The emergence of globalization towards the end of the 20^th century has strengthened the connection between law and economics. Indeed, the existence of global economic relations demands a global legal framework.

With globalization comes also global governance, which refers to the complex of institutions, agreements, mechanisms, relationships, and processes among states, nonstate actors, markets, citizens, and organizations that regulate action for a common good. Globalization and global governance make it clear that many of the classic concepts and categories of international law may have become outdated and that topics traditionally not considered to be part of international law should be given fresh consideration (international criminal law, migration, international taxation, etc.).

Ethics

It is sometimes claimed that international law is not very ethical. Partly this results from the circumstance that ethic itself is far from uniform: different ethicists follow different traditions and present different conclusions as to what exactly constitutes proper ethical behaviour.

The making of international law

International law is predominantly made by states. Since states are considered to be sovereign, it follows that there is no authority above them; and if there is no authority above them, it follows that law can only be made with their consent (otherwise the system would be authoritarian). Hence international law is often said to be a consent-based system. Indeed, as the ICJ has put it in the Lotus case and in the Wimbledon case, the rules of international law emanate from the freely expressed will of sovereign states. Restrictions upon the independence of states cannot be presumed. The Court here laid down the idea of international law as a permissive system in that behaviour must be considered permitted unless and until it is prohibited (in most domestic society the same principle applies: people can do as they please unless the law says they can’t; “nullum crimen sine lege”). However, there are exceptions: surely committing genocide is wrong, even for those states that have never accepted the prohibition of genocide.

In other words, international law is often deemed a positivist and permissive system in that rules are created by consent of the states themselves, and do not flow from elsewhere (religion, consideration of morality, etc.). However, it is sometimes claimed that some rules are so important that they also exist without consensual foundations and may even bind those states that have not accepted them. Such rules are known as jus cogens rules: peremptory rules from which no derogation is permitted (e.g., genocide, torture, slavery, aggression). Except for the judgment handed down on the 3^rd of February 2006 in the dispute opposing the DRC and Rwanda (Armed Activities case) (Democratic Republic of the Congo v. Rwanda), the ICJ has never expressly mentioned jus cogens in its case-law.

Sources of law

Sources of international law are not the same as those of domestic law. They can be characterized as ‘formal' or ‘material' sources.

• Formal sources are those from which the law derives its force and validity (e.g., the will of the state).
• Material sources provide evidence of the existence of rules which, when proved, have the status of legally binding rules of general application (e.g., legislation).

Article 38 of the ICJ divides the sources of international law into those of a primary and secondary nature. The primary sources, which the Court will consider in its decisions, include international conventions (or treaties), customary law, and general principles of law recognized by civilized nations. On the other hand, judicial decisions and the teachings of highly qualified publicists are listed as merely secondary sources. Apart from that, article 38 does not establish a rigid hierarchy of sources: treaties, customary law and general principles of law can supersede each other and also exist alongside each other. However, from a practical perspective, it is more convenient to use a treaty as an argument in international litigations, since it is easier to use for evidential reasons, while principles and customs have to be proved.

Treaties between states—or sometimes between states and international organizations—are the main source of international law and the only instrument available to make a deal or to set up an institution as the UN. They are legally binding agreements in written form that can come in all forms and sizes; they can be bilateral but also multilateral; they can be highly solemn but also highly informal; they can come both in the form of a single instrument, and in the form of correspondence, in much the same way as offer and acceptance can form a contract in most contract law systems.

Case: Qatar v Bahrain (ICJ, 1994)
A dispute between Qatar and Bahrain concerning sovereignty over certain islands and shoals had been going on for years. During this period of time, letters were exchanged and acknowledged by both parties’ heads of state. A Tripartite Committee was formed by representatives of Qatar, Bahrain and Saudi Arabia. Though the Committee met several times, it failed to produce an agreement. Eventually, the meetings culminated in “Minutes”, which reaffirmed the process and stipulated that the parties “may” submit the dispute to the ICJ after giving the Saudi King six months to resolve the dispute.

Did these “Minutes” constitute a treaty at international law? The VCLT does not require that a treaty be in a particular form or comprise any particular element. Thus, even “Minutes” of a meeting can constitute a treaty.

A treaty may be described in a multitude of ways including: treaty, convention, protocol, charter, declaration, covenant, pact, etc. Typically, what matters is that states express their free consent to be bound. Indeed, treaties are only binding on the parties to them and can create neither rights nor obligations for third parties without their consent (res inter alios acta nec nocet prodest: a contract cannot adversely affect the rights of one who is not a party to the contract). However, if a rule is subject of a treaty but it is also customary law, it is binding also for the non-parties to the treaty due to customary law.

The reason why treaties give rise to binding obligations is that there is a rule of customary international law—pacta sunt servanda—which requires that all states honour their treaties (article 26 VCLT). In fact, there is little point in concluding agreements if the premise is that no binding force will ensue. Therefore, once consent has been expressed and the treaty has entered into force, the treaty shall be kept by the parties in good faith. Even contrary domestic law is not a valid excuse for failing to perform a treaty obligation. Thus, international law prevails over domestic law (domestic law may beg to differ).

All international agreements must be registered to constitute treaties (article 102 UN Charter), otherwise they cannot be invoked before the UN. Over the centuries, rules have developed on the conclusion of treaties. These rules have been codified in the 1969 Vienna Convention on the Law of Treaties, which has become the leading instrument on the law of treaties, even though it limits its scope to treaties concluded between states in written form (this does not mean that international oral agreements do not exist, but only that the Convention does not apply to them, because they are, for obvious evidential reasons, difficult to prove). Treaties concluded with or between international organizations are governed by the 1986 Vienna Convention, but this has yet to enter into force.

Treaties are only treaties if governed by international law. This requirement can be used to separate treaties from non-legally binding agreements, such as MoUs (memorandum of understanding).