International Law

International law

Primary and secondary rules

In international law, you can find primary and secondary rules. The distinction is really theoretical and doctrinal, but it allows us to systematize the rules in international law. Primary rules clearly tell us the legal obligations and rights in international law (treaties, customs, principles), they are substantive in the sense that they tell us in a clear way the content of the rule that a state and the other actors have to follow. Secondary rules are applied: to say whether primary rules exist, to tell us how the primary rules should be applied, and to explain what happens when a primary rule is violated.

The Treaty on Human Rights, a Trade Treaty, etc., are primary rules, while rules on state responsibility are secondary rules. This distinction between the two has no practical purpose, but it is used by the ICJ because it allows a categorization of all the existing rules. It is important to remember that secondary rules are really subject to a great evolution: when talking about them, we keep referring principally to state responsibility, but is a violation really a responsibility of the state nowadays? In traditional international law only a state is responsible for a violation of international law, but today there are also other actors, starting from multinational corporations, terroristic groups, etc.

International Court of Justice (ICJ)

The starting point of the sources of international law is Article 38 of the statute of the ICJ. The ICJ was established in 1945 by the UN Charter and began to work in 1946. The purpose of this Court is to interpret and apply international law. The Court is very authoritative; it is the major court at international level, its judgements are binding, compulsory, and they must be respected by all states. When countries don’t respect these rules, the consequence is that the state party can resort to the UN Security Council, saying that a judgement hasn’t been respected. This can work only if the parties to the dispute aren’t permanent members of the UN Security Council.

There is a case between Nicaragua vs US (1986): the Court ruled in favor of Nicaragua, it was a binding judgement, so the US had to respect it, but they didn’t. Nicaragua brought the case to the UN Security Council: the US of course voted to block the procedure because they were a party to the dispute, and this is a clear example of the weakness of the UN Security Council because of these permanent members. You can’t be a judge on your own proceedings, but in the UN Charter, the UN 5 permanent members can vote in a case that involves themselves. In this example of Nicaragua vs US, this concept is very clear.

The Court is composed of 15 judges that are elected by the UN General Assembly and the UN Security Council, so there is a double vote, the judges are independent, and they are famous international lawyers who have worked extensively on international law issues. Article 38 (1945) says that the Court must apply first of all international conventions (treaties), secondly international customs, thirdly general principles of law recognized by civilized nations. The Court only solves disputes between states. The issue that is very interesting to reflect on is that only states can “have standing” in front of the Court, an individual does not: this expression means that an actor can be present in front of the Court.

Contested territories

What about states that do not belong to the UN and therefore they are not party to the UN, to the Court and so they do not have standing? What happens to entities that are contested territories? (Contested territories have uncertain status from an international law POV). An example of contested territory is Palestine: it has a very controversial status because the UN has recognized it as a non-member state since 2011, but in the past Palestine was a party. The International Criminal Court has decided that it can rule on what happens in the occupied territories in terms of international crimes and human rights.

Kosovo is another example: it can be considered a state, because it has the capacity of exercising state powers over the territory, but it is not a state completely recognized by the majority of the other countries and most importantly it isn’t part of the UN because to be recognized party of the UN you need the vote of the 5 permanent members of the UN Security Council. For sure, it won’t be recognized by Russia.

Nagorno Karabakh is one of the best examples to clarify the concept of “contested territory”: it was part of many conflicts in history, and recently the conflict between Azerbaijan and Armenia restarted again with many consequences in terms of human rights. This entity is not recognized at all; it can’t go in front of the Court and it isn’t going to be a member of the UN. What emerges here is that Nagorno Karabakh can be brought in front of the ICJ but by other states, for example in a dispute between Armenia and Azerbaijan, but it has no direct standing (this area is formally in the territory of Azerbaijan, but it has its own structure and form of government). Some scholars define Nagorno Karabakh as a “de facto state”, so a non-recognized state which in reality actually exercises all the functions of a state.

Cyprus, on the contrary, is a state: the problem of Cyprus is that this country is divided into two parts. The Northern part has been occupied since 1974 by the Turkish forces, but this country is generally represented as a united country by, for example, the UN and the EU (Cyprus is a member state of the EU), therefore the Northern part is actually not recognized by the countries, except from Turkey of course. The case of Cyprus though was analysed by the European Court of Human Rights, considering the issue of jurisdiction of the territory of Northern Cyprus; the state however is a state and then can bring cases in front of the ICJ.

States for international law

In international law (IL), a state becomes a state when it has effective control over the territory and its population, the state must be independent and sovereign. We can start from analysing the very basic matters to understand that a country is sovereign or not: a state is sovereign when it issues passports, controls the police forces, has the capacity to check the borders, is capable of applying the law in its territory. In Kosovo, there still is the presence of other countries’ police forces (like for example Italian Carabinieri, or more generally European Union forces) which help the state also in the management of very ordinary instances, and this marks the fact that Kosovo is not a “de facto” state right now. Today then, Kosovo is still contested because of its complicated history, but it is also true that it is a state which is living its consolidating process; the fact of not being recognized by the UN basically doesn’t allow Kosovo to present in front of the ICJ. Micronations are very small, so they don’t have contractual power (ex. San Marino), but they can have standing in front of the Court.

Treaties and customs

Treaties are based on a very simple principle which is “Pacta sunt servanda”, which means that pacts must be respected. Another source of IL are customs: it is a non-written rule of IL, they are formed through the repetition of a behavior by the generality of the states, with the belief that this rule is binding and compulsory. They are composed of two elements: one is state practice, the repetition of a behavior, and the other one is “opinio juris sive necessitatis”. The opinio juris is the opinion states have of the necessity of this rule, so the need that this rule exists. According to the evolution of history of IL, a custom is also the primary source of IL, treaties came later than customs. This is linked to the concept of “ubi societas ibi ius”, when there is a society there is the law. Society started behaving in a certain way according to the necessity and afterwards it repeated this behaviour. Identifying customs is not easy, and usually international lawyers or ICJ try to reconstruct customs on specific topics.

Germany vs Denmark/Netherlands over the Continental Shelf

An example of this is the North Sea Continental Shelf which concerned Germany vs Denmark and Germany vs Netherlands: the problem here was the identification of which parts of the Continental Shelf belonged to the states involved in this case, since the coasts of Germany, Netherlands and Denmark are really close. The question to the Court was whether the identification of the portions of the sea could be done through equidistance, the Continental Shelf is a part of a territory of a state and it is underwater: in the case in which states are very close, you need to define where is the Continental Shelf of one state. The Continental Shelf is so important because it is underwater and so it is linked to concepts such as exploitation, oil, minerals and so on, therefore, there are many cases involving the matter of the Continental Shelf between countries.

According to the Netherlands and Denmark, the principle to apply was equidistance, but Germany opposed this by stating that the state practice has not developed in this sense and the Court agreed. The ICJ in fact said that equidistance was not consolidated as an international custom. This judgement in 1969 actually provided a definition of “custom”: not only must the acts concerned amount to a settled practice, but they must also be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough.

There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty (this is the perfect definition of “custom”). Some customs are very ancient, like diplomatic relations, for example immunity of the state's ambassadors, and more recent ones which developed over time.

Nicaragua vs USA (1986)

The US interfered in the internal affairs of Nicaragua: Nicaragua had a rebel movement that wanted to overthrow the government and the US supported these movements which were called “Contras”. The case was brought in front of the ICJ, even if the US didn’t want to go in front of the Court, and the escamotage used by the Court was that they were applying customary law, not treaties (in fact, the US wrote a declaration that excluded the competence of the ICJ). Therefore, by applying customary law, the US was found in violation of the principle of interference in internal affairs of Nicaragua. The US was not held responsible for the actions of the Contras, but they were responsible because they interfered with the internal affairs of Nicaragua. The case in itself is a case in history, but actually it paved the way for one of the most important judgements that the ICJ has ever decided in history.

What is important here was that the Court was asked whether the prohibition of the use of force was an international custom. The objection that was made was that many states did not comply with the rule at that time. It is not to be expected that in the practice of States the application of the rules in question should have been perfect. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should be consistent with such rules, and that instances of States conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. Then, it doesn’t matter that all states respect the rule, but what matters for an international custom to exist is that when some states violate the rule, that is considered a violation of IL. The significance of that attitude is to confirm rather than to weaken the rule.

When a state departs from a custom, this is considered as a violation of the custom but this does not mean that the custom doesn’t exist. The violation and the fact that other states recognize a violation is the proof of the actual existence of the rule itself. Let’s make some examples: when the US used the very specific techniques of investigation to contrast terrorism (after the 2001 terroristic attack), we are actually talking about torture. At an international level, there exists a clear prohibition of torture. The US was perfectly aware of the fact that there was a violation of the prohibition of torture at international level and indeed the lawyers in the US, after 11 September 2001, used the expression “special techniques of investigation”, stating that was not torture, but rather maybe an inhuman treatment. Only after several years, the US finally admitted they committed torture.

Soleimani case and Crimean case

This case involved the targeted killing of an Iranian official in Iraq. The justification by the Trump administration was that there was a threat of an armed attack against the US and that Soleimani was actually the one organizing and planning this attack. Therefore, the US intervened in order to avoid this attack, they invoked self-defence to solve the situation, so they invoked this justification to the violation of the rule of IL, since they were acting in the Iraqi soil to kill an Iranian person. Another example: when Russia tried to justify the support to the Crimean referendum, actually Russia said that they were not actually entering Crimea with their army, but basically Putin spoke of “supporters” that in that moment were simply indeed supporting the referendum, but they were not wearing the uniform. Therefore, this way, Russia didn’t interfere in the Ukraine and Crimean internal affairs.

International Law Commission

From 2011 on, the International Law Commission has been studying customary law. The International Law Commission was established in 1946 by the UN General Assembly. It is composed of experts and it has recently focused on the identification of customary law. This commission elaborated the elements of international customs, together with the identification of the elements of treaties, state responsibility, international crimes. Usually, there is a special rapporteur who writes reports, in this specific case the rapporteur was Sir Michael Wood who tried to identify the different elements of the customs. He then prepared several reports, which were examined by the Drafting Committee. In the International Law Commission there are scholars from different parts of the world and they provide their opinion, their knowledge and their legal background in order to hopefully achieve a final text. This final text in our case is of 2018: the first reading was not satisfactory, so they couldn’t reach the majority, therefore they had to draft a second proposal. Afterwards, the General Assembly endorsed what the International Commission did: it is necessary that the General Assembly confirm and adopt the work of the International Commission.

This draft conclusion is public and actually very short: “draft” means that these conclusions are not binding, they are not treaties, they might become treaties in the future, but not necessarily. Anyway, here there is the identification of the elements of the international customs, then there is the identification on how to check the practice of state, subsequently we can find the forms of state practice and they include diplomatic acts, executive conduct, and decisions of national court. Following this we can find the assessment of a State’s practice, how the practice must be general and then there is the opinio juris. There is opinio juris when there is acceptance as law, including public statements that confirm to adhere to a certain behaviour, official publication, diplomatic correspondence and government legal opinion. A resolution of an international organization can also contribute to the formulation and the evolution of an international custom and then also the decisions of courts and tribunals and teachings of the most highly qualified publicists may serve as a subsidiary means for the determination of rules of international customary law. To highlight is also the particular customary international law because it means that a custom exists only with regard to some states that belong to a region of the world.

Codified customs in a written form

To conclude this part on international customs, we focus now on codified customs in a written form. The International Law Commission has tried to codify customs, which means trying to write them down. They did this for treaties, so the Vienna Convention on the law of the treaties is a codification of customs; another example of codification of the customs is the one regarding state responsibility and what the International Law Commission does is basically trying to detect the customs belonging to a certain topic. In the drafts elaborated by the International Law Commission what emerged is that almost all the articles of the treaties are codification of customs, but usually the International Law Commission adds to these customs written forms also the evolution of international law. Therefore, if you read the report of the Vienna Convention (1969), we can understand that the majority of the articles are customs, but there are some articles, especially regarding to period of time, which consists in the evolution of the IL and not really a codification of international customs.

General principles of law

The third aspect that is mentioned in the Article 38 of the Statute of the ICJ is “general principles of law recognized by civilized nations”. This aspect of course is really outdated, and so we apply this term because it was taken by the Permanent Court of International Justice Statute. Practice indeed transformed this expression in two general principles of law. General principles of law have a very long history and they are generally considered principles that are usually common in the majority of states worldwide.