Public International Law I,II,III midterms

Public International Law Midterm I

What is public international law?

Traditional definition: related to the entities part of the international community, it can be defined as a normative process, a group of norms, in place to manage the relationship between different entities (not individuals), which provides clear rules to regulate and guarantee the independence and sovereignty of those entities. If these entities are not independent and do not have sovereignty, they do not need public international law to regulate the relationship between them. At the same time, it protects states of their power over their territory from other states.

It differs from domestic law because:

• There is not legislative power which can set norms. There is the UN, the general assembly, but these are other types of bodies and do not have the same kind of power national governments have, as central bodies.
• There is no clear system of compulsory justice, so when there is a controversy or dispute between states, they will negotiate and then agree to which body should decide on that dispute.
• And any police to ensure that laws are respected.

[Sometimes also individuals can shape PIL, as for example presidents of single countries (as of the USA) in relation to multilateralism, an example is the trade war of the USA and China, or the impact of COVID in PIL.]

Question: is a situation of hegemony compatible with international law?

If a state influences other states but at the same time this state maintains its, there is no problem since it means that the relationship between these influenced states and the most powerful one is sort of balanced and a good one. In a situation in which states have more power over others, the focus should be if, despite this influence, the states subjected are still independent and have sovereignty. If it is yes, then the situation is compatible with PIL.

Reference to the Cold War: during the Cold War, many were the states influenced by the United States, as Italy for instance, but still, they were able to preserve their independence.

History of public international law

The Westphalian Treaty of 1648 is the moment which has been defined by some scholars as funding of the international community as meant today. The idea of international community and law was born at that moment because, since it has been defined as the range of norms which clears the relationship between entities as State, it was at this particular event that states decided to get away from the power of the Emperor and the Pope. From that moment they were not influencing anymore the independence and the territory of many European states.

Most of the content of PIL was created by a European perspective and according to European interests, and looking at the international community today, we still have the same kind that there was in 1648 because the international community is still made of few equal states, with not such a difference with the past: when it was born there was no central power, and still there is this kind of organization.

About the aims, while still the original goal for the states to preserve sovereignty and independence matters, today others are the most important objects which should be achieved: human rights, protection of the environment, etc.

Evolution of the international community

As it had been formed by mostly European states, and other entities were under their influence (as the economic exploitation of the colonies, or the relationship between European states and China), at that time PIL was aimed to maintain this kind of power over the world, and all the international norms were used to obtain it.

The break arrived during the Russian Revolution, which led to the contestation of several international norms, and new interests became central in the international scenario, as the idea that people should rule themselves without the influence of other foreign powers.

After WWII the international community is not only centred in Europe, and it became more balanced, with the creation of many international organizations as the UN, and for the first time the rejection of war as a way to solve conflicts between states, while at the same time the core if PIL has remained the same, to grant independence and sovereignty.

The state and statehood

The subjects of public international law: states

Under international law, there are no international rules which define whenever states are born or can influence and regulate their origins, since the international community is made by other states, and the sovereignty of the new state would be connected to the interests of others.

For some scholars, international law cannot regulate the formation of states. Of course, in some fields (as in matter of war) or key rules international law is important, but apart from this, it does not influence the mechanism with which states are born.

The international community simply takes note of the existence of a state by the fact that an entity is able to have control (government) over a population and territory, independently of foreign power. The power of setting rules should be of the state, even though international law and the community could have some ways to influence the state, despite the power to set norms and govern is only of the government.

Two elements can be useful to understand when a state is recognised by the international law and community, internal sovereignty and external sovereignty: the ideal control of a state over its own territory and independence.

Some scholars think that external sovereignty is more difficult to identify, and the question arises of wherever is it equal to stipulate treaties. It is clear that if you are independent then you can act as an equal part and you can stipulate treaties with other states, but for some cases as ex-colonies and dominions, where total independence from foreign power was not possible, these can still achieve and stipulate some treaties and pacts.

These cannot be considered fully as states, since independence and the ability to stipulate national treaties are two different things.

Other criteria to define the states for some can be defined by the existence of a democratic government, if human rights are respected, and others. Most states in the international community do not have a democratic government, and some can be considered as Western-centric ideas of legitimacy, so cannot be used as a criterion since this would exclude a huge number of states. These like others are considered criteria which can be applied only in the Western world; they are Western parameters which cannot be applied for every state of the world. However, such parameters would make for those countries a more easier relationship between them.

There are some exceptions for some states which do not have independence or other criteria but are still considered as such: the reason can be found at the international politics level and because of matters of stability.

The rights and obligations of a state

A state can:

• Act freely over its territory and its population
• Decide freely its internal organisation

Yet, a state's action is restricted by:

• The need to respect individual rights
• The need to avoid its territory being used to commit violations towards other states/of other states' rights
• The need to observe the principle of non-intervention in the internal affairs of states

Some are called Puppet State: an entity as a government which has control over a territory and a population, but lacks independence because it receives these kinds of power from an external source.

An example is the Turkish Republic of Northern Cyprus, which is not independent since it depends on the Turkish Government, which is responsible for its action and its international relations.

European Court of Human Rights (ECtHR), Loizidou v. Turkey, 2001: the European Convention on Human Rights (ECHR) signed by Turkey applies in Northern Cyprus, so violations of the ECHR occurred in Northern Cyprus can be attributed to Turkey even if put in place by Northern Cyprus’ authorities.

Economic, cultural and political influence of a state over another does not always put into question the independence of the latter: look at the degree of influence. There are some cases in which some countries are influenced by others, but still does not prove that these cannot be considered as states for international law; also case laws in international courts can be checked in order to understand if a state can be considered as such.

Fake states: as Libya, cannot satisfy all the criteria temporarily (because of the war cannot ensure control over itself), but still are considered states. International law can be applied only between states, not in the relationship between the state, its government, and its people.

Concrete examples

Can a confederation be subject to International Law? If a confederation is a unity of sovereign states then it can be subject to international law as single ones, while one of another type (as the cantons of the Swiss confederation) cannot be, because it is organized as a sort of federal state.

Federated states, as well as regions, cannot be considered as subject to international law; federal states (the central government) can.

Palestine: its government does not depend on any other external power, but internally has some problems. The fact that the General Assembly has declared it as a «nonmember State» of the United Nations does not mean anything to international law. Recognition is not a matter of international law, but what really matters is internal-external sovereignty, and because of the conflict with Israel, especially about territoriality, some problems arose, and it cannot be defined as a full state for international law, but it has a different definition.

Recognition

From a traditional point of view, recognition is not an element of statehood, otherwise would be a relation of dependence between new born states and “old” ones. While existing states would like to welcome a new state within the life of the international community, states do it by adopting an internal act which is not constitutional or necessary, but it can be seen as a sort of welcoming in the international community. Even if it is not a key element of the formation of a state, it relates to sovereignty (if a state will go to a process of secession for example, a sort of recognition from another state would follow, since a new state is born).

Recognition can be explicit or de facto: explicit is a diplomatic declaration that different states would adopt in order to welcome the new state, while de facto means that states start to trade and have international relationships with a new state without formal welcoming.

If a region expresses its willingness to become independent from its main source of power, and other states recognize its independence, they can violate international law against the main state, because there is the principle of non-intervention in the internal politics of other states.

It is a matter of fact that recognition facilitates the life of the international community and can be used as a positive diplomatic tool and can also be subject to specific conditions (e.g. approach of EU Member States towards states born from the dissolution of the Soviet Union).

Secession and statehood: the Kosovo case

Declarations of independence from the public international law perspective

The process of secession cannot be regulated by international law, since its aim is the preservation and to guarantee internal and external sovereignty, being such processes not in line with it because of a threat to the status quo.

Passages of the illegal secession of Kosovo, considered such as those originated by violations of international rules reflecting collective interests:

• 1998: NATO’s intervention;
• 1999 Rambouillet Conference 1999: in which the condition of Kosovo should have been decided, whether a new country or an autonomous region.
• 1999 Security Council resolution 1244;
• 2000-2001: UNMIK and adoption of the Constitutional Framework, a kind of constitution deciding the relations between the domestic organs and the administrative characteristics in order to provide a resolution of being a state which could govern itself but within the powers of the older state, without the need of creating a new state through a unilateral secession, because international law was not aimed to facilitate this kind of secession.
• 2008: Declaration of independence. In order to build institutions needed to rule the region as a state, “State Building”. The UN was aimed to not make it possible for Kosovo to become independent and stopped the people of Kosovo and its parliament to move towards a unilateral secession.

– 18 February 2008 Declaration of Independence:

«1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.

2. We declare Kosovo to be a democratic, secular and multiethnic republic […]. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision making processes.

5. […] We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission.

9. We hereby undertake the international obligations of Kosovo»

The recommendation of an external source of power cannot be considered a guarantee in order to accept this Declaration of Independence, and that is considered as null, as meaningless. Independence depends on the context as well as the consequences that this can have, and this Declaration was not taken into consideration (as well as the one of Catalonia). After this there was a process of the UN administration leaving Kosovo, and after this it could manage to govern itself and to declare itself independent. Some scholars say that Kosovo still has some problems of governance, especially on the borders, which put into question and in danger the internal and external sovereignty.

Does international law include a prohibition for regions like Kosovo to declare themselves independent? This question was questioned by the International Court of Justice, which considered not important to decide whether Kosovo was or not a state for international law, but if it prohibits this kind of independence. According to its current state, there is any prohibition of unilateral secession, because this is not a matter of international law, since it has to do with the relations between states, and not between regions and their central government (internal politics).

Important! The Advisory opinion cannot be used to decide whether Kosovo could be considered a state or not, the Declaration can be.

Question of the UNGA to the ICJ: «Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?»

According to the ICJ:

• The consequences of the declaration are irrelevant to answer the question: only issue is to assess whether the declaration itself can be said a violation of international law;
• There is no express prohibition of unilateral declarations in general international law, hence the declaration did not violate any general international rule;
• Even taking into account Security Council res. 1244 and the Constitutional framework, the unilateral declaration did not violate any other international rules;
• In any case, relevant rules apply to “horizontal” relationships between states, not to “vertical” relationships, i.e. intra-state (internal) relationships.

Difference with Crimea: there was a strong influence from a foreign power; while in Kosovo there was any problem with international relations.

Rebels and national liberation movements

Rebels vs National Liberation Movements as subjects of the international legal order, having a different position than states (which are the only full subjects of international law), as limited personalities at an international level.

Beyond the state, two sub-state groups enjoy, at least to a certain extent, a legal personality and prerogatives within the international legal order, by filling certain requirements:

• Rebels: groups of people that fight against a legitimate government to get control over a state or a region of a state, mostly a matter of internal politics and not really of international law (it can matter for an international point of view only if it gets control and sovereignty over a part of territory). They have very limited personality within the international community, since it is an internal struggle and third states cannot do a lot in this;
• National Liberation Movements (NLMs): groups of people that fight against an illegitimate government/power to achieve self-determination - the control of the country is the object of struggle between the people and the external source of power, and the international community does not ask any requirements of territoriality to the NLM in order to be considered (on the contrary of rebels) - with right of signing international treaties with international subjects and obligations - since the main problem stays within the fact that the population and NLM cannot take control over its own territory.

Case of Libya: there is a legitimate government vs a part of population and older administration which has control over a part of territory and wants to get the whole country (can be considered rebels), and the international community recognizes to those rebels some opportunities and space, but cannot assist them. At a certain moment the President of France invited the representative of the rebels in order to talk about the future of Libya, violating the principle of prohibition of interference in internal politics of other states, which stated that third states couldn’t intervene and recognizing the rebels as representatives of Libya while they are still fighting in order to get control of the whole territory.

Is international law neutral towards these groups?

• Rebels, mostly neutral: only when they have effective control over a territory, a centralised organisation and are engaged in a continuous struggle, they are relevant for the international community.