PRINCIPLES OF INTERNATIONAL LAW

Transcription

1 RIR6007/RIO7009, 2. Nov PRINCIPLES OF INTERNATIONAL LAW 1 Sovereignty Equality Consent Duty of States to co-operate Non-intervention Settlement of international disputes by peaceful means Prohibition of threat or use of force Right to self-defence Respect for human rights Equal rights and self-determination of peoples Reciprocity Literature: Guzman The whole book Anghie 48-52, , , Malanczuk th edn., alternatively 7th edn. 32, 1-8, 9-34 Brownlie , /Kiviorg jt /

2 2 Pursuant to Article 38 (1) of the Statute of the International Court of Justice, the general principles of law recognized by civilized nations constitute a source of international law. Article 38: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Principles of international law are considered that important that their existence is recognized by every major legal system.

3 3 Distinguished are: sovereignty of the peoples; State sovereignty. I SOVEREIGNTY Sovereignty of the peoples: The Charter of the UN begins with the words: We the peoples of the United Nations determined thus, the Charter of the UN refers to sovereignty of the peoples. State sovereignty: Corfu Channel case (The United Kingdom vs. Albania) the first case registered in the Register of the ICJ (not the PCIJ!) of 22 May 1947, judgment of the year The case concerns almost all principles of international law, perhaps except international treaty law and its principles. Parties of the case: The United Kingdom and Albania. x Characteristics of State sovereignty Immunities and other limits to sovereignty

4 4 II EQUALITY Article 2 (1) of the Charter of the UN: The Organization is based on the principle of the sovereign equality of all its Members discuss the Article in the light of the veto-system in the UN! III CONSENT All legal constraints on States must be approved by States a State is only bound by the obligations it consents to. The International Court of Justice has explained that international law flows out of the free will of sovereign States. Jan Klabbers is of opinion that it should not be presumed that constraints of that principle are allowed. Nevertheless, according to such theory, international law is permissive law, which means that as long as not forbidden things are permitted, that in turn contravenes the idea in the case LOTUS. QUESTION: What is the consequence if a State refuses to give its consent or does not consent any more?

5 5 IV DUTY OF STATES TO CO-OPERATE The duty of States to co-operate with one another inter alia means internationalization of waterways. Co-operation is also required by technical and commercial developments. The duty to co-operate can be seen, for instance, in co-operation within international organizations. V NON-INTERVENTION The principle means (Merilin Kiviorg): 1) prohibition of the threat or use of force; 2) international co-operation; 3) development of international human rights. The principle first and foremost prohibits the threat and use of force. International law has not developed a general rule prohibiting the use of other means of intervention (for instance, economic sanctions, boycott, political destabilization, propaganda, agitation, influencing international financial institutions, etc.). If the aim of an interference is to harm a State s sovereign rights and to benefit from that this may be contrary to the principle of noninterference.

6 6 VI SETTLEMENT OF INTERNATIONAL DISPUTES BY PEACEFUL MEANS Article 2 (3) of the Charter of the UN: All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. This principle has grown out of international customary law and thus applies toward all States. The means of pacific settlement of disputes are written to Article 33 of the Charter of the UN as follows: negotiations; enquiry; mediation; conciliation; arbitration (ad hoc and permanent); judicial settlement. The list is not closed.

7 7 VII PROHIBITION OF THREAT OR USE OF FORCE Article 2 (4) of the Charter of the UN: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. According to M. Kiviorg and P. Malanczuk: the general prohibition of the threat or use of force became the general principle of international law after the II World War. The principle has acquired the status of international customary law and is binding also to the States not Members of the UN. Consequently, the norm may be classified as ius cogens norm that is an absolute prohibition and allows exceptions only under certain determined circumstances. VIII RIGHT TO DELF-DEFENCE Article 51 of the Charter of the UN: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

8 8 Conditions of self-defence: 1) If an armed attack occurs; 2) The attack is addressed against a Member of the UN (=State); 3) The attack is armed; 4) Self-defence must be proportional compared to attack: 5) Co-operation with the Security Council of the UN. IX RESPECT FOR HUMAN RIGHTS The real career of human rights in Europe started after the II World War. Council of Europe European Convention on Human Rights European Court of Human Rights X EQUAL RIGHTS AND SELF-DETERMINATION OF PEOPLES Article 1 (2) of the Charter of the UN: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

9 9 XI RECIPROCITY The subjects of international law mutually respect certain rights or obligations. Non-fulfilment by one subject of an obligation is the basis for non-fulfilment of another subject. x Those above are not the only principles of international law, but recognized are also: general principles of law; principles of law related to particular areas, for instance, principles of international treaty law (for instance, pacta sunt servanda; rebus sic stantibus, etc.), principles of administration of law (fairness, principle of legal expectations, res inter alios acta, etc.), etc. Main differences between international law and State law (Jan Klabbers, but double translation): 1) much politics in international law; 2) enforcement of international law is problematic; 3) absence of the ultimate legislator; 4) absence of international police; 5) absence of such sanctions that could be there; 6) jurisdiction of international adjudicators is not obligatory, but depends on States consent. (See also Peter Malanczuk, pp. 3-5)

10 10 WHY INTERNATIONAL LAW STILL WORKS? (Jan Klabbers, but double translation, and influence of Benedict Kingsbury): 1) States are free to obey; 2) societal pressure on States; 3) bureaucratic inertia; 4) high degree of involvement and influence of States (so called Foreign Office model in international law); 5) principle of reciprocity; 6) high degree of (legal)politics.