CSS International Law key facts

Nature and sources

Nature, basis and history of international law

• Jeremy Bentham coined the term 'international law' in 1789.
• Hugo Grotius, De Jure Belli ac Pacis (1625): called the father of international law; Mare Liberum (1609) argued for the freedom of the seas.
• Peace of Westphalia (1648): usual starting point of the modern system of sovereign, equal states.
• Natural law: rules are found by reason and bind whatever states will.
• Positivism (Oppenheim, International Law, 1905-06): the law rests on the common consent of states.
• John Austin: international law is only 'positive international morality' because no sovereign commands and enforces it.
• Weak point of pure consent theory: new states are bound by custom that existed before them.

Sources: Article 38 of the ICJ Statute

• Article 38(1)(a) treaties; (b) custom; (c) general principles of law; (d) judicial decisions and teachings of publicists as subsidiary means.
• Article 38(2): the Court may decide ex aequo et bono (by fairness) only if the parties agree.
• Article 59: a decision binds only the parties and only in that case, so there is no binding precedent.
• Custom = state practice + opinio juris sive necessitatis.
• North Sea Continental Shelf cases (1969): practice must be extensive and virtually uniform, with a sense of legal duty.
• Asylum case (1950): a regional custom must be constant and uniform; Colombia's claim failed.
• Anglo-Norwegian Fisheries case (1951): the authority usually cited for the persistent objector.

International law and municipal law

• Monism: one legal order (Hans Kelsen). Dualism: two separate orders (Triepel, Anzilotti).
• Incorporation: customary international law is part of the law of the land without legislation (Blackstone), unless it conflicts with an Act of Parliament.
• Transformation: a rule applies in national courts only after a statute or other domestic act adopts it.
• Self-executing treaty provision: courts can apply it directly; non-self-executing: it needs implementing legislation.
• US Constitution, Article VI: treaties are part of the supreme law of the land.
• French Constitution 1958, Article 55: ratified treaties rank above statutes, subject to reciprocity.
• Vienna Convention on the Law of Treaties 1969, Article 27: a state may not use its internal law as an excuse for not performing a treaty.

Subjects and territory

States, recognition and succession

• Montevideo Convention 1933, Article 1: permanent population, defined territory, government, capacity to enter into relations with other states.
• Montevideo, Article 3: the political existence of a state is independent of recognition (declaratory view).
• De facto recognition: cautious and provisional, given when permanence is in doubt. De jure: full and final.
• Britain recognised the Soviet government de facto in 1921 and de jure in 1924.
• Estrada Doctrine (Mexico, 1930): no formal statements recognising new governments.
• Clean slate: a newly independent state is not bound by its predecessor's treaties unless it accepts them; boundary treaties continue.
• 1947: India continued the personality of British India; Pakistan joined the UN as a new member. 1991: Russia continued the Soviet Union's UN seat.

Territory, jurisdiction and immunity

• Occupation: effective control of terra nullius. Island of Palmas (1928): discovery gives only an inchoate title; what counts is the continuous and peaceful display of authority. Eastern Greenland (1933): in a thinly peopled area very little actual exercise of authority is needed.
• Cession: transfer by treaty, e.g. Alaska sold by Russia to the United States in 1867.
• Prescription: long, peaceful, uninterrupted authority without protest. Accretion: gradual natural addition; a sudden change (avulsion) leaves the boundary where it was.
• Stimson Doctrine (1932): no recognition of territorial changes made by force.
• Bases of jurisdiction: territorial, nationality (active personality), passive personality (victim's nationality), protective, universal.
• Lotus case (1927): a state may exercise jurisdiction unless a rule of international law forbids it.
• Restrictive immunity: immunity for sovereign acts (acta jure imperii), none for commercial acts (acta jure gestionis).

Law of the sea

• Territorial sea: up to 12 nautical miles from the baselines; sovereignty, subject to innocent passage.
• Contiguous zone: up to 24 nautical miles; control over customs, fiscal, immigration and sanitary matters.
• EEZ: up to 200 nautical miles; sovereign rights over living and non-living resources.
• Continental shelf: rights over seabed resources exist automatically, without occupation or proclamation.
• Innocent passage: continuous and expeditious, not prejudicial to peace, good order or security; submarines must surface and show their flag.
• High seas freedoms (Article 87): navigation, overflight, laying cables and pipelines, artificial islands, fishing, scientific research; ships are under flag-state jurisdiction.
• The Area (deep seabed) and its resources are the common heritage of mankind.

Treaties, diplomacy and responsibility

Law of treaties

• Article 26: pacta sunt servanda. Article 18: a signatory must not defeat the object and purpose before ratification.
• Article 19: a reservation is not allowed if the treaty prohibits it or if it is incompatible with the treaty's object and purpose.
• Article 24: a treaty enters into force as it provides, or when all negotiating states have consented to be bound.
• A treaty creates neither duties nor rights for a third state without its consent.
• Articles 53 and 64: a treaty conflicting with jus cogens is void; a new peremptory norm ends an existing conflicting treaty.
• Article 52: a treaty procured by the threat or use of force contrary to the UN Charter is void.
• Article 60: material breach allows termination or suspension. Article 62: rebus sic stantibus cannot be used against a boundary treaty.

Diplomatic and consular law

• 1961 Convention, Article 22: mission premises are inviolable; entry only with the consent of the head of mission; the host must protect them.
• Article 29: the person of a diplomatic agent is inviolable. Article 31: immunity from criminal jurisdiction; civil immunity has exceptions (private immovable property, succession, private commercial activity).
• Article 9: persona non grata, at any time and without explanation. Article 27: the diplomatic bag shall not be opened or detained.
• Immunity belongs to the sending state; only that state can waive it, and waiver must be express.
• Agrément: host's approval of a head of mission. Exequatur: host's authorisation of a head of consular post.
• 1963 Convention: consular immunity covers official acts only; arrest only for a grave crime on a judicial decision (Article 41); Article 36 gives arrested foreigners the right to have their consulate notified.
• Tehran Hostages case (1980): the host state breached its duty to protect the embassy and its staff.

State responsibility, nationality, extradition and asylum

• ILC Articles on State Responsibility (2001): wrongful act = conduct attributable to the state + breach of an international obligation; acts of state organs count even if beyond their instructions.
• Chorzow Factory (1928): reparation must, as far as possible, wipe out all the consequences of the illegal act.
• Mavrommatis (1924): in diplomatic protection the state asserts its own right. Nottebohm (1955): nationality needs a genuine link. Barcelona Traction (1970): a company is protected by its state of incorporation.
• Local remedies must be exhausted unless they are ineffective or offer no reasonable prospect of redress.
• Extradition: dual criminality, speciality, and the political offence exception.
• Refugee Convention 1951: well-founded fear of persecution for race, religion, nationality, membership of a particular social group or political opinion; Article 33 non-refoulement; 1967 Protocol removed the time and geographical limits.
• Territorial asylum is given inside the state's own territory; diplomatic asylum is given in a mission abroad.

Human rights, conflict and institutions

Human rights law

• UDHR 1948: General Assembly declaration, not binding as a treaty. ICCPR and ICESCR: adopted 1966, in force 1976.
• ICCPR duties are immediate; ICESCR rights are realised progressively, to the maximum of available resources.
• Non-derogable even in emergency (ICCPR, Article 4): includes the right to life and freedom from torture and slavery.
• First Optional Protocol to the ICCPR: individual complaints to the Human Rights Committee against states that accept it.
• Genocide Convention 1948: acts with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.
• Racial Discrimination Convention 1965; CEDAW 1979 (women); Convention against Torture 1984 (needs official involvement; no exceptional circumstances justify torture); Convention on the Rights of the Child 1989 (under 18; best interests of the child).
• Regional: European Convention 1950 (court at Strasbourg); American Convention 1969 (court at San Jose); African Charter on Human and Peoples' Rights 1981.

Use of force and peaceful settlement of disputes

• Article 2(4): no threat or use of force. Article 51: self-defence if an armed attack occurs, reported at once to the Security Council, until the Council acts.
• Self-defence must be necessary and proportionate. Caroline (1837): necessity that is instant, overwhelming, leaving no choice of means and no moment for deliberation.
• Nicaragua case (1986): collective self-defence needs the victim's declaration that it was attacked and its request for help.
• Chapter VII: Article 41 measures not involving armed force (sanctions); Article 42 armed force.
• Security Council substantive decisions: 9 of 15 votes with no permanent member voting against; an abstention is not a veto.
• Good offices: third party only brings the sides together. Mediation: third party proposes terms. Inquiry: fact-finding. Conciliation: a commission proposes non-binding terms.
• Arbitration: the parties choose the arbitrators, often by a compromis, and the award binds. Permanent Court of Arbitration: Hague Convention 1899, seat at The Hague.

International humanitarian law

• Geneva Conventions 1949: I wounded and sick on land; II wounded, sick and shipwrecked at sea; III prisoners of war; IV civilians.
• Additional Protocol I (1977): international conflicts. Additional Protocol II (1977) and Common Article 3: non-international conflicts.
• Henri Dunant, moved by the battle of Solferino (1859), inspired the Red Cross and the first Geneva Convention (1864).
• Distinction: attack only combatants and military objectives, never civilians or civilian objects.
• Proportionality: no attack where expected civilian harm is excessive compared with the concrete and direct military advantage.
• Military necessity allows only what is needed for a lawful military aim; humanity forbids superfluous injury and unnecessary suffering. Perfidy is prohibited.
• Grave breaches include wilful killing, torture or inhuman treatment and taking of hostages; superior orders are no defence, only possible mitigation.

International courts and organisations

• ICJ: 15 judges, no two of the same nationality, nine-year terms, elected by the General Assembly and the Security Council voting separately.
• Consent to ICJ jurisdiction: special agreement, a clause in a treaty, or declarations under the optional clause, Article 36(2).
• ICJ judgment: binds only the parties (Article 59), final and without appeal; non-compliance may be taken to the Security Council.
• Advisory opinions: requested by the General Assembly, the Security Council and other authorised organs and agencies, never by states.
• ICC: Rome Statute 1998, in force 1 July 2002, seat at The Hague; crimes are genocide, crimes against humanity, war crimes and aggression.
• ICC: cases start by state party referral, Security Council referral or the Prosecutor's own motion; no jurisdiction over persons under 18; official capacity gives no exemption (Article 27).
• Reparation for Injuries opinion (1949): the UN has international legal personality and implied powers needed for its functions.