19/09 I NTRODUCTION TO
PUBLIC INTERNATIONAL LAW
Internal or external point of view:
- Internal pov : following the rules
- External pov : looking at the law and looking at its economic or
social impact
Law produces effects on the world and as we all have an opinion,
we need to consider law in both pov
What is public international law ?
In German, we’ll translate it as « law of people »
In Latin, it will be “jus inter gentes”
Not a law between cities, tribes, villages or regional
communities/ethnic group.
Nowadays, it’s more interstate law.
Session 1-2: states
Session 3: international organizations
LECTURE 1: Statehood
Statehood: what makes something a state, legal concept
Still very conflictual: Palestine or Taiwan = do we need to
recognize a state? or do it just need to exist?
Country: don’t exist in law
“[T]he existence of a State is a question of fact and not of law. The
criterion of statehood is not legitimacy but effectiveness…” Foreign
Minister Eban (Israel), arguing against a request for an advisory
opinion of the International Court on the status of Palestine: SCOR
340th mtg, 27 July 1948, 29–30.
« [N]otre pays s’est toujours fondé, dans ses décisions de
reconnaissance d’un État, sur le principe de l’effectivité, qui implique
l’existence d’un pouvoir responsable et indépendent s’exerçant sur un
territoire et une population » President Mitterand (France), with
respect to Palestinian statehood, reported in Le Monde, 24 November
1988, 7, col 1.
The 2 quotations basically agree.
For example, Palestine as well as Israel agrees on what is the area of
statehood.
Those 2 quotations also deal with the evolution of statehood. Statehood
can evolve.
Why do we care so much about the recognition of State ?
Bc it can lead to consequences => recognize a State can include
it to international organizations, to negotiations ect…
Art. I Montevideo Convention on the Rights and Duties of States of
1933: “The State as a person of international law should possess
the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; and (d) capacity to enter into
relations with the other States”.
This convention was drafted in 1933. The goal was to define “state” in
order to
A. Criteria of Statehood: a list of constitutive elements
(according to the Montevideo Convention 1933 on the
Rights and Duties of States)
1- Defined territory
A state must possess a defined geographical territory over which
its sovereignty is exercised
A state can lose its territory because of climate change for ex.
Territory: not only the soil itself but also the sea and the air .
However, it does not include space area
There is no specific element by the size of territory itself. It can be huge
as Russia or Canada or it can be as small as Monaco or Vatican ( no
need to be unified )
Soil, air = Chicago convention of 1944
Sea = UN convention on the Law of the Sea (UNCLOS)
A state can have several portions of territory
Alaska is detached from the rest of the United States
Uti possidetis juris : context of decolonizing Africa, principle that serves
to preserve the boundaries of colonies emerging as States.
During decolonization context, borders were not modified.
Disadvantage of this principle: freezing some elements of the
colonial era
Advantage: keeping a kind of stability
Territories are very often contested
- Permanent population: they aggregate individuals, they share
something in common (language /religion/culture)
- Group of individuals who share this common thing to the state
3- Administration of the state (Government)
- Principle: a state, territory must be administered and controlled.
2 conditions: effectiveness and exclusiveness => it implies
that administration doesn’t have to have a precise political form
Capacity to enter relations w/ other states:
States do not have to create intensive relationships w/ other
states. It’s their capacity and choice.
B) Nature of Statehood: an effective independence
Effective independence: formal presumption of exclusive
competence
Recognition: an act by which a state acknowledges the
opposability
There is no obligation to recognize a state. If a new state is created,
there is no legal obligation communication or by sending a letter
II- DYNAMIC APPROACH: Birth, Life and Death of state
I- Birth: self-determination
Principle that enables people subjected to alien subjugation, domination
and exploitation. Created by UN resolution 1514.
Article 1 paragraph 2 of the UN charter.
Right to self-determination: people can decide to create an
independent state or to join a state etc. …
/!\ Only a state that has been colonized can claim independence and is
allowed to say independence.
Sources of the principle:
Resolution 1415 of UNGA developed the idea of self-determination =>
many states were created due to decolonization according to the right of
self-determination.
A) Limits of the principle:
After decolonization : the access to the right of self determination
was more and more difficult because of the utis possedis juris
Borders and UN oversight :
Borders cannot be modified unilaterally by states
The UN ensures that the people concerned are identified and
can exercise their right to self-determination.
Territorial changes :
Self-determination may involve issues of secession or succession ,
but only under conditions consistent with international law
The principle balances autonomy and territorial integrity
II- Life
A- Secession
1. Principle: autonomy vs territorial integrity
Are people allowed to break from an existing state?
- Only if it’s a colonized state
- States do not have right to independence
Simply having a referendum does not give the right to
self-determination
Difficulties arise in the context of post-colonial states.
Created based on their borders during the colonization era
Created many political issues
Among these states, several religions, ethnicities, nations, languages
don’t recognize themselves as being part of the same political entity.
But cultural specificity doesn’t give the right to secession
Catalonia claims independence from Spain => illegal from the
perspective of Spanish legal system and without effect from the IL
perspective.
Not a right to independence because Catalonia is not on the list of
colonized people
Secession of Crimea from Ukraine, self-determination, exercise the
right of secession , with a referendum under the principle of self-
recognition but not recognized. => The exercise of self-
determination in secession is not allowed when human right are
violated.
[Link] in violation of a rule of international law
Secession: a part of population who wants to create a new
independent state in a state, national integrity.
Rule: only situation where it is allowed
Palestine is effectively controlled by Israel => Palestinians can claim
a right to independence with respect to israel
“Remedy secession”, based on the rule that if the minority
rights are violated in huge proportions, then the UN and ICJ
consider that the violation of peremptory IL gives the right to
claim independence
3. Independence declarations legality
Decision about Kosovo from the international court of justice : The
ICJ proclaimed the declaration of independence legal.
- Some say that to prohibit a unilateral declaration of
independence is implicit in the principle of territorial integrity.
- Some declarations had been condemned (South Rhodesia, 1963),
but this was because they related to the unlawful use of force, or
other violations of norms of general IL. The unilateral aspect is
not what caused problems.
- Some said in the case of Kosovo, they had the right to create an
independent State as a manifestation of a right to self-
determination, or pursuant to what they described as a right of
“remedial secession”
B- Succession
1- Definition
Succession of a state to another state in IL: for example, USSR or
Yugoslavia at the end of XX century. When USSR disappeared,
question of public debt of different states => divided
How far is a new state bound by the treaties and contracts
entered by the previous sovereign of the territory?
Does nationality automatically devolve upon the inhabitants to
replace that of the predecessor?
What happened to the public property of the previous sovereign
and to what extent is the new authority liable for the debts of the
old?
[Link]
Problems will be dealt with treaties :
Multilateral treaties dealing with primarily territorial
dispositions
The treaty of St Germain in 1919, which resolved some succession
questions relating to the dissolution of the Austro-Hungarian Empire.
Bilateral agreements as between
Devolution agreement is signed by the colonial power with the
successor, newly decolonized state. This system was used by the UK,
France and Netherlands.
Transferring certain powers and responsibilities from a central
government to a regional or local government.
Such agreements provided in general that all the rights and
benefits, obligations and responsibilities devolving upon the
colonial power in respect of the territory in question arising from
valid international instruments, would therefore devolve upon the
new state
This system was not seen as satisfactory by many new states and
several of them resorted to unilateral declarations transitional
period during which treaties entered by the predecessor state
would continue in force and be subject to review as to which
should be accepted and which rejected.
Relevant treaties:
Vienna Convention on Succession of States in Respect of
Treaties, 1978, which entered into force in 1996 Establishes
guidelines for how treaties apply when a state undergoes
succession
The key principles include:
1- Continuity: Treaties of the predecessor state (old state) may
continue to apply to the successor state (new or newly formed state)
unless otherwise agreed or if the nature of the treaty prevents it . The
newly formed state can decide if whether he wants to keep the old
treaties or not
2- Newly Independent States: newly independent states (often from
decolonization) are generally not automatically bound by the treaties of
the former colonial power, giving them a “clean state”
3-Territorial Application: treaties that apply to a specific territory
usually continue to apply if that territory becomes part of a successor
state.
Vienna convention on succession of states in respect of state property,
archives and debts, 1983 which is not yet in force => many of the
provisions contained in these conventions reflect existing international
law.
In many circumstances, unclear as to which rights and duties will
flow from one authority to the other and upon which basis.
Will depend upon the circumstances :
Whether what has occurs is a merger of two states to form a new
state, the absorption of one state into another, continuing state; a
secession of territory from one state to another; secession of part of
a state to form a new state; the dissolution or dismemberment of a
state to form two or more states; or the establishment of a new
state as a result of decolonization.
The role of recognition and acquiescence in this process is
especially important.
It is universally accepted that India is the continuation of British
India, and that Pakistan is a new state, or that Russia is the
continuation of USSR, or that Israel is completely different from
British mandated Palestine.
III- Extinction
A- Absence of duty for a State to maintain its own
independence
States don’t have a duty to maintain their independence but
must still respect the international rules of IL
States don’t have the right to fail people, the right to chaos but
have the right to disappear
May take place because of mergers, absorptions or ,
historically annexation or because of the dismemberment of an
existing state
B- A peaceful process
The disappearance, like the existence of a state, is a matter of
fact but legally conditioned.
IL will apportion legal consequences to factual situations and the
appreciation of these facts will take place within a certain legal
framework.
Nowadays, this will not happen in IL because of the
illegal use of force :
- Kuwait crisis of August 1990 and the consequent UN response
clearly demonstrate
- Peaceful process => today states cannot disappear because of
all military operation (3 Baltic states)
It may occur by consent:
- On 22 May 1990, North and South Yemen united or merged to
form one state: the Republic of Yemen
- On 3 October 1990, the two German states reunified because
of the constitutional accession of the Länder of the German
- The disappearance of the USSR was accompanied by the claim,
internationally accepted, of the Russian Federation to be the
continuation of that state.
While the element of continuity is crucial in the framework of
the rules of state succession , it does constitute a complication
in the context of extinction of states.
Dissolution of Socialist Federal Republic of
Yugoslavia:
Yugoslav Arbitration Commission : in Opinion No1 of 29 on
November 1991 : at that stage the Socialist Federal Republic of
Yugoslavia was in process of dissolution.
In Opinion No8 adopted on 4 july 1992, the Arbitration
Commission stated that the process of dissolution had been
completed and that the Socialist Federal Republic of Yugoslavia no
longer existed.
This conclusion was reached because Slovenia , Croatia and
Bosnia Herzegovina had been recognized as new states, the
republics of Serbia and Montenegro had adopted a new
constitution for the ‘Federal Republic of Yugoslavia’ and UN
resolutions had been adopted => referring to ‘the former SFRY’
The UN Security Council in resolution 777 in 1992 stated that
‘the state formerly known as the SFRY has ceased to exist’ ;
reiterated in resolution 1022 in 1995 in which the Security
Council, in welcoming the Dayton Peace Agreement between
the stated of the former Yugoslavia and suspending the
application of sanctions, stated that the Socialist Federal
Republic of Yugoslavia ‘has ceased to exist’
On 1 November 2000, Yugoslavia was admitted to the UN as a
new member 71, following its request sent to the Security
Council on 27 Octobre 2000;
Case of Tuvalu which disappear with climate change
LECTURE 2: Sovereignty
Introduction:
Sovereignty: The supreme authority within a territory => sovereignty
is a political concept that refers to a dominant power or supreme
authority.
In a monarchy, supreme power resides in the sovereign, such as king or
queen
I- The foundation of sovereignty
A- Notion of sovereignty
1. History
a) Modern sovereignty
Political roots
During middle age, kings had power, but did they have sovereignty?
Kings were submitted to other powers (popes, emperor)
Creation of sovereignty: by accident by the Westphalia treaties
which decide the right of effective and full competent on his
territory => political event
Intellectual roots
- Jean Bodin: born in 1776, has written “les 6 Livres de la
République » where he talks about war between religious
minority, he defunds medieval conception which separate
sovereignty and person of sovereignty (conceptual not a
personal quality)
- Hobbes: “Le Léviathan” is a social contract theory = the
sovereignty is a consequence of a contract between people =>
purpose to avoid civil war
- Locke: “Theory” is a social contract theory, a contract between
individuals and the sovereign. While people generally respect
each other’s rights, conflicts can arise, especially over property.
The state of nature is inconvenient due to the lack of a common
judge to resolve disputes. Locke argued that people voluntarily
form governments to protect their natural rights and to provide
impartial justice
- Rousseau: Even further the fact that sovereignty must be
exercised to implement the general will
Voluntarism: intellectual movement based upon idea that IL
flows from the idea that states are international legal person.
En droit international public, la thèse volontariste est le courant
de pensée dominant selon lequel le droit international ne
s’impose pas mais est crée par les Etats et pour les Etats suivant
l’acceptation volontaire. Ce raisonnement horizontal est marqué
par l’épistémologie positiviste de John Austin
IL: Laws not only for people but also with people.
b) Internationalization of modern sovereignty
State sovereignty evolved in the 20 th century with the
internationalization of modern sovereignty and the
development of international law.
In the first half of the 20 TH century, sovereignty was formalized in
law, notably with the creation of the League of Nations in
1919.
After 1945, cooperation between sovereign stated intensified,
marked by the emergence of the UN and European
institutions. This internationalization extended international law
to domestic issues such as human rights. Although sovereignty
may seem limited, it has been adapted to guarantee
democracy and self-determination within a modern
international framework.
2. Conception
a) Internal/External
Internal sovereignty: refers to the authority and control that a
political institution exercises within its own territory. It encompasses
the ability of a state to govern its population, make and enforce
laws, and maintain order within its borders. Internal sovereignty is
based on the recognition and loyalty of the citizens towards the
ruling regime.
o Personal competence: states have a competence with
respect to the nationals of their state
The French state has a competence in respect to French citizens
o Territorial competence: It is because the population is on
that territory that it is subject to that state.
o Protective (public services) competence: over the
organization of public services abroad
A military base or embassy outside of the state applicable law
in the base or embassy is the French law and not the law of the
country it is in.
Distinction between:
“De jure imperii” = “by the right of sovereignty” =>
immunité, par le droit de souverainté. Aucun Etat ne peut
juger un autre Etat pour les actions que son
gouvernement a entrepri.
Toutes les actions qu’un Etat a entrepris dans son droit d’Etat
souverain (impositions, déclarer guerre) et qu’un autre individu
random n’aurait pas pu entreprendre
It refers to the public acts that a nation undertakes as a
sovereign state. These acts are usually immune from legal
action or liability in a foreign country.
If a foreign country wants to sue another country for an action
that was taken by the government of that country, they cannot do
so under the principle of jure imperii because the government
was acting as a sovereign state and is therefore immune
from legal action
“De jure gestionis”= by way of doing business
It refers to a nation’s commercial or private acts, as opposed to
its public or governmental acts
If a foreign country owns a business in the US and is sued for a
breach of contract, that lawsuit would fall under jure gestions
because it involves the country’s commercial activity
However, if the same foreign country is sued for a human rights
violation committed by its military, that lawsuit would fall under
jure imperii because it involves the country’s public or
governmental acts.
External sovereignty: recognition and independence of a state
by other states in the international community. It involves:
- Ability of a state to conduct its own foreign policy
- Enter into international agreements
- Participating in global affairs as an equal member
Closely tied to the concept of territorial integrity and the
exclusive right of a state to govern within its borders
5 criteria to be part of the international community
o Independence
o Equality of states
o Peaceful coexistence
o Rights to sustain international relationships
o Recognition
In summary, internal sovereignty focuses on the internal
governance and control of a state, while external sovereignty
pertains to the recognition and independence of a state in the
international arena
b) Will, Freedom, Power
“A state is sovereign if it has complete power within a political
community and complete independence. It may seem that the
idea of sovereignty is objectionable because of two moral
principles, or incoherent because of a paradox. The paradox is
that a sovereign state must be capable of binding itself and must
also be incapable of binding itself
The moral principles are that no state can justly exercise
complete power internally or have complete independence ( since
complete independence would imply freedom from norms of jus
cogens and from interference with mass atrocities by the state)
Through an analogy with human anatomy, I argue that the
paradox is only apparent, and that the moral principles are
compatible with state sovereignty. So, the idea of sovereignty is a
coherent idea and sovereignty rightly understood, is a valuable
feature of states in IL. Sovereignty is to be understood as internal
power and external freedom that are complete for the purposes of
a good state. (Oxford University Press 2010)
B) Regime
The Island of Palmas case (1928) is a landmark international legal
dispute between the US and the Netherlands over the sovereignty
of a small island in the Pacific Ocean (Palmas or Miangas) located
between the Philippines and Indonesia. The case was referred to
an arbitrator, Max Huber, who ruled in favor or the Netherlands. It
is important for understanding the principle of sovereignty and
territorial disputes in International Law
The dispute:
Claimants: The US claimed the sovereignty over the Island of Palmas
based on Spain’s prior discovery of the island, which it had ceded to the
US in the Treaty of Paris in 1898 following the Spanish-Americain war
Netherlands’ Counterclaim: The Netherlands argued that it had
exercised continuous control and administration over the Island for an
extended period, which established its sovereignty.
Arbitration and ruling:
The key basis for his decision was that:
3 key principles and relevance to sovereignty:
- Effective control: (continuous and peaceful display of
authority) over the territory is more important than discovery
or historical claims. The Netherlands had demonstrated
effective governance over the island, while the US had not.
Sovereignty involves the exercise of legal and administrative
control over territory, requiring active governance and not just
a historical title.
- Intertemporal law: The arbitrator emphasized that the legal
situation must be judged by the laws in force at the time of the
dispute, not by the rules at the time of discovery
The Island of Palmas case is frequently cited in IL as a
precedent for territorial disputes and sovereignty claims. It
underscores that sovereignty is determined by the state’s
actual presence and control over a territory, rather than
mere discovery or paper claims.
II- The exercise of Sovereignty: Jurisdiction of States
A) Territorial jurisdiction
1- Content of territorial jurisdiction
a) Full and Exclusive
The concept of jurisdiction (legal authority or power of a court or other
legal body to hear and decide cases) allows the exercise of sovereignty.
Types of jurisdictions we know:
- Judicial branch: courts, organs
- Administrative branch
- Executive branch
Jurisdictions are mainly territorial and sometimes non territorial
Exclusive jurisdiction: jurisdiction over a given dispute that is
absolutely reserved to a specific court, whether this is a matter of
attribution or territorial jurisdiction
b) A systemic presumption
LOTUS JUDGMENT
The Lotus judgement of 1927, handed down by the Permanent Court
of International Justice, clarifies several principles of IL concerning
state sovereignty and jurisdiction. According to IL, states are
independent, and their obligations arise from their own will, as
expressed by convention or accepted usage. Restrictions on their
sovereignty cannot be presumed. Thus, one state cannot exercise its
power over the territory of another state without a permissive rule.
However, it is not forbidden for a state to extend the application of
its laws and the jurisdiction of its courts to act committed outside its
territory, provided this does not violate the rules of IL. In the
absence of rules explicitly prohibiting such extension, states retain
considerable freedom to adopt their own principles. However, to
avoid conflicts of jurisdiction, efforts have been made to harmonize
these principles through international conventions.
B) Non territorial jurisdiction
1- Minor non-territorial jurisdiction
a) The issue with extraterritorial jurisdiction
Extraterritorial jurisdiction: situation when a state extends its
legal power beyond its territorial boundaries
b) 2 types of jurisdictions can exercise by stated beyond of borders
Personal jurisdiction:
International rights to allow diplomatic relations: protection, taxes.
Protective jurisdiction:
All the protective restriction issue, extraterritorial => to protect
national territory
IL recognizes the right of a state to punish a limited class of
offences committed outside its territory by persons who are not
its nationals
The bombing of the American embassies in Kenya and Tanzania in
1998
All things outside the territory but have consequences on the
territory
US price or European price impact on the world = the commercial
competition
LECTURE 3: International organizations
and other public entities
INTRODUCTION
International society has created many IO (approximately 400 IO
now). Un is one of the most important
However, there is a legal issue: the Frankenstein problem which is a
situation where a creation, invention or system gets out of control
and produces unintended, harmful or unpredictable consequences
=> IO are two things at the same time :
- An entity which gathers different states
- The addition (193 for the UN) of several states willing to do
something
How do we shift from a treaty/alliance/legal link to achieving to
create an IO as a proper entity which is independent from the will
of States?
XIX = 1st technical organizations are created:
- River commissions: the central commission for the navigation
of the Rhine in 1815 or the European Danube Commission in
1856
- International administrative unions: the International
telegraph union in 1865 and the Universal Postal Union in 1874
A second wave created many other organizations after WWII (UN,
IMF=FMI, GATT, OMC)
What is considered as an IO under IL? (UN is one but not the G20)
I- Legal Status
A) Legal personality
o Domestic legal personality: having rights and obligations,
and to be concerned by national law. Concerns the concrete
functioning of the organization
US quarter= US law
Practical use of domestic legal personality:
- Siege agreement: if you want to build an IO, you need to rent
or buy a building, pay bills… All these practices are regulated by
the Siege Agreement. It also contains privileges
- Privileges: advantages given to an IO that are linked to its
status.
Tax exemptions (income tax, property tax…) This allows them to
operate without being financially burdened by domestic tax systems
Some IO may also be exempt from value-added tax on goods and
services needed for their official activities.
- Immunities: They cannot be sued or prosecuted in domestic
courts for actions related to their official functions. This immunity
ensures that IOs are not subject to undue interference by any
single country
Premises, archives property are inviolable => national authorities
cannot enter, search or confiscate them without the organization’s
consent.
Vienna convention on diplomatic relations + Vienna convention on
consular
Important because it would be unfair if one country, here the
USA, had the power to decrease the power of what is an
INTERNATIONAL Organization.
It is important to guarantee its independence.
o International legal personality: ability to have rights and
obligations under IL, to bring international claims.
The Reparation for Injuries Suffered in the Service of the UN is a
landmark Advisory Opinion issued by the International Court of
Justice in 1949. It is significant because it established that the UN, as
an IO possesses International legal personality and the capacity to
bring claims for reparation against states for injuries caused to its
agents (staff members) in the course of their official duties.
The case arose from the assassination of Count Folke Bernadotte, a
UN mediator by Zionist militant while on duty in Jerusalem in 1948.
His death raised a critical question : could the UN, an IO, claim
reparation for the injury ( the death of its agent) against the
responsible state ?
At that time, the notion of IO having legal standing to act
independently of their member states was not firmly established in
IL. The UN requested the ICJ to provide an advisory opinion on the
matter.
The ICJ’s Advisory Opinion:
The UN has international legal personality. This was a
critical step in solidifying the UN’s status as an independent
international entity, separate from its member states
The Court argued that the UN was intended to function on
the international stage and deeded such personality to
fulfill its duties => Indeed, UN could not fulfill its mandate
without an ILP. ILP exists because it must exist but it is
implicit because not written in the UN-Charter.
Rights : capacity to create laws, treaties…
Obligations: IO can be held responsible for its actions.
Privileges and immunities are the same
But UN also wants to be responsible, to give a certain degree of
justice.
You work for the UN and are not paid. Which court should you go?
You are deprived of the US court because of immunity. There is a
“dedoublement fonctionnel”= there is an organ created by the UN
that can act independently and take the role of justice.
Other options: UN can wave its immunity. “In all cases related to that
problem, the local court is competent on the matter.”
B) Competences
Difference between power and competence:
Using competences is a way to define, to frame power. This has to
do with the fact that competences must follow a principle of legality.
In the case of IO, the competences must flow from somewhere= the
will of states. That is why we say competences are attributed to
States.
However, in the case of IO, their competences are not full, exclusive
or attached to a territory => They are attached to a specific matter
defending peace
This is what we call the specialty of competence. IO are governed by
this principle
Sometimes, the competences are explicitly attributed in treaties
but is also might be implicit => Think about the functioning
purpose => IMF has no competences over capital movements but
does have competences about exchanges rates? Can their
competence be extended
IO receive competences. They are also responsible and have
obligations.
Types of competences:
Do IO enjoy an executive competence ?
IO have executive competences and they enjoy powers to control
and sanction states’ behaviour.
DO IO enjoy legislative power?
IO are indeed lawmakers but we have to divide lawmaking powers in
2 different parts :
- Internal regulation
- External regulation
DO THEY enjoy judicial power?
Some of them do have judicial bodies
Every member has the obligation to cooperate with the other
within the IO
IO are composed of States, but they can also be composed of
other IO
What about other entities?
For example, NGO
C) Different types of membership
When a State is part of an IO
(………)
LECTURE 4: INDIVIDUALS
Individuals rights emerged from WWII and they created 2
categories of rights:
- Individuals’ substantive rights
- Individuals procedural rights
The first rule is about your behavior, what you can and cannot do