LL.

M CHUNG LÊ HỒNG ÂN
Content

Chapter 1 INTRODUCTION TO INTERNATIONAL LAW

Chapter 2 SOURCES OF INTERNATIONAL LAW
Chapter 3 STATES IN INTERNATIONAL LAW
Chapter 4 LAW OF THE SEA
Chapter 5 DIPLOMATIC AND CONSULAR LAW
Chapter 6 THE SETTLEMENT OF INTERNATIONAL DISPUTES
Chapter 1: INTRODUCTION TO INTERNATIONAL LAW
Outline

1 Definition
2 History of International Law
3 Features of International Law
4 Nature and Characteristics of International Law
5 Role of International Law
6 Principles of International Law
• What is international law?

• What are the purposes of international law?

• What are some topics of international law that you can

think of?

• Do you think international law affects your every day life?

And how?
1. Definition of International Law

System of rules and principles that govern the

international relations between sovereign states and
other subjects of international law.
2. History of International Law

• The occurrence of states and laws

• The demand for making rela5onship among states

• The expansion of inter-states and inter-regional

rela5onship

• The need for a body of law governing these

rela5ons
• The Ancient time (period of slavery)

• The Middle Age (feudal period)

• The Early modern (Colonial era)

• The Modern era

3. Features of International Law

• Law-making
• Scope of regulation
• Subjects
• Enforcement
3.1 Law-making
• No international legislature to set laws for all nations; o based
on explicit or implicit consent to its provisions.

• Forms: International treaties (agreements), and customs.

Question

Why is there no common

international law-making
body in international
law?
3.2 Scope of regula0on

• Inter-states relations
• Beyond national borders
Question

Will all relations

which states
participate be
regulated by
international law?
3.3 Subjects
• States (main subjects)

• Peoples fighting for independence? (state in future)?

• State-liked entities?

• Inter-governmental Organizations (IGOs)

States (main subjects)

Criteria for recognition and statehood:

• Permanent population
• Defined territory
• Government
• Capacity to enter into relations with other states
Inter-governmental Organizations
(IGOs)
• Cons%tuted by States.

• Having States as their members and being based on

cons%tu%ve treaty.

e.g. the United Na%ons are created by the UN Charter.

Inter-governmental Organizations
(IGOs)
• International organizations as the subsidiary
subjects of International Law

• Some IGOs have a global membership

Ex. UN, ICAO, …

• While others are regional

Ex. ASEAN, EU, …

Peoples fighting for independence
Ethnic groups that fully satisfy the following two conditions are
recognized as subjects of international law:
• That group is in:

ü Fight against colonialism and dependence;

ü Fight against the apartheid regime; or
ü Fight against foreign domination.

• That group must be able to establish a leadership agency for the

fight.
Peoples fighting for independence

• South Vietnam before 1975?

Power of Peoples fighting for
independence
The subject power of the ethnic groups is closely related to the
reality of the fight and not to the recogni8on of other na8ons or to
the establishment of a state or not. Basic has:

• The right to use any means, including armed force, to liberate

themselves.
• The right to establish official rela8ons with other subjects of
interna8onal law, to par8cipate in the ac8vi8es of interna8onal
organiza8ons, to par8cipate in the formula8on of interna8onal
legal norms and principles.
State-liked entities?

• Taiwan?
• The Holy See? (The Vatican)
3.4 Enforcement

• No compulsory judicial system and enforcement

bodies.

• Acceptance of its jurisdiction: - based on consent,

voluntary; no international executive or legislative.
Foundation for the enforcement
of International law?

• The principle of Pacta sunt servanda.

• Commitments are to be respected and fulfilled in

good faith (commitments: treaties, agreements,
covenants).
Why do states
comply with
international law?
Discussion
Discussion
1. Is international law
law?
2. Is there any central
enforcer?
• UNSC?
• ICJ?
• Regional
mechanism?
Traditional modes of enforcement of international
law
• Self-enforcement
When it is in a state’s self interest to enforce international law or when the
international law norm conforms with a state’s own set of norms/identity.

• Persuasion
When a state is persuaded by other states/international actors to enforce international
law.

• Acculturation
When a state enforces international law when others around it does so.

• Coercion
When a state is forced to enforce international law by another state.
Contemporary approach to enforcement of
international Law

• Voluntary compliance.

• Enforcement under the UN Charter, Chapter VI and

VII (collective enforcement by the UN)

• Treaty enforcement mechanisms

• Judicial enforcement – ICJ and other tribunals

Collective enforcement through the UN

• UN Charter, Chapter VII – Ar0cle 39 – 51.

Threats to Peace, Breach of Peace and Acts of Aggression.

• Chapter VII provides methods including sanc0ons and use of force and are
legally binding on all States – Ar0cle 25.

• Chapter VII decisions are taken by the Security Council only – has exclusive right
to define ‘threats to peace’

• Chapter VII non-forcible measures include:

Ar0cle 40 provisional measures

Ar0cle 41 – economic and other sanc0ons
UN mechanism for enforcement of international
law

• The enforcement mechanism by the United Nations

Security Council (UN Charter, Chapter VII).
• The Security Council may:
üdetermine the existence of any threat to the peace,
breach of the peace or act of aggression, and
üimpose mandatory sanctions to try to rectify the
situation.
UN mechanism for enforcement of
international law
• The sanctions may be:
üEconomic (e.g. a trade embargo against a country
threatening the peace),
üDiplomatic (e.g. severance of diplomatic relations)
or
üMilitary (the use of armed force to maintain or
restore international peace and security).
UN mechanism for enforcement of
international law
• Armed force as the sanction

üMember states would agree to hold armed forces and facilities

ready to respond to the call of the Security Council.

üIf the Council decided to use armed force, it would call on those
forces in accordance with the agreements.

üWhen the Security Council has authorized the use of armed force to
counter an act of aggression (e.g. in Korea and the Persian Gulf), it
has simply authorized member states to "use all necessary means to
restore international peace and security."
Nature of International law

The basis for [Link] law is the common

consent (of states).
THE ROLE OF INTERNATIONAL LAW
The role of International Law
Without it, there could be chaos. International law sets up a
framework based on States as the principal actors in the
international legal system, and it defines their treatment of
individuals. Its domain encompasses human rights, disarmament,
international crime, refugees, migration, problems of nationality,
the treatment of prisoners, the use of force, and the conduct of
war, among others. It also regulates the global commons, such as
the environment, sustainable development, international eaters,
outer space, global communications and world trade.
The role of International Law

• States need to co-exist and it is necessary to establish

limits of state action.

• Today, states are in greater contact with each other,

there are issues of international concern demand co-
operation,

• International law provides a framework for the orderly

conduct of international affairs.
The role of International Law

• States may obey the law because there is a fear of

sanction or reprisal.

• International law may be enforced by reciprocity.

• States that routinely disobey international law may gain

a reputation as untrustworthy.

• They can be hated from the international community.

Principles of interna/onal law

• The UN Charter.

• 1970UNDeclarationonPrinciplesof International
Law concerning Friendly Relations and cooperation
among States 2625 (XXV).

• Major treaties of international law.

Principles of international law

• Non-use of force

• Settlement of disputes

• Non-intervention

• Cooperation

• Self-determination

• Sovereign equality

• Pacta sunt servanda

Non-use of force

States 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.
Use of force? (armed forced)

• Use of force:

üUsing force in international relation

üMainly armed force (military force)

üMilitary attack war (e.g. the attack by China in

1979 against Vietnam)

• Including the threat to use of force.

Excep&ons?

• Self defense.

• Under UN Security Council Decision (Chapter VII)

– UNSC considers there was an aggression or

an act against peace and security
Self defense
• Use of armed force (counter-attack).

• Only use in the case of being attacked (e.g. aggression, armed

conflict or invasion).

• Must be corresponding and proportionate to the degree of the

attack.

• Must be taken after the attack (Not a preventive attack).

• Must stop after the attack stops.

• State must not abuse the right of self defence.

Under UN Security Council Decision (Chapter VII)

• Restore peace and stop the aggression.

• UNSC considers there was an aggression or an act against peace
and security (Iraq invaded Kuwait 1991).
• Using of non-armed force measures (cut off diplomatic relations,
embargo, termination of economic relations…).
• Using of armed forced (collective using of forced).
• UNSC Decision on the use of armed force:
2/3 UNSC members approve
None of the Permanent member veto.
Settlement of disputes

• States shall settle their international disputes by

peaceful means in such a manner that international
peace and security and justice are not endangered

Art. 2.3 UN Charter and Chapter VI.

• Interna'onal Disputes?
Conflict, disagreement, differences ̶ Interna4onal?
• Interna'onal law?
üBetween/among states and other en44es of
interna4onal law.
üNot between individuals/legal persons of different
states.
• Regarding issues regulated by interna4onal law (trade,
Human rights, borders, sea, diploma4c rela4ons).
Peaceful means?
• Obligations
• Not to use of force
• Peaceful means include:
üNegotiation
üMediation, conciliation
üJudicial means: international court, arbitration
üOthers decided by disputants: e.g. IGOs like ASEAN,
WTO...
non-intervention
• States shall have the duty not to intervene in
matters within the domestic jurisdiction of any
State, in accordance with the Charter.
Domestic matters?

• Matters falling into the scope of jurisdiction of a

state.

• Domestic jurisdiction only refers to the exclusive

internal competence of the highest legislative,
judicial, and administrative (executive) authorities
of the State.
Intervene?

• The ‘dictatorial interference’ in the affairs of a State

‘amounting to denial of the independence of the
State’:

• Forms:

üDirect intervention

üIndirect intervention
• Excep&ons?

UN framework

Humanitarian purposes (Humanitarian interven&on)

e.g. Rwanda, Somalia.

Severe viola&on of human rights (e.g. Khmer Rouge

Genocide, Timor Leste).
Cooperation

• States shall have the duty to co-operate with one

another in accordance with the Charter.
• Why co-operation?

The nature of international law International

concerns.

To enforce other principles of international law.

• How to co-operate?

Respect and fulfill the other principles.

Self-determination

• The principle of equal rights and self-

determination of peoples

• “Peoples”? --> Nations

Self-determination?
• Applicable to peoples under colonization=> colonies
fighting for independence
• The right to determine whether;
– to become an independent state, or
– to decide the path of their nation’s development
• Third States cannot assist oppressor States in
suppressing/or denying right of self-determination (the
support to Israel...)
Sovereign equality

• All states are equal in terms of legal position.

• States have power to exercise public functions over
individuals located in its territory:
üjurisdiction to prescribe (legislative)
üjurisdiction to adjudicate (executive)
üjurisdiction to enforce (judicial)
Pacta sunt servanda
• States shall fulfill in good faith the obligations assumed by
them in accordance with the Charter.
“Every treaty in force is binding upon the parties to it and
must be performed by them in good faith”.
• Comply with international obligations and commitments.
• Not to change or refuse to comply with obligations by citing
domestic law.
Exeptions to Pacta sunt servanda principle

• Breach of domestic law on competence and procedure on

conclusion international treaties.
• Contents of treaties in contrary to international law Treaties
concluded not in equality an voluntariness.
• Fundamental change of circumstances (rebus sic stantibus).
• The other party(s) did not comply with treaty obligations.
• War (except for treaties on Human rights, borders).
International law and
Municipal/domestic Law
Theoretical foundation for the interaction
between international law and municipal law

The rela(onship between external and internal

func(ons of states.
The interaction between international law and
municipal/domestic law

• How municipal/domestic law influences

international law?

• How international law influences

municipal/domestic law?
municipal/domestic law => International law

• Influencing contents of international law.

• Municipal/domestic law => the means of implementing
international law.

• Ensuring the developing of traditional branches of

international law.

• Creating material conditions for the formation and

development of new branches of international law.
International law => municipal/domestic law

• Enhancing the development and perfecting

national legal system.

• Making national laws develop in light of a

progressive and humanity direction.