INTERNATIONAL LAW

While it is true that international law deals with international disputes, like any other system of law the role of international law is to regulate relations and thus help to contain and avoid disputes in the first place. The substantial part of international law, therefore, does not concern dispute resolution but dispute avoidance. It focuses on the day-to-day regulation of international relations.Sam Blay The Nature of International Lawinternational lawreport in INTROduction TO INTERNATIONAL RELATIONS

PURPOSE OF THE REPORT PAPER:This document is intended to provide students an overview of international law and the structure of the international legal system. In many cases it oversimplifies the law by summarizing key principles in less than one page in order to provide the student with an overview that will enhance further study of the topic. 1OVERVIEWInternational Law- Public, Private and Supranational-Is Intl Law a Law in a true sense or not?-Intl Law and Domestic Law- Why do States obey Intl Law?-Subjects of Intl Law How do Intl Law and Domestic Law interact?2SOURCES OF INTERNATIONAL LAWIntl Conventions and Treaties-Customs (Jus Cogens)-General Principles of Law-Judicial Decisions and Writings of Publicist-Hard and Soft Law3SANCTIONS Unilateral Sanctions- Collective Sanctions- 4HIERARCHY OF NORMSHierarchy among the sources of International law5Jurisdiction of StatesPrinciples of Jurisdiction-Immunities from Jurisdiction6Principles Governing State RelationsGeneral Principles Governing Friendly Relations7Responsibility of States for Wrongful ActsResponsibility of States for internationally wrongful acts8Status of the Seas, Outer space and AntarcticaHigh Seas-Exclusive Economic Zone (EEZ)-Deep Sea Bed-Outer space-Antarctica9UNCLOSUNCLOS-ITLOS1O INSTITUTIONSUnited Nations- Security Council- General Assembly-ICJ-Secretariat- Trusteeship Council- Economic and Social Council-Specialized Agencies- International Tribunals-ILC-ICC-WTO-APEC

I. What is International Law?International law is the universal system of rules and principles concerning the relations between sovereign States, and relations between States and international organizations such as the United Nations. A.PUBLIC, PRIVATE AND SUPRANATIONAL INTERNATIONAL LAW

Private international lawPrivate international law/conflict of laws as used in its broad sense, means the set of legal rules governing international relations between private individuals. It addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case. It is used to determine the juridical jurisdiction of a State on a certain case involving a foreign element. Public International LawPublic international law refers to those laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with natural and juridical persons. It includes treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law. The public international law aims to monitor the behavior between states since where there exists a community of states, the maintaining of law and order becomes essential. Supranational Law (Having power or influence that transcends national boundaries or governments) Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.B.IS INTERNATIONAL LAW A LAW IN A TRUE SENSE OR NOT?

The status of International Law, that whether it is a Law or not is a long debate. Jurist have different views, and as a result, various schools of thought came to existence.

1. International law is NOT a Law in a true sense- According to this school of thought, International law is not a law in a strict legal sense. The following are the arguments in support of their view:

There is NO superior legal authority There is NO Legislature to enact the rules as in Municipal Law There is NO Judicial Machinery to interpret the laws There is NO Executive authority to enforce International Law International Law is frequently violated`2. International Law is a Law in a true sense-The following are the arguments in support of this view:

For the definition of a law, Political Superior Authority is NOT necessary. There is a Legislative Assembly in the shape of the General Assembly and the Security Council and the States which enter into Treaties also act as Legislating body. There is a potent Judicial Machinery in the shape of the ICJ, its decisions are binding when the parties with their mutual consent refer to it. It is wrong to say that there is no Executive Authority to enforce International Law because the adverse view of the member States and fear of cessation of economic and diplomatic ties and fear of war acts as a sanction for its implementation. It is right to say that International Law has frequently been violated but the status of International law as a true law should NOT be denied because law is law and obedience from its subjects is another thing. Municipal Law in fact is also frequently being violated. Moreover, State themselves consider it binding upon them. 3. International Law is Law but a weak Law- The following are the arguments in support of this view: There is NO coercive agency to enforce it It has FREQUENTLY been violated Superpowers interpret it according to their wishes Though there is an International Court of Justice, it however enjoys NO compulsory Jurisdiction, its decisions are only binding when both parties refer to it. There are sanctions to enforce it but proved to be inadequate to attain International Justice.

C.Difference between International Law and Domestic LawInternational law is concerned with the rights and duties of States in their relations with each other and with international organizations. Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State. International law differs from domestic law in two central respects: The law-making process Enforcement D.WHY DO STATES OBEY INTERNATIONAL LAW?Even though international law does not have the coercive enforcement processes available to domestic law, it is in the interests of most States to ensure stability and predictability in their relations with other States. By complying with their obligations, they help to ensure that other States comply with theirs. E.SUBJECTS OF INTERNATIONAL LAWA subject of international law (also called an international legal person) is a body or entity recognized or accepted as being capable of exercising international rights and duties.The main features of a subject of international law are: the ability to access international tribunals to claim or act on rights conferred by international law; the ability to implement some or all of the obligations imposed by international law; and ability to have the power to make agreements, such as treaties, binding in international law; to enjoy some or all of the immunities from the jurisdiction of the domestic courts of other

1. STATESA State has the following characteristics: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other States. Some writers also argue that a State must be fully independent and be recognized as a State by other States. The international legal system is a horizontal system dominated by States which are, in principle, considered sovereign and equal.

Rights of States

Sovereignty Equality Political independence and territorial integrityOther rights of States. . . Responsibility to protect Self-determination Creation and Recognition of New States

1. International Organizations International Organizations are established by States through international agreements and their powers are limited to those conferred on them in their constituent document. International organizations have a limited degree of international personality, especially vis--vis member States. They can enter into international agreements and their representatives have certain privileges and immunities 2. Nationality of individuals. Individuals are generally not regarded as legal persons under international law. Their link to State is through the concept of nationality which may or may not require citizenship. Nationality is the status of being treated as a national of a State for particular purposes. Each State has wide discretion to determine who is a national. The most common methods of acquiring nationality at birth are through one or both parents and/or by the place of birth. Nationality can also be acquired by adoption and naturalization. 3. Corporations (MNCs/TNCs)Large multinational companies may operate all around the world, and their profits may outstrip the resources of some States. Corporations interact with States they become legal entities under municipal law; they negotiate with States sometimes from a position of great power. Some companies are granted very favorable conditions (for example, in relation to minimum work standards, tax treatment, or immunity from legal suit) by States eager to attract inbound foreign investment. Sometimes corporations are closely connected to their home State or controlled by their home States government4. National Liberation MovementsThe Palestine Liberation Organization and Polisario (representing the people of Western Sahara, occupied by Morocco) are examples of organizations having a limited international personality through recognition by some States, or the United Nations, as representatives of their peoples.D.HOW DO INTERNATIONAL LAW AND DOMESTIC LAW INTERACT Monism. In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Dualism. This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations. II. SOURCES OF INTERNATIONAL LAWA.TREATIESTreaties are written agreements between States that are governed by international law. Treaties are referred to by different names, including agreements, conventions, covenants, protocols and exchanges of notes. If States want to enter into a written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of Understanding and provide that it is not governed by international law. Treaties can be bilateral, multilateral, regional and global.The process for concluding a treaty generally includes the following steps. . . Adoption Signature Ratification Accession Entry into ForceB.CUSTOMCustomary international law describes general practices accepted as law by States.The task of identifying or describing customary international law, involves consideration of the following elements: the degree of consistency and uniformity of the practice; the generality and duration of the practice; the interests of specially affected States; and the degree to which the States who adopt the practice do so from a recognition that the practice is required by, or consistent with prevailing international law. The shorthand for the belief that the practice is required by law is opinio juris et necessitates, a Latin phrase.Jus CogensThere are some principles of international law, however, that have become so widely accepted that they are now considered to be fundamental principles and rules that may not be altered or broken. Such principles currently include the prohibitions against slavery and torture, genocide, the use of armed force, and piracy on the high seas; and more positively, the principle of racial non-discrimination; and, the right to self determination. These principles of international law are known as jus cogens.C.GENERAL PRINCIPLES OF LAWAnother source of international law is general principles of law. The ICJ is directed to consider the general principles of law recognized by civilized nations in its decision making. The preferable view seems to be that international tribunals use domestic law selectively where situations are comparable to make the administration of international law work.D.JUDICIAL DECISIONS AND WRITINGS OF PUBLICISTThe Statute of the International Court of Justice says that the Court shall apply judicial decisions and the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law. Traditionally, judicial decisions and writing of publicists do not themselves form a source of international law, but help the Court to identify the scope of customary law, proper interpretation of a treaty, or existence of general principles. A. HARD AND SOFT LAWThe terms hard law and soft law are often used in writings about international law. Hard law refers to binding law such as resolutions of the UN Security Council, treaty obligations to which a State has agreed and rules of customary international law.

The term soft law is used in two different situations.

1. Where treaty obligations are expressed in vague or flexible terms, rather than clear and concrete terms. This type of drafting is used in many legally binding international law instruments, also known as framework conventions. 2. Where principles and Guidelines are not bindingPrinciples of this kind can develop from international conferences, or be formulated in non-binding agreements. Soft law in this sense can articulate principles that may subsequently develop into binding customary law. III. SANCTIONS UNDER INTERNATIONAL LAW

A.COUNTERMEASURES

Unilateral sanctions are impermissible under international law as the Charter of the United Nations addresses only collective economic measures. Unilateral sanctions are usually imposed by an individual state which resorts to unilateral sanctions as a primary tool of foreign policy with an objective to modify the targeted countrys behavior. Countermeasures in which case their legality depends on their fulfilling the conditions laid down in the general law on State responsibility as codified by the International Law Commission.

B.COLLECTIVE SANSTIONSIn case of violation of an International right or non performance of an International legal duty by a State, collective measures may also be taken by other members of United Organizations. International Law recognizes the following sanctions against a wrong-doer subject of International Law.

Economic Sanctions- typically a ban on a trade, possibly limited to certain sectors such as armaments or with certain exceptions (such as food and medicine) Financial Sanctions- Military Sanctions- military intervention Diplomatic Sanctions- the reduction or removal of diplomatic ties, such as embassies. Diplomatic sanctions are political measures taken to express disapproval or displeasure at a certain action through diplomatic and political means, rather than affecting economic or military relations. Measures include limitations or cancellations of high-level government visits or expelling or withdrawing diplomatic missions or staff. Sports Sanction-- preventing one country's people and teams from competing in international events. Sport sanctions are used as a way of psychological warfare, intended to crush the morale of the general population of the target country.C.EUROPEAN UNIONLike States, international organizations may also adopt unilateral sanctions against States or other international organizations, and the EU has been particularly active in this respect. A first part of the presentation will deal with some terminological clarifications on unilateral sanctions. The European Union has a large number of sanctions regimes with various foreign policy aims. These measures all have the same legal form; Decisions made by the Council of the European Union, and Implementing Regulations, which are directly applicable in Member States of the European Union

IV. HIERARCHY OF NORMSIn theory there is no hierarchy among the three sources of law listed in Article 38 of the ICJ Statute. In practice, however, international lawyers usually look first to any applicable treaty rules, then to custom, and last to general principles.

V. JURISDICTION OF STATES

A.Principles of JurisdictionThe concept of jurisdiction refers to the power of a State to prescribe and enforce criminal and regulatory laws and is ordinarily based on the territorial principle, under which a State has jurisdiction over activities within its territory.

B.IMMUNITIES FROM JURISDICTIONThe principle of sovereign equality of States requires that the official representatives of one State should not be subject to the jurisdiction of another State

VI. PRINCIPLES GOVERNING FRIENDLY RELATIONS BETWEEN STATESThe general principles governing friendly relations between States are set out in UN General Assembly Resolution 2625: 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 purpose of the United Nations Pacific settlement of disputes Non-intervention in matters within the domestic jurisdiction of any State, in accordance with the Charter Co-operation with one another in accordance with the Charter Equal rights and self-determination of peoples Sovereign equality of States States shall fulfill in good faith the obligations assumed by them in accordance with the Charter

VII. RESPONSIBILITY OF STATES FOR WRONGFUL ACTSThe 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts set out the principles in this important field of international law. States are responsible to other States for their internationally wrongful acts. A State commits internationally wrongful act when conduct consisting of an act or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation owed by that State to the injured State or the international community.

VIII. STATUS OF THE HIGH SEAS, OUTER SPACE AND ANTARCTICA

A. HIGH SEASThe high seas are governed by several fundamental principles. First, no State may purport to assert sovereignty over any part of the high seas. Second, all States have the right to exercise the freedoms of the seas, including freedoms of navigation, freedom of over flight, freedom to lay submarine cables and pipelines, and freedom to conduct marine scientific research.

B. EXCLUSIVE ECONOMIC ZONECoastal States are permitted to claim an exclusive economic zone (EEZ) of up to 200 nautical miles from the baselines from which the territorial sea is measured wherein they have the sovereign right to explore and exploit the natural resources of the sea and of the seabed and subsoil.

C. DEEP SEA BED BEYOND THE LIMITS OF NATIONAL JURISDICTIONThe natural resources of the deep sea bed beyond the limits of national jurisdiction are vested in mankind as a whole under the principle of the common heritage of mankind.

D. OUTER SPACEThe principles governing the use of outer space are similar to those that the high seas. First, no State may purport to assert sovereignty over any part of outer space. Second, all States have the freedom to use outer space for peaceful purposes. Third, States on whose registry a space object is launched shall retain jurisdiction and control over the space object and over any persons on board the space object. .

E. ANTARCTICAOfficial claims to sectors of the ice-covered continent of Antarctica were made by seven States The Antarctic Treaty froze the claims of the seven claimant States, and stated that no new claims to sovereignty would be made. It also stated that Antarctica should be used only for peaceful purposes. The Antarctic Treaty permits States parties to conduct scientific research in Antarctica and its provisions are generally respected by non-party States as customary law.IV. UNCLOS AND ITLOS

A.UNCLOSTheUnited Nations Convention on the Law of the Sea(UNCLOS), also known as the Law of the Sea Treaty, is the international agreement that defined the limits of the territorial seas of nations and the areas in which they could exploit marine resources.It also established the rules for the use of the high seas for international navigation, and outlined the rights and responsibilities of nations in the protection of the marine environment.RATIONALE:In the past, the three-mile rule was traditionally used by coastal states to determine the limits of their territorial waters. After World War II, however, states began extending their control beyond previous limits.In 1945, due to domestic oil demands, the United States claimed the right to harvest the natural resources in its continental shelf. Chile, Peru, and Ecuador asserted sovereign rights over a 200-mile zone, hoping to limit the access of foreign fishing fleets and prevent the depletion of fish stocks in their adjacentseas.PROVISIONS OF THE UNCLOS:

The UNCLOS provides for the following:Baseline Determined by connecting points on the coastline from a large map, this is the starting point for measuring the maritime territory of a coastal state.Territorial sea This is the belt of sea 12 nautical miles from the baseline. In this area, the coastal state exercises sovereign rights and may arrest foreign ships.Contiguous Zone This is the maritime area not exceeding 24 nautical miles from the baselines. The coastal state exercises authority over this area to the extent necessary to prevent infringement of its customs, fiscal, immigration, or sanitation authority over its territorial waters. This is a response to the practice of foreign ships lingering beyond a states territorial sea, and thus beyond its criminal jurisdiction, where they commit acts inimical to the coastal state.Exclusive Economic Zone or EEZ This is the maritime area within 200 nautical miles from a countrys baseline. Within the EEZ, the coastal state has rights over the economic resources of the sea, seabed, and subsoil to the exclusion of other states. However, other nations have the right of navigation and overflight over this area, subject to the regulation of the coastal state.Continental Shelf This is the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea. The continental shelf extends 200 nautical miles, and in some cases may extend up to 350 miles, following the natural prolongation of the soil. The coastal state has the right to explore and exploit the natural resources in this area, but this right does not extend to other materials such as shipwrecks.

B.ITLOSThe establishment of the International Tribunal for Law of the Sea is to bring the system of dispute settlement of the United Nations Convention on Law of the Sea into full operation. It is the latest international judicial institutions which was established after the entry into force of the United Nations Convention on Law of the Sea in November 1994.

IV. INSTITUTION

A.UNITED NATIONS MEMBERSHIP The UN was established in 1945, with 51 members, including Australia. As at April 2009, it has 192 members which encompasses practically all States. Membership is open to any country that is peace loving and accepts the obligations of the Charter. The purposes of the UN are to maintain international peace and security, including by prohibiting the use of force in international relations (article 2(4) of the UN Charter) and authorizing collection security to restore peace (Chapter VII of the Charter); to develop friendly relations between States; to achieve international co-operation in solving international problems, and co-ordinate and harmonize actions to achieve these ends. (Article 1, UN Charter). 1. THE SECURITY COUNCILThe Security Council consists of 15 States the five permanent members (USA, UK, France, Russian Federation and China), and ten States elected for terms2. GENERAL ASSEMBLY All members of the UN are represented in the General Assembly and each has one vote. The role of the General Assembly is to consider, discuss and make recommendations. The General Assembly cannot make recommendations in relation to a dispute or other situation which is under consideration by the Security Council. 3. INTERNATIONAL COURT OF JUSTICE (ICJ) The ICJ was established with the UN in 1945. It succeeded the Permanent Court of International Justice and is located in The Hague. It has 15 permanent members, elected for a nine-year term. Elections are held every three years, and one-third of the judges retire each time. If the Court does not include a judge of the nationality of a State which is a party in a case, that State can nominate a judge ad hoc to sit on the case. Decisions are by majority vote, and there is no appeal. 4. SECRETARIAT The Secretariat consists of the administrative staff of the UN, and is essentially an independent international public service. It is headed by the Secretary-General, who is appointed for a five-year term by the General Assembly on the recommendation of the Security Council. The Secretary-General can bring matters to the attention of the Security Council and is not only a bureaucrat but also a diplomat and peacemaker.5. TRUSTEESHIP COUNCIL The Trusteeship Council was established to supervise the administration of 11 non-self governing countries by other countries. Australia was trustee for New Guinea until its independence in 1975. By 1994 all trust territories had attained self-government or independence, either as separate States or by joining neighboring independent countries. Palau was the last trust territory. The Trusteeship Council suspended its operations on 1 November 1994. 6. ECONOMIC AND SOCIAL COUNCIL ECOSOC has 54 members elected by the General Assembly. The five permanent members of the Security Council are represented, and the other members are elected so as to achieve an equitable geographic distribution7. HUMAN RIGHTS COUNCIL The creation of the Human Rights Council is intended to: accord appropriate importance within the UN to human rights by creating a higher status, Council level organization, as for security (Security Council) and development (Economic & Social Council). All three concepts are central to the UN Charter; address a perception that the Commission on Human Rights had become overly politicised, ineffective and selective in its work; to make the Human Rights Council a smaller standing body (that means, always working rather than working during only one part of the year) with members elected by all members of the General Assembly, taking into account the candidate States contribution to the promotion and protection of human rights and the need for equitable representation across the five UN geographic regions; and establish a new system of universal periodic review of the human rights performance of UN member states8. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEESThe UNHCR was established in 1951 to provide protection and assistance to refugees in States that are not parties to the Convention Relating to the Status of Refugees 1951, and to assist those States that are parties to implement the Convention. 9. SPECIALIZED AGENCIES Autonomous organizations linked to the UN through special agreements include: ILO (International Labor Organization) FAO (Food and Agriculture Organization) UNESCO (UN Educational, Scientific and Cultural Organization) WHO (World Health Organization World Bank group IMF (International Monetary Fund ICAO (International Civil Aviation Organization UPU (Universal Postal Union ITU (International Telecommunication Union WMO (World Meteorological Organization IMO (International Maritime Organization. WIPO (World Intellectual Property Organization). IFAD (International Fund for Agricultural Development UNIDO (UN Industrial Development Organization) UNDP (UN Development Program IAEA (International Atomic Energy Agency) World Trade Organization (WTO)

10. ASIA-PACIFIC ECONOMIC FORUM (APEC) In 1989, APEC was formed by Australia and Japan. There are now 21 members, including the USA, China, Japan, Indonesia, Malaysia, Mexico and Russia. There is an annual Ministerial Meeting, and other Leaders Meetings and Specialist Ministerials to develop policy on particular issues. APEC has two objectives: to liberalize trade and investment in the region; and a program of economic and technical co-operation.

11. ASSOCIATION OF SOUTH EAST ASIAN NATIONS (ASEAN) An association of ten South East States (Brunei Darussalam; Cambodia; Indonesia; Lao Peoples Democratic Republic; Malaysia; Myanmar; Philippines; Singapore; Thailand; Viet Nam) to accelerate economic, social and cultural development and progress, and to promote regional peace and stability

12. Role of the International Law Commission (ILC)The ILC was established by the UN in 1948. The 34 members of the ILC are elected by the General Assembly after being nominated by member States.

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