What is public International Law
Transcript of What is public International Law
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What is international law?
International humanitarian law (IHL) is part of international law. Therefore, basic
knowledge of international law is necessary for the understanding of IHL. International
law is a combination of rules and customs governing the relations between states in
different fields, such as the law of the sea, space law, trade law, territorial boundaries of
states, and diplomatic relations.
The sources of international law are treaty law and international customary law.
Treaty law
Treaty law composes of treaties, which are agreements that states willingly sign and
ratify and are obliged to follow. Agreements between states govern the mutual relations
between them and may be called conventions, statutes or protocols. Agreements are only
legally binding on states that signed and also ratified them. The basis of Treaty law is the
rule of law pacta sunt servanda, which means, that agreements must be honoured, and
adhered to.
International customary law
Unlike treaty law, which must be followed only by states that are parties to the
agreement, international customary law is binding upon all states, irrelevant of whether
they have ratified a treaty, which contain the rule in question, or not.
When states act consistently in their international and internal relations during a long
period of time, these actions/practises become accepted by the international community
as applicable law.
International customary law is compromised of all the written or unwritten rules that
form part of the general international idea of justice.
Two criteria
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There are two criteria for identifying a rule as part of international customary law.
Opinio Juris - Opino Juris is the expressed opinion of states that their actions have a
legal basis. It is thus states themselves (subjective criteria) that recognise certain legal
practices or rules as being legally binding.
Usus - Customary law is confirmed through the actions of states (objective criteria) in
accordance with what is expected of them by international jurisprudence. States' actions
are manifested through their official statements and actual actions.
International customary law is based on prolonged and consistent actions by most states
in the world. When states act constintently in their international and internal relations
during a long period of time these actions/practices become accepted by the international
community as applicable law.
Examples of international customary law are the right to life, the prohibition of torture,
and that civilians should not be the object of an attack.
Jus cogens
Some rules of international law are part of the Latin concept of "jus cogens", also referred
to as peremptory norms, and meaning "the compelling law". Jus cogens status is the
highest status that can be attained by any principles or norms in international law.
Jus cogens status is given only to the most fundamental rules of international law, which
are recognised and accepted by the international community as rules from which no
exceptions can be made (article 53 of the Vienna Convention on the Law of Treaties). All
states are therefore obliged to follow jus cogens rules at all times. Crimes which have
attained the status of jus cogens are particularly outrageous crimes, which are seen as
affecting the international community as a whole, such as genocide, slavery and torture.
To the Vienna Convention on the Law of Treaties
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdfhttp://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf -
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What is international human rights law?
International human rights law is part of international law. There is a close relationship
between international humanitarian law (IHL) and international human rights law.
International human rights law codifies human rights in various international treaties. The
right to life, the right to freedom of opinion and expression and the right to health and
housing are examples of human rights.
Limitations of human rights
In certain cases, such as in times of public emergency which threaten the life of the
nation, a state can derogate from (temporarily depart from) some of their obligations and
thus limit their human rights obligations. A derogation from a right means that the right is
not activated for a certain period of time. An example of a right that can be derogated
from under times of emergency is the right to peaceful assembly. The derogation must be
proportional and must not be introduced on a discriminatory basis.
Certain human rights can be limited but only if such limitations are provided for by law
and necessary for the protection of national security or public safety etc. Contrary to a
derogation the right is not taken away but continues to be valid, however, in a limited
manner. Examples of rights which can be limited are the right to freedom of expression
and the freedom of association.
Fundamental human rights, such as the right to life and the prohibition on torture and
slavery, can never be derogated from or limited.
Applicability
International human rights law is applicable to the territory of a state but also extends to
any territory which is under its effective jurisdiction, even if it is outside its borders.
The relation to international humanitarian law
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The International Court of Justice in its Advisory Opinion on the Wall from July 2004
considered the inter-relation between the two bodies of law international humanitarian
law and human rights law. It concluded that by dealing with a situation of armed conflict,
IHL is a specific law (lex specialis) compared to human rights law, which is applicable
both in times of armed conflict and in times of peace. It elaborated three possible inter-
relations between the two bodies of law:
situations in which only IHL applies;
situations in which only human rights law applies;
and situations where the legality of the actions needs to be examined under both
branches of law, for example during armed conflict.
Therefore, each action needs to be examined under IHL, human rights law or both
together depending on the circumstances.
Read more about the ICJ Advisory Opinion
What means and methods of warfare can one use?
International humanitarian law (IHL) limits the means and methods of warfare. IHL
covers the conduct of military operation by stating which weapons and military tactics
can be used in armed conflict. The only legitimate object during war is to weaken the
military forces of the enemy.
Weapons that cause superfluous injury or unnecessary
suffering
IHL prohibits weapons that cause superfluous injuries or unnecessary suffering. There are
several agreements within international law that prohibit or limit the use of certain
weapons for that reason.
The use, production, stock-piling, and transfer of anti-personal landmines are prohibited
according to the Ottawa Treaty of 1997.The 1980 Convention on Certain Conventional
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Weapons (CCW) includes five protocols covering landmines, incendiary weapons
(weapons that set fire to objects or cause burn injuries to persons), blinding laser
weapons, and explosive remnants (weapons and ammunition left behind after war),
undetectable fragments (weapons with the effect to injure by fragments that are non-
detectable by x-ray). These treaties are binding on states that have signed and ratified
them.
To ICRC and the Ottawa Treaty
To ICRC and the CCW
Biological and chemical weapons
The use of biological and chemical weapons is prohibited by the 1925 Geneva Protocol.
The Protocol is considered custumary international law and is therefore binding on all
states regardless of whether they signed it or not.
To ICRC and the 1925 Geneva Protocol
Read more about international customary law
In 1972 and 1993, conventions were adopted to prohibit the use, as well as the
production, transfer, and stock-piling of biological and chemical weapons. These treaties
are binding on states that have signed and ratified them.
To ICRC and the 1972 Biological Weapons Convention
To ICRC and the 1993 Chemical Weapons Convention
Below you will find information about the concept of military necessity, and what is
meant by the term collateral damage.
Military necessity
Military necessity is an exception to a prohibition in international humanitarian law
(IHL). The concept military necessity does, however, not give the armed forces the
freedom to do what they want.
http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d111fff4b9c85b0f41256585003caec3http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/626de49e3227d36dc125641e003a172ahttp://www.diakonia.se/sa/node.asp?node=993http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d5043567185f7e87c125641e00527e39http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/3f233cb0f0c580f8c125641f002d42a8http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d111fff4b9c85b0f41256585003caec3http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/626de49e3227d36dc125641e003a172ahttp://www.diakonia.se/sa/node.asp?node=993http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d5043567185f7e87c125641e00527e39http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/3f233cb0f0c580f8c125641f002d42a8 -
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According to the Harvard based "Program on Humanitarian Policy and Conflict
Research" (HPCR) there are five tests to verify the proper use of military necessity:
Firstly you have to ask if the measure will violate an absolute prohibition in IHL?
The right to take a measure under military necessity has to be stated in the law.
Secondly, are the military forces facing an actual state of necessity, a danger or a
need for supply?
Thirdly, is the measure taken a sufficient and effective response to the existing
threat?
Fourthly, is the measure in line with the principle of proportionality, i.e. does the
military advantage outweigh the risk of damage to the civilians or civilian
property? Lastly, is the decision taken by the correct authority and after careful review?
The tests are included in a policy brief on the Wall and international humanitarian law,
with a particular focus on the concept of military necessity.
To HPCR and the policy brief(272 kB)
Occupation or an occupied territory What is it?
A ...territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority has been
established and can be exercised. (Article 42 of the Hague Regulations.)
Read more about the Hague Regulations
Once a situation exist which amounts to an occupation, the law of occupation applies
motives for the presence of the foreign military forces are irrelevant. The question is a
matter of facts. It does not make a difference whether an occupation has received UN
Security Council approval or what its aim is for the applicability of the law of occupation.
Occupation does not give the occupying power sovereignty over the territory; occupation
is only temporary.
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The legality of any particular occupation is regulated by the UN Charter and the law
known as "jus ad bellum". It means the legality of the use of force itself and whether the
war is just or not. This is different than "jus in bellum"which relates to the legality of the
actions of the parties during the armed conflict.
To ICRC and Article 42
Summary of the main rules of occupation
Civilians shall be treated as protected persons (article 4 IVGC and article 47 IVGC).
They are entitled to respect for their person, their honour, their family rights, religious
convictions, and traditions. They shall be treated humanely and never be discriminated
against (article 27 IVGC).To ICRC and Article 4
To ICRC and Article 27
To ICRC and Article 47
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