International Law - 1

Table of Contents
1. International Law
2. What are the components of International Law?
3. International Telecommunication Union
4. Universal Postal Union
5. United Nations - origins and purposes
6. International Court of Justice (ICJ)
7. The Secretariat
8. Permanent Court of Arbitration (PCA)
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International Law

International law is commonly divided into two broad branches: public international law and private international law. Each branch addresses different classes of legal relationships and problems between persons, entities and states across national borders.

• Private international law: Also called the conflict of laws, this branch deals with questions about which domestic law or forum should apply when a legal dispute has a cross-border element. It is normally applied by domestic courts to determine jurisdiction, choice of law and recognition/enforcement of foreign judgments.
• Public international law: Concerned with the legal rules, principles and institutions that govern the conduct of sovereign states, international organisations and, increasingly, individuals and non-state actors in their inter-state relations.

History of Public International Law

Although the modern system of international law is usually dated from the early modern period, the conceptual roots go back much further. Several historical developments are important for understanding the evolution of rules between political communities.

• Classical traditions: Practices among Greek city-states and Roman legal distinctions are foundational. The Roman law notions of ius civile (law applicable to citizens) and ius gentium (law of nations or rules regulating relations between Romans and non-Romans) influenced later doctrines about how distinct polities interact.
• Hugo Grotius - De Jure Belli ac Pacis (1625): Grotius' treatise marks a turning point in the modern theory of international law. It systematised the law of war and peace and argued for the existence of legal norms governing state conduct that are not purely matters of power or convenience.
• Westphalian sovereignty (1648): The Peace of Westphalia (1648) reinforced the concept of the sovereign nation-state and the need for rules to govern relations among such sovereign entities. This helped shape the later development of treaties, diplomacy and customary law.
• Two classical branches: Historically the field combined the law of nations (jus gentium) and the rules governing agreements among states (jus inter gentes), which reflect different methods of legal formation (custom vs treaty).

What are the components of International Law?

The principal primary sources of public international law are:

• Treaties (conventions) - written agreements between states or international organisations, binding on the parties by consent;
• Customary international law - general state practice accepted as law (opinio juris);
• General principles of law - principles common to the major domestic legal systems (for example: good faith, equity, recognition of legal personality, legality of obligations).

There are also subsidiary (secondary) sources which help interpret or establish primary rules:

• Judicial decisions and the teachings of highly qualified publicists - decisions of international tribunals and the writings of eminent scholars are used as subsidiary means to determine or clarify the law.

Treaties

Treaties are formal, written instruments in which states or international organisations consent to be bound. They are central to modern international law.

• Bilateral treaty: A treaty concluded between two states. Common examples are double taxation agreements and extradition treaties.
• Multilateral treaty: A treaty concluded among several states, for example the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the 1951 Refugee Convention, the Convention on Contracts for the International Sale of Goods (CISG) and the Agreement establishing the World Trade Organization (WTO).
• Vienna Convention on the Law of Treaties (VCLT), 1969: The VCLT provides the general rules for the conclusion, interpretation, application, amendment and termination of treaties. It entered into force on 27 January 1980. The Convention codifies key principles such as pacta sunt servanda (agreements must be kept) and sets out interpretive rules (see Articles 31-33). The VCLT had been ratified by 110 states as of October 2009.
• Consent and reservations: A state is bound by a treaty only if it has consented to be bound; reservations allow states to modify the legal effect of certain provisions vis-à-vis the reserving state, subject to limits in the treaty and international law.

International Telecommunication Union

As international intergovernmental cooperation expanded in the nineteenth century, specialised organisations were established to regulate technical and practical fields.

• The International Telecommunication Union (ITU) is the oldest organisation in the UN family still in existence. It was founded as the International Telegraph Union in Paris on 17 May 1865.
• Today the ITU is the leading UN specialised agency for information and communication technology issues and acts as a global forum for governments and the private sector to develop networks and services.

Universal Postal Union

Before the establishment of an international postal organisation, each state had to negotiate separate postal treaties with every other state to permit international mail.

• The Universal Postal Union (UPU) was created in 1874 as the General Postal Union by the Treaty of Bern signed on 9 October 1874.
• The UPU's reforms required postal authorities to treat foreign mail on an equal basis with domestic mail and allowed member states' postage stamps to be accepted for international routes, eliminating the need to affix stamps from every transit country.
• The organisation was renamed the Universal Postal Union in 1878 and later became a specialised agency of the United Nations. The UPU is headquartered in Bern, Switzerland.

United Nations - origins and purposes

The name "United Nations" was used during the Second World War, notably in the "Declaration by United Nations" of 1 January 1942, proposed by United States President Franklin D. Roosevelt, when 26 allied governments pledged to continue the war against the Axis Powers.

• The United Nations is an association of states formed to maintain international peace and security and to promote cooperation in solving international political, economic, social, cultural and humanitarian problems. The UN is an institutional forum for states to coordinate policies and create binding obligations by treaty.
• The UN Charter, the constituting instrument of the United Nations, was adopted at the United Nations Conference on International Organization in San Francisco, which met from 25 April 1945 to 26 June 1945. Fifty states were original signatories; Poland signed shortly thereafter, becoming one of the original 51 Member States.
• The United Nations officially came into existence on 24 October 1945, following the deposit of the required number of ratifications of the Charter. United Nations Day is observed on 24 October each year.
• New member states are admitted to the UN by decision of the General Assembly upon the recommendation of the Security Council. The UN has admitted states progressively over time; for example, Tuvalu was admitted in September 2000 and East Timor (Timor-Leste) in September 2002.
• Observers and languages: The Holy See (Vatican City) is a permanent observer. The six official languages of the UN are Arabic, Chinese, English, French, Russian and Spanish. The UN Headquarters is in New York.
• The UN and its then Secretary-General Kofi Annan received the Nobel Peace Prize in 2001 for their work. Kofi Annan (from Ghana) was re-elected to a second term as Secretary-General. Ban Ki-moon (of South Korea) took office on 1 January 2007; his first term was to expire on 31 December 2011.

Principal organs of the United Nations

The UN Charter establishes six principal organs: the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the Secretariat, the International Court of Justice and the Trusteeship Council. Each organ has distinct functions under the Charter.

• The Charter was shaped by proposals worked out by representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks (August-September 1944) and finalised at the San Francisco Conference (April-June 1945).
• The UN has admitted many member states since 1945; the composition has changed over time with the admission of newly independent states, and the representation of China changed in 1971 when the People's Republic of China was recognised as the representative of all of China in the UN.

General Assembly

The General Assembly consists of representatives of all Member States; each state has one vote. A state may send up to five representatives. The General Assembly meets in regular session at least once a year and elects its own President and Vice-President. Most organs and specialised agencies report to the General Assembly, which discusses and makes recommendations on any matter within the scope of the Charter, except for matters being considered by the Security Council.

Security Council

The Security Council is the UN organ primarily responsible for maintaining international peace and security.

• It has 15 members in total. Of these, 5 are permanent members with veto power: China, France, Russia, the United Kingdom and the United States. The remaining 10 non-permanent members are elected for two-year terms by the General Assembly by a two-thirds majority and are not eligible for immediate re-election.
• The presidency of the Security Council rotates monthly among the member states in English alphabetical order.
• The Security Council may consider any dispute or situation which might lead to international friction and may recommend procedures or terms of settlement, or, under Chapter VII of the Charter, take measures to maintain or restore international peace and security, including economic sanctions and the use of force.
• Examples of country membership at particular times are noted in historical records; for instance, certain non-permanent members listed in contemporary accounts served until specific dates in 2010 and 2011.

Economic and Social Council (ECOSOC)

ECOSOC has 54 members. It is the central forum for discussing international economic, social, cultural, educational, health and related matters and for formulating policy recommendations addressed to Member States and the UN system. Members are elected by the General Assembly for three-year terms; one-third of the members are elected each year.

ECOSOC has five regional economic commissions: Economic Commission for Europe (ECE, Geneva), Economic and Social Commission for Asia and the Pacific (ESCAP, Bangkok), Economic Commission for Latin America and the Caribbean (ECLAC, Santiago), Economic Commission for Africa (ECA, Addis Ababa) and Economic and Social Commission for Western Asia (ESCWA, Amman).

Trusteeship Council

The Trusteeship Council was established to supervise trust territories and ensure that their inhabitants were prepared for self-government and independence. The Council comprised the five permanent members of the Security Council together with the administering powers of trust territories. All original trust territories have attained independence or joined other states, and the Trusteeship Council is presently inactive.

International Court of Justice (ICJ)

The International Court of Justice (ICJ), often called the World Court, is the principal judicial organ of the United Nations. It is based in the Peace Palace at The Hague, Netherlands. The Court's statute is an integral part of the UN Charter.

• Composition: The ICJ is composed of 15 judges elected to serve nine-year terms. Judges may be re-elected.
• Election procedure: Judges are elected by the UN General Assembly and the Security Council from lists of persons nominated by national groups in the Permanent Court of Arbitration.
• Rotation of seats: Elections occur every three years so that one-third of the bench is renewed to ensure continuity.
• President: The ICJ elects a President and Vice-President from among its members for three-year terms. At the time of this text, Hisashi Owada of Japan served as President of the Court.
• Indian judges: Three Indians have served as judges of the ICJ: Benegal Rama Rau (1952-1953), Nagendra Singh (1973-1988; Vice-President 1976-1979 and President 1985-1988), and Raghunandan Pathak (1989-1991).

Status of precedents

The ICJ is not formally bound by the doctrine of stare decisis (precedent) as applied in many domestic systems; it is not strictly bound to follow its prior decisions. Nevertheless, the Court frequently relies on its prior jurisprudence and treats earlier decisions as highly persuasive in the interest of consistency and legal certainty.

Jurisdiction of the Court

The ICJ has two principal functions:

• Contentious jurisdiction: It decides legal disputes submitted to it by states in accordance with international law.
• Advisory jurisdiction: It may give advisory opinions on legal questions referred to it by duly authorised UN organs and specialised agencies.

All members of the United Nations are ipso facto parties to the Statute of the Court. Decisions on cases are generally taken by majority vote. The Court's official languages are French and English.

The Secretariat

• The Secretariat is the UN's executive arm, responsible for administrative and substantive work under the direction of the Secretary-General. The Secretariat comprises an international staff appointed under regulations established by the General Assembly.
• Secretary-General: The Secretary-General is the chief administrative officer of the organisation and is appointed by the General Assembly on the recommendation of the Security Council for a five-year term, renewable.
• Deputy Secretary-General: At the time recorded here, Dr Asha-Rose Migiro of Tanzania assumed office as Deputy Secretary-General on 1 February 2007. The first person to hold the post of Secretary-General was Trygve Lie of Norway. U Thant (from Burma/Myanmar) served as the third Secretary-General and was the first Asian to hold that office in 1961.

Permanent Court of Arbitration (PCA)

The Permanent Court of Arbitration (PCA) was established by the Convention for the Pacific Settlement of International Disputes at The Hague in 1899 during the first Hague Peace Conference (initiated by Czar Nicholas II of Russia). The 1899 Convention was revised at the second Hague Peace Conference in 1907.

• The PCA provides a flexible institutional framework and administrative support for arbitration and other forms of peaceful dispute settlement involving states, state entities, intergovernmental organisations and private parties.
• About 110 countries are members of one or both of the founding conventions.
• The Secretary-General of the PCA is Christiaan M.J. Kröner (as referenced in the source material).

Special tribunals and ad hoc courts

The United Nations has established specialised criminal tribunals to address serious violations of international humanitarian law and to prosecute individuals alleged to be responsible for war crimes, genocide and crimes against humanity. These tribunals have both retributive and deterrent functions and contributed to the development of international criminal law.

• The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993 (pursuant to Security Council resolution) to prosecute serious crimes committed during the wars in the former Yugoslavia. It is located in The Hague.

International Criminal Tribunal for Rwanda (ICTR)

The ICTR was created to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in Rwanda between 1 January and 31 December 1994. The Tribunal was located in Arusha, Tanzania. Its first trial, that of Jean-Paul Akayesu, commenced in 1997; Jean Kambanda, the interim Prime Minister, pleaded guilty.

International Criminal Court (ICC)

The establishment of ad hoc tribunals contributed momentum toward a permanent international criminal court. The International Criminal Court (ICC) was established by the Rome Statute and came into being in 2003.

• The ICC prosecutes individuals for the core crimes of genocide, crimes against humanity, and war crimes, and the crime of aggression (subject to conditions on jurisdiction).
• The Court's first trial, of Congolese militia leader Thomas Lubanga, commenced on 26 January 2009. Subsequent trials included those of Germain Katanga and Mathieu Ngudjolo Chui.
• As of October 2009, approximately 110 states had become parties to the Rome Statute, including most of Europe and South America and many African states. Some notable states, including the United States, Israel and Sudan, had indicated they did not intend to become state parties to the Rome Statute.
• The President of the Court elected in March 2009 was Sang-Hyun Song.

Special Court for Sierra Leone (SCSL)

The Special Court for Sierra Leone was established in 2002 following the country's brutal civil war (1991-2002), during which various parties committed serious violations of international humanitarian and criminal law. The Court was created pursuant to an agreement between the United Nations and the Government of Sierra Leone and is unique in combining international and domestic law, sitting within the territory where many of the crimes occurred. It aimed to provide accountability in a way that is faster and less costly than some previous ad hoc tribunals.

Special Tribunal for Lebanon

• The Special Tribunal for Lebanon was established under an agreement between the United Nations and Lebanon pursuant to a Security Council resolution adopted in March 2006. Its mandate was to prosecute those responsible under Lebanese law for crimes relating to the assassination of Rafik Hariri on 14 February 2005.
• The Tribunal was notable for trying a terrorist act against a specific person under an internationalised procedural framework. Antonio Cassese, an eminent international criminal law scholar from Italy, was appointed President of the Tribunal on 24 March 2009.
• Special tribunals have also been constituted for other situations, such as Cambodia (the Extraordinary Chambers in the Courts of Cambodia) and East Timor.

Famous international jurists and selected writings

• Vattel - Le Droit des Gens ou Principes de la Loi Naturelle (The Law of Nations or Principles of Natural Law)
• Samuel von Pufendorf - The Two Books of the Duty of Man and Citizen According to Natural Law
• B. S. Chimni - International Refugee Law: A Reader
• B. S. Chimni - International Law and World Order: A Critique of Contemporary Approaches
• B. S. Chimni - International Commodity Agreements: A Legal Study
• R. P. Anand - Legal Regime of the Sea-Bed and the Developing Countries
• R. P. Anand - New States and International Law
• R. P. Anand - Studies in International Adjudication
• R. P. Anand - International Law and the Developing Countries
• Manoj Kumar Sinha - International Criminal Law and Human Rights
• Bruno Simma - Charter of the United Nations (commentary)
• Ian Brownlie - International Law and the Use of Force by States

Free trade agreements and regional trade organisations

International trade law and institutional frameworks facilitate commerce between states. The World Trade Organization (WTO) (established in 1995) is the principal global organisation governing international trade in goods and services, with rules on tariffs, non-tariff barriers and dispute settlement. Regional trade organisations and free trade agreements supplement the multilateral system.

• Mercosur - Established among Argentina, Brazil, Paraguay and Uruguay by the Treaty of Asunción (1991). Other states have associate membership.
• ASEAN and AFTA - The ASEAN Free Trade Area (AFTA) was begun with six original ASEAN members. Over time ASEAN expanded; several states joined in the 1990s and AFTA now covers ten ASEAN members.
• NAFTA - North American Free Trade Agreement (regional agreement among Canada, the United States and Mexico).
• SAARC - South Asian Association for Regional Cooperation (regional cooperation framework among South Asian states).
• States may conclude bilateral or regional free trade agreements provided they respect their multilateral obligations under WTO law. Examples from the source material include India's Free Trade Agreement with ASEAN and a Comprehensive Economic Cooperation Agreement (CECA) with Singapore (covering goods, services and investment mobility).
• Negotiations for further agreements (for example, a potential agreement with the European Union) have been mentioned in historical accounts of particular periods.

Concluding note

For legal reasoning involving international law, the key steps are:

• Identify the nature of the actor (state, international organisation, individual) and the applicable legal source (treaty, custom, general principle).
• Determine whether consent exists (for treaties) or whether state practice and opinio juris (for custom) are established.
• Apply rules of interpretation (for treaties, the VCLT rules are central) and consider relevant judicial decisions and scholarly writings as persuasive guidance.
• Examine jurisdictional bases and remedies - whether an international tribunal has competence, whether a case is admissible, and what forms of relief or accountability are available.

This chapter has preserved principal facts, names and dates used in standard accounts of public international law and its institutions, and elaborated the fundamentals required for sound legal reasoning on the topic.