Transcript Environmental Justice - Legal Response Initiative

Introduction to public international law
International law
State A
International law: treaties, customary law
European law: ECT, directives,
regulations
National legislation
Bylaws, regulations, ordinances
State B
Art.38 ICJ Statute
“1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to
it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by civilized
nations;
d. … judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.”
Public international law
• System of rules and principles that govern the
relationship between States and other subjects
of international law (e.g. the United Nations or
the European Community)
• Primary sources: treaties and customary law
• Subsidiary means
• Soft law: contributes to the formation of
customary law as well as provide evidence of
opinio juris
Treaties
• Agreements between States (and other entities under international
law) bind the participating Parties
• Conventions, pacts, protocols, covenants etc
• Trade, diplomacy, postal services, transboundary emissions, the use
of outer space, war, global environment, control and jurisdiction over
territory, human rights, international crimes etc
• No hierarchy between different international treaties – except the
Charter of the United Nations (Constitution of the international
community?)
• Treaty interpretation through different means including the intention
of the parties at the time the treaty was concluded and the
subsequent practice of the parties in its application
• Conflicts may be addressed in the treaties or subject to Vienna
Convention rules
Customary law
• Customary international law is derived from the
consistent practice of States accompanied by
opinio juris - the conviction of States that this
practice is required by a legal obligation.
• In addition to state behaviour, judgments of
international courts and academic research are
traditionally used as persuasive sources for
evidencing customary international law.
Treaty & customary law
• Customary and treaty law are complementary
• Treaties regularly contain codifications of
customary law while subsequent State practice
can develop the provision of a treaty further
• Treaties and the practice of States may also
lead to the creation of new rules of customary
law
• What constitutes applicable international law is
however often a question of interpretation…
Law & practice
• Art.94 para.1 UNCLOS (Duties of the flag State)
“Every State shall effectively exercise its jurisdiction and
control in administrative, technical and social matters
over ships flying its flag.”
• Art.27 para.3 UN Charter: “Decisions of the Security
Council on all other matters shall be made by an
affirmative vote of nine members including the
concurring votes of the permanent members;…”.
• Prohibition of force (Art.2 para.4 UN Charter) unless
- UN Chapter VII enforcement measures,
- Self defence or
- Humanitarian intervention? (US doctrine)
Compliance
• Treaty monitoring and compliance
• Security Council to protect peace and
security
• Jurisdiction of international courts and
tribunal
• Peer pressure, certainty in international
relations and reputation
• Investment and donor support
Areas of the law
Branches or Fields of Public International Law
International Human
Rights Law (IHRL)
International
Humanitarian Law (IHL)
(Law of Armed Conflict)
International Law of the Sea
International
Criminal Law
International Trade Law
International Law relating to
disarmament
International
Environmental Law
International
Economic/Monetary Law
International
Maritime Law
International Labour
Law
International Law relating to
Space
International Refugee Law
International Law of Public
International Organizations/
Institutions
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International & domestic law
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Monism – Dualism – Nihilism
International law > domestic law
Formation and interpretation of domestic law
Use of international law by courts
Human rights instruments
application pre ratification
avenues for redress
• Creation of processes and institutions: Institute of
Biodiversity Conservation and Research to implement
Ethiopia’s obligation to the Convention of Biological
Diversity; designation of Wetlands etc.
Domestic relevance
• Direct impact on people’s lives (Security Council
resolutions, CDM)
• Relevance for the development of domestic
legislation, jurisprudence, admin procedures
• Reference for sustainable development and
good governance
• Campaigning tool
• Involvement of civil society in development,
implementation and compliance monitoring
compliance