what is public international law.doc

7/23/2019 What is Public International Law.doc

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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 indifferent 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. greements between states govern the mutual relations

between them and may be called conventions, statutes or protocols. greements 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

#nlike 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 $uestion, or not.

%hen 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 'ustice.

Two criteria

There are two criteria for identifying a rule as part of international customary law.


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Opinio Juris pino *uris is the e+pressed opinion of states that their actions have a

legal basis. It is thus states themselves (sub'ective criteria) that recognise certain legal

practices or rules as being legally binding.

Usus ustomary law is confirmed through the actions of states (ob'ective criteria) inaccordance with what is e+pected of them by international 'urisprudence. -tates 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. %hen 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.

/+amples of international customary law are the right to life, the prohibition of torture,

and that civilians should not be the ob'ect of an attack.

Jus cogens

-ome rules of international law are part of the Latin concept of 0'us cogens0, also referred

to as peremptory norms, and meaning 0the compelling law0. *us cogens status is the

highest status that can be attained by any principles or norms in international law.

*us 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

e+ceptions can be made (article 12 of the 3ienna onvention on the Law of Treaties). ll

states are therefore obliged to follow 'us cogens rules at all times. rimes which have

attained the status of 'us cogens are particularly outrageous crimes, which are seen as

affecting the international community as a whole, such as genocide, slavery and torture.

To the 3ienna onvention on the Law of Treaties

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.


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International human rights law codifies human rights in various international treaties. The

right to life, the right to freedom of opinion and e+pression and the right to health and

housing are e+amples 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. derogation from a right means that the right is

not activated for a certain period of time. n e+ample 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.

ertain 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. ontrary to a

derogation the right is not taken away but continues to be valid, however, in a limited

manner. /+amples of rights which can be limited are the right to freedom of e+pression

and the freedom of association.

4undamental 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 e+tends to

any territory which is under its effective 'urisdiction, even if it is outside its borders.

The relation to international humanitarian law

The International ourt of *ustice in its dvisory pinion on the %all from *uly 5667

considered the interrelation between the two bodies of law 8 international humanitarianlaw and human rights law. It concluded that by dealing with a situation of armed conflict,

IHL is a specific law (le+ 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 law9


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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 e+amined under both

branches of law, for e+ample during armed conflict.

Therefore, each action needs to be e+amined under IHL, human rights law or both

together depending on the circumstances.

;ead more about the I* dvisory pinion

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 ob'ect 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 in'uries or unnecessary suffering. There are

several agreements within international law that prohibit or limit the use of certainweapons for that reason.

The use, production, stockpiling, and transfer of antipersonal landmines are prohibited

according to the ttawa Treaty of .The


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To I; and the ttawa Treaty

To I; and the %

iological and chemical weapons

The use of biological and chemical weapons is prohibited by the


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Thirdly, is the measure taken a sufficient and effective response to the e+isting

threatD

4ourthly, 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

propertyD

Lastly, is the decision taken by the correct authority and after careful reviewD

The tests are included in a policy brief on the %all and international humanitarian law,

with a particular focus on the concept of military necessity.

To HA; and the policy brief (5>5 kB)

Occupation or an occupied territory " What is it? E...territory is considered occupied when it is actually placed under the authority of the

hostile army. The occupation e+tends only to the territory where such authority has been

established and can be e+ercised.F (rticle 75 of the Hague ;egulations.)

;ead more about the Hague ;egulations

nce a situation e+ist which amounts to an occupation, the law of occupation applies 8

motives for the presence of the foreign military forces are irrelevant. The $uestion is a

matter of facts. It does not make a difference whether an occupation has received #G

-ecurity ouncil approval or what its aim is for the applicability of the law of occupation.

ccupation does not give the occupying power sovereignty over the territory: occupation

is only temporary.

The legality of any particular occupation is regulated by the #G harter and the law

known as 0'us ad bellum0. It means the legality of the use of force itself and whether the

war is 'ust 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 I; and rticle 75

#ummary of the main rules of occupation


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ivilians shall be treated as protected persons (article 7 I3@ and article 7> I3@).

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 discriminatedagainst (article 5> I3@).

To I; and rticle 7

To I; and rticle 5>To I; and rticle 7>

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