HPT Session3PP

At the end of this session, you should: 

At the end of this session, you should have gained an understanding about the basics of international law; be able to explain the following concepts: convention, ratification, customary law, and reservations; be able to demonstrate how one of the main enforcement bodies of international law, the Security Council, works in complex emergencies; be able to describe the basis for the use of force in international law.

Slide2: 

The basics of treaty and customary law

States as the main actors in international law: 

States as the main actors in international law International law is that body of law, which regulates the legal relationships between states. It can regulate all types of dealings between states: trade, environmental issues, human rights, and so on. International organizations can sometimes be subjects under international law. It is drawn from a number of sources, according to Article 38 of the Statute of the International Court of Justice. The most important areas are international conventions and international custom.

International conventions: 

International conventions Examples: the United Nations Charter adopted in 1945, one of the most fundamental and important international instruments; the Covenant on Civil and Political Rights, adopted in 1966; the Covenant on Economic, Social and Cultural Rights, adopted in 1966. Treaties contain a number of articles specifying the scope of the treaty, mechanisms for solving disputes, and entry into force. Resolutions adopted by the General Assembly of the UN are not treaties; they are guiding tools for states and sort of recommendations on how to act in certain situations. In some examples, resolutions, or part of them, have formed international customary law (e.g. the Universal Declaration on Human Rights).

Ratification: 

Ratification A treaty does not enter into force between states until it has been first signed, and then ratified by the states concerned. Normally, a certain number of ratifications are required before the treaty will enter into force, that is, becomes legally binding on the international signatories. Sometimes when states do not sign the treaty first but become full parties immediately, the word adhere is used instead of ratify.

International custom: 

International custom A state does not have to sign onto it in order to be bound by it. Two elements for international custom to emerge: practice and opinio juris. Opinio juris: states are acting in a certain manner because it is their legal obligation to do so. Practice: a certain practice is taking place and the states engaged in that practice are doing so because they feel legally compelled to do so. Not all states have to be engaged in that practice to give a norm the force of customary law. If customary law exists, then it is binding upon states without them having to sign onto it.

Reservations: 

Reservations In Article 2(1(d)) of the Vienna Convention on the Law of Treaties: “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. 

Reservations (continued): 

Reservations (continued) Can be filed if not prohibited by the treaty, but must not be incompatible with the object and purpose of the treaty. Another state may object to the reservation, but “an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State”. Considered to be accepted if no objection is raised. 

Slide9: 

Most treaties allow for states to make reservations on specific articles. Important aspect as far as reservations to human rights provisions are concerned:define a strategy on how to make states withdraw their reservations. Reservations normally limit the right(s) enshrined in a particular provision. Sometimes states are not even aware of the impact that a certain reservation may have. Reservations (continued) 

Slide10: 

Argument to have reservations withdrawn: the Committee on the Rights of the Child time and time again has asked states to withdraw their reservations. Important to note: reservations can be used to indicate and understand what the actual problems in a given situation are. Reservations (continued)

The use of force in international law: 

The use of force in international law Use of force in international law is a debated issue. The options can be categorized as follows: Individual and collective self-defense; Intervention by the Security Council; and Humanitarian intervention.

Individual or collectiveself-defense: 

Individual or collective self-defense Based on Article 51 of the UN Charter. Requirement of “armed attack” to occur before a state is able to take action in self-defense. Use of “armed attack” – language in Article 51 excludes other forms of “force” (compare Article 2(4)).

Intervention by theSecurity Council: 

Intervention by the Security Council Decisions taken under Chapter VII of the UN Charter are legally binding on member states. Under Chapter VII of the UN Charter, intervention is lawful if it looks to take action to address threats to the peace, breaches of the peace, and acts of aggression. Article 41 refers to economic and diplomatic sanctions, Article 42 authorizes military actions. 

Interventions by theSecurity Council (continued): 

Interventions by the Security Council (continued) Article 2(7) of the Charter prohibits the UN from intervening in domestic affairs. However, action under Chapter VII is an exception. The Security Council has also taken part in the strengthening of a right to humanitarian assistance in international law.

Sanctions: 

Sanctions Article 41 of the United Nations Charter Chapter VII provides for economic and other kinds of non military measures for maintaining or restoring international peace and security (without using the term sanctions). Measures coercive and binding upon all member states of the United Nations. Economic sanctions can be followed by military sanctions as provided for in Article 42 of the Charter. Since the end of the Cold War, sanctions are more common. 

Sanctions (continued): 

Problem with sanctions: they have impacts on the civilian population and humanitarian aid. Sanctions are legal but have serious impact on enjoyment of human rights; children particularly vulnerable. Normally, when imposing sanctions on a certain country, Security Council also provides humanitarian exemptions. Sanctions (continued)

Humanitarian access vshumanitarian intervention: 

Humanitarian access vs humanitarian intervention Humanitarian intervention relies on the use of force, economic or military, by one or several states. Right to intervene for humanitarian purposes mainly argued before the end of the Cold War (a right, not a duty). Mostly, arguments based on Articles 2(4) and 51 of the UN Charter, saying that humanitarian intervention part of self-defense of the country concerned, and that either explicit approval needed by the authorities, or silent acquiescence.