Public International Law Seminars for PIL Master Students Teachers

JUS5540 - Public International Law
Seminars for PIL Master Students
Teachers:
Matthew Saul (MWS) and Gentian Zyberi (GZ)
Selected topics
Five seminars will be organized during this course in order to go into depth in some selected
topics of international law. The material selected for the seminars combine relevant
international law instruments, case law and scholarly writings. Through these seminars the
students will get a better understanding of the theory and practice of international law. The
topics selected for further discussion in the seminars are the following:

The Sources of International Law (Matthew Saul)

Personality and Recognition in International Law (Matthew Saul)

The Relationship between International Law and National Law (Gentian Zyberi)

Dispute Resolution: The Legitimacy of International Courts (Matthew Saul)

Diplomatic and Consular Protection (Gentian Zyberi)
Practical information
These seminars will take place in the Asbjørn Eide Seminar Room, at the Norwegian
Center for Human Rights, Cort Adelers gate 30. The provisional schedule is as follows:
September 10th, 15.30-17.30 The Sources of International Law, MWS;
September 24nd, 15.00-17.00 Personality and Recognition in International Law, MWS;
October 8th, 15.00-17.00 The Relationship between International Law and National Law,
GZ;
October 22nd, 15.00-17.00 Dispute Resolution: The Legitimacy of International Courts,
MWS;
November 5th, 15.00-17.00 Diplomatic and Consular Protection, GZ.
Although strictly speaking not compulsory, students are strongly encouraged to attend these
seminars. We expect all participants to participate actively in these seminars by making short
presentations, participating in group work, and by asking and answering questions.
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Public International law
Matthew Saul
The Sources of International Law
Questions
1. Read the following statement:
‘... The orthodox view has been that the only legitimate source for an international
right or obligation is the express or tacit consent of each State to which it applies.
This . . . doctrine finds expression in the sources of international law enumerated in
Article 38(1) of the Statute of the International Court of Justice . . . .’ (Kirgis)
Do you agree with this statement? To what extent has this ‘orthodox view’ been subject to
challenge?
2. Is jus cogens a form of customary law, a sort of natural law, or another source of
international law altogether?
3. By 1986, States A, B, C, D, E, F and G (who for this problem constituted at the time most
of the States in the world) each claimed exclusive fishery zones extending to 12 miles from
their coastlines. In 1990, State A unilaterally declared that its fishery zone would henceforth
be extended to 200 miles. States B and C, whose fishing vessels had regularly fished just
outside A’s 12 mile limit, protested to A that its claim was in breach of international law.
Although the numbers of vessels from B and C fishing in A’s waters began to diminish, some
from each State continued to fish there. In 1992, State C raised the matter in the United
Nations Security Council but a motion condemning A’s action was vetoed by State X a
permanent member of the Security Council.
At various times after 1994, States D, E and F extended their exclusive fishery zones to 200
miles. Neither State B nor State C had any fishing vessels operating in these waters and
neither made representations to States D, E and F. In 2000, State G sent a fishing expedition,
and an accompanying naval protection fleet, to A’s waters for the first time. G’s vessels
proceeded to fish within the 200 mile zone but not within 12 miles of State A’s coastline.
State A protested to State G about the fishing which it described as “illegal under general
international law”.
In 1999, the United Nations General Assembly passed a (fictitious) Resolution on Protection
of the Economic Resources of the Sea, which, inter alia, proclaimed that the coastal State
possessed exclusive rights over the economic resources of the sea up to 200 miles from its
coast. 90% of the members of the Assembly voted in favour of the resolution but States C and
G voted against with State B and another couple of States abstaining. A (fictitious)
multilateral treaty, containing the same provision came into force in 2005. State C and State
G have not signed or ratified the treaty, State B has signed it but has not ratified it. All other
States mentioned above have signed and ratified it.
Taking into account the sources of international law, and ignoring any substantive rights or
obligations under the law of the sea not specified in problem, do States B, C and G have a
right, in 2007, for their vessels to fish between 12 and 200 miles from State A’s coast? If not,
when did they lose the right?
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Reading
H. Thirlway, ‘The Sources of International Law’, Ch. 4 in M. Evans (ed.), International Law
(3rd edn, OUP, Oxford, 2010)
A. Boyle, ‘Soft Law in International Law-Making’ in M. Evans (ed.), International Law (3rd
edn, OUP, Oxford, 2010)
D. Shelton, ‘International Law and Relative Normativity’, Ch. 6 in M. Evans (ed.),
International Law (3rd edn, OUP, Oxford, 2010)
Relevant case law
 Case of the S.S. Lotus (France v. Turkey), PCIJ Rep., Ser. A, No. 10 (1927), pp. 21,
24-30
 Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 66, paras. 64-87
 Asylum (Colombia v. Peru) [1950] ICJ Rep. 266, pp. 276-78
 Anglo-Norwegian Fisheries (United Kingdom v. Norway), ICJ Rep. 116, p. 131
 North Sea Continental Shelf (F.R. Germany v. Denmark; F.R. Germany v.
Netherlands), [1969] ICJ Rep. 3, paras. 60-82
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States), Merits, [1986] ICJ Rep. 14, paras. 175-190
 Arrest Warrant of 11 April 2000 (D.R. Congo v. Belgium), [2002] ICJ Rep. 3, para. 57
– 58.
 Case concerning the Barcelona Traction Heat, Light and Power Company (Belgium
v. Spain), [1970] ICJ Rep. 3, para. 33
 Case concerning East Timor (Portugal v. Australia), [1995] ICJ Rep. 90, para 29
 Armed Activities in the Territory of the Congo (New Application: 2002) (D.R. Congo
v. Rwanda), [2006] ICJ Rep. 3, paras 64-69
 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal),
[2012] ICJ (esp. para. 90)
Additional/recommended reading
M. Saul, ‘Identifying Jus Cogens Norms: The Interaction of Scholars and International
Judges’, (2014) Asian Journal of International Law
P. Weil, ‘Towards Relative Normativity in International Law’, (1983) 77 American Journal
of International Law 413
J. Beckett, ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’, (2001)
12 European Journal of International Law 627
R. Higgins, Problems and Process: International Law and How We Use It (OUP, Oxford,
1994), Ch. 2
F.L. Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 American Journal of International Law
146
M. Akehurst, ‘Custom as a Source of International Law’ (1974-5) British Year Book of
International Law 1
3
J. Kammerhofer, ‘Uncertaintites in the Formal Sources of International Law: Customary
International Law and Some of Its Problems’, (2004) 15 European Journal of International
Law 523
S. Besson, ‘Theorizing the Sources of International Law’, Ch. 7 in S. Besson and J. Tasioulas
(eds.), The Philosophy of International Law (OUP, Oxford, 2010)
D. Lefkowitz, ‘The Sources of International Law: Some Philosophical Reflections’, Ch. 8 in
S. Besson and J. Tasioulas (eds.), The Philosophy of International Law (OUP, Oxford, 2010)
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Public International Law Seminar
Matthew Saul
Personality and Recognition in International Law
Questions
1. What is the significance of the Reparation for Injuries Case, in terms of how we think
about personality in international law?
2. Do we need a new vocabulary for identifying the various actors that can bear rights and
duties in international law?
3. The state of Tunstall was recognised by the United Kingdom in 1964, when it became
independent, having formerly been a colony of Shields. Within Tunstall there are two ethnic
groups, the Tunstallans and the Betyans. Before colonisation, Tunst was an independent state
under a hereditary ruler. It is situated in the North of Tunstall. The Betyans territory, lying in
the South of Tunstall, was not previously a recognised state, and many states in the region
have substantial Betyan populations, as this group was historically nomadic.
In 2009, the Betyans staged a rebellion in Tunstall. The leaders of the rebellion issued a
proclamation stating that they had seceded from Tunstall to form the state of Bety. At that
time, the rebels were still fighting and the border declared by the Betyans was not yet secure.
Journalists reporting from Betyan-held towns describe a state of anarchy, where the civilian
population has no protection from crime and disorder. The Betyans have now established
diplomatic relations with several EU member states, despite protests from Tunstall.
Should the UK recognise Bety?
Reading
M. Craven, ‘Statehood, Self-Determination, and Recognition’, Ch. 8 in M. Evans (ed.),
International Law (3rd edn, OUP, Oxford, 2010)
R. McCorquodale, ‘The Individual in the International Legal System’, Ch. 10 in M. Evans
(ed.), International Law (3rd edn, OUP, Oxford, 2010)
Relevant cases
Tinoco Arbitration (Great Britain and Costa Rica) (1923) 1 RIAA 369
Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C.
J. Reports 1949, p. 174 (available at http://www.icj-cij.org/docket/files/4/1835.pdf).
Badinter Commission’s Opinion Nos. 1, 8 & 10, (1991-2) Harris, pp. 113-118, & 136 and
137:
Reference re Secession of Quebec, Canadian Supreme Court (1998) 37 ILM 1340 (esp. para
138)
Accordance with international law of the unilateral declaration of independence in respect of
Kosovo (Request for Advisory Opinion), Advisory Opinion of 22 July 2010, paras. 78-84
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(read also the Declaration of Judge Simma and the Dissenting Opinion of Vice-President
Tomka)
Additional/recommended reading
I. Brownlie, ‘Recognition in Theory and Practice’ (1982) 53 British Year Book of
International Law 197
J Vidmar, 'Explaining the Legal Effects of Recognition' (2012) International and
Comparative Law Quarterly 361
J. Vidmar, ‘The Kosovo Advisory Opinion Scrutinized’, (2011) 24(2) Leiden Journal of
International Law 355
S.D. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, in
G. Fox and B. Roth (eds.), Democratic Governance and International Law (CUP,
Cambridge, 2000) 123
R. Higgins, ‘Conceptual Thinking about the Individual in International Law’ (1978) 24 New
York Law School Law Review 11
R Higgins, Problems and Process (Clarendon Press, 1994) 48 – 55
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Public International Law Seminar
Gentian Zyberi
The Relationship between International Law and National Law
International law does not prescribe how it should be applied or enforced at the national level.
In that sense, it can be said that international law is concerned more with the result rather than
the process. National constitutions and basic laws have adopted different ways to give effect
to international treaties and to customary international law. Problems have arisen in practice
as domestic courts have struggled to resolve uncertainties and avoid conflicts between
international and domestic legal norms.
Questions
What are monist and dualist legal systems?
How are international legal obligations implemented into domestic legal systems? Can you
identify any patterns of such implementation? Use your own country or other jurisdictions
you know of as an example.
Are provisions of international treaties directly applicable in the domestic legal systems?
What about norms of customary international law?
Can an international treaty prevail over a national constitutional norm?
Are there any questions of international law which national courts should decline to answer?
Reading
Evans (ed), International Law, pp. 412-442.
Vladlen S. Vereshchetin, New Constitutions and the Old Problem of the Relationship
between International Law and National Law, 7 EJIL (1996), 29-41.
Visar Morina, Fisnik Korenica and Dren Doli, The relationship between international law and
national law in the case of Kosovo: A constitutional perspective, 9(1) International Journal of
Constitutional Law (2011), 274-296.
Legal instruments
Vienna Convention on the Law of Treaties (1969);
National Constitutions (Comparative Constitutions Project).
Relevant case law
ICJ
LaGrand (Germany v. United States) ICJ Rep 2001 (paras. 125-127);
Avena and Other Mexican Nationals (Mexico v. United States) ICJ Rep 2004 (paras. 111115).
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ECtHR
Broniowski v. Poland, 22 June 2004;
Greens and M.T. v. the United Kingdom, 23 November 2010.
US Supreme Court
Murray v The Charming Betsy 6 US 64, 118 (1804);
Medellín v. Texas, 552 U. S. (2008);
Kiobel et al v. Royal Dutch Petroleum, 569 U. S. (2013)
Additional/recommended reading
Janne E. Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between
National and International Law (Oxford University Press, 2007).
Yuval Shany, Regulating Jurisdictional Relations Between National and International Courts
(Oxford University Press, 2009).
Dinah Shelton, International Law and Domestic Legal Systems: Incorporation,
Transformation, and Persuasion (Oxford University Press, 2011).
Leiden Journal of International Law, INTERNATIONAL LAW AND PRACTICE:
Symposium on Domestic Courts as Agents of Development of International Law, Volume 26
- Issue 03 - September 2013.
Pierre-Marie Dupuy, The Unity of Application of International Law at the Global Level and
the Responsibility of Judges, Vol.1 EJLS No. 2, pp. 1-23.
ILA Study Group, Principles on the engagement of domestic courts with international law,
preliminary report.
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Public International Law Seminar
Matthew Saul
Dispute Resolution: The Legitimacy of International Courts
Questions
How should we define an international court?
What are the functions of international courts?
What is the difference between normative and social legitimacy?
Why and how should we assess the legitimacy of international courts?
Case studies
How do these cases and the subsequent practice of the target states relate to the legitimacy of
the relevant courts?
The ICJ:
Legal Consequences of the Construction of Wall in the Occupied Palestinians Territnory,
Opinion of 9 July 2004
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) of 31st March 2014
The ECtHR:
Sejdić and Finci v. Bosnia and Herzegovina, ECtHR, App. Nos. 27996/06 & 34836/06,
Judgment of the Grand Chamber, 22 Dec. 2009,
Hirst v. United Kingdom (No. 2), ECHR App. No. 74025/01, para. 52 (Mar. 30, 2004)
Case of Greens and M.T. v. the United Kingdom (Applications nos. 60041/08 and 60054/08)
23 Nov 2010
Reading
B Kingsbury, International Courts: Uneven Judicialization in Global Order, n: J
Crawford and M Koskenniemi (eds), Cambridge Companion to International
Law (2012), <http://ssrn.com/abstract=1753015>.)
Armin von Bogdandy and Ingo Venzke, ‘On the Functions of International Courts: An
Appraisal in Light of Their Burgeoning Public Authority’, (2013) Leiden Journal of
International Law
Başak Çali, and Koch, Anne, and Bruch, Nicola, ‘The Legitimacy of Human Rights Courts:
A Grounded Interpretivist Analysis of the European Court of Human Rights’, (2013) Human
Rights Quarterly
Additional/recommended reading
T Broude, ‘The Legitimacy of the ICJ's Advisory Competence in the Shadow of The Wall’,
(2005) Israel Law Review
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Christopher McCrudden and Brendan O’Leary, ‘Courts and Consociations, or How Human
Rights Courts May De-stabilize Power-sharing Settlements’, (2013) EJIL
J Hiebert, ‘The Human Rights Act: Ambiguity about Parliamentary Sovereignty’, (2013)
German Law Journal
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Public International Law
Gentian Zyberi
Diplomatic and consular protection
Diplomatic protection consists of the invocation by a State, through diplomatic action or
other means of peaceful settlement, of the responsibility of another State for an injury caused
by an internationally wrongful act of that State to a natural or legal person that is a national of
the former State with a view to the implementation of such responsibility (Article 1, 2006
ILC Articles on Diplomatic Protection).
Questions
What is the tool of diplomatic protection?
How does it differ from that of consular protection?
How often have these tools been used? Mention other cases which have not been included in
the seminar materials.
Is there an obligation on the part of States to exercise diplomatic protection on behalf of their
citizens?
Case scenarios
A number of case scenarios will be handed out or uploaded in Fronter before the seminar.
Reading
Anna Maria Helena Vermeer-Künzli, Diplomatic Protection in Current International Law.
Relevant treaties and other documents:
From Chapter III of the United Nations Treaty Series (UNTS)
3.
Vienna Convention on Diplomatic Relations. Vienna, 18 April 1961
Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning
4.
Acquisition of Nationality. Vienna, 18 April 1961
Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the
5.
Compulsory Settlement of Disputes. Vienna, 18 April 1961
6.
Vienna Convention on Consular Relations. Vienna, 24 April 1963
Optional Protocol to the Vienna Convention on Consular Relations concerning
7.
Acquisition of Nationality. Vienna, 24 April 1963
Optional Protocol to the Vienna Convention on Consular Relations concerning the
8.
Compulsory Settlement of Disputes. Vienna, 24 April 1963

2006 ILC Articles on Diplomatic Protection
Relevant case law
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ICJ
United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p. 3.
LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466.
Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ
Reports 2004, p. 12.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment, ICJ Reports 2010, p. 639.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Compensation, Judgment, ICJ Reports 2012, p. 324.
Inter-American Court of Human Rights
Advisory Opinion of the Inter-American Court of Human Rights, The right to information on
consular assistance in the framework of the guarantees of the due process of law, (OC-16/99),
1 October 1999.
Additional/recommended reading
Audio-visual Library of International Law, Diplomatic and Consular Relations, at
http://legal.un.org/avl/ha/dcrelations.html.
Audio-visual Library of International Law, Diplomatic Protection, Lecture by John Dugard.
Anna Maria Helena Vermeer-Künzli, The Protection of Individuals by means of Diplomatic
Protection: Diplomatic Protection as a Human Rights Instrument (E.M. Meijers Instituut,
2007).
Chittharanjan F. Amerasinghe, Diplomatic Protection (Oxford University Press, 2008).
Gentian Zyberi, ‘The Humanitarian Face of the International Court of Justice: Its
Contribution to Interpreting and Developing International Human Rights and Humanitarian
Law Rules and Principles’ (Antwerpen– Oxford–Portland: Intersentia, April 2008), pp. 159190.
Stephan Wittich, Diplomatic Protection, Oxford Bibliographies.
EU, Diplomatic and consular protection.
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