1.

European law -> European Union

public law -> states

law -> freedom and peace

sources: primary (treaties), secondary (regulations, etc)

What is International Law?

- consists of the rules and principles of general application dealing with the conduct
of States and of international organizations in their international relations with one
another and with private individuals, minority groups and transnational companies.

- international organizations

- states

Hugo Grotius (17th century): 30 years war (protestants-><- Catholics) -> peace of
Westphalia

Sweden, France

- principle of sovereignty

-> "De Ivre Belli Ac Pacis"

Why do we have wars? -> to have peace: after every war there is a peace treaty/
agreement

What is a state?

a permanent population
a defined territory (Palestine, Israel - no defined territory?)
a government and
the capacity to enter into relations with other states
must be fully independent and be recognized as a state by other states? -
important, but not necessary
one official language? - for documents; it is helpful, but not necessary

What are International Organizations?

- are established by states through international agreements and their powers are
limited to those conferred on them in their constituent document.
 - not constitutional law

Sources of Law

- the article 38 (Statue of the International Court of Justice), describes the law to be
applied by ICJ

Art. 38 of the Statue

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) subject to the provisions of Article 59, 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

International Conventions (Treaties)

International

Vienna Convention on the Law of Treaties

The law of treaties is set out in the 1969 Vienna Convention on the Law of Treaties
which contains the basic principles of treaty law, the procedures for how treaties
becoming binding and enter into force, the consequences of a breach of treaty, and

International custom - (customary law)

Is an evidence of a general practice accepted as law through a constant and

virtually uniform usage among states over a period

General Principles of Law

- are usually used when no treaty provision or clear

Subsidiarity means for the determination of rules of law

3.

Lotus case

The first principle of the lotus case

Within its territory, a state may exercise is jurisdiction

Nowadays the lotus case

What means sovereignty?

Sovereignty has two aspects

external
internal

Different meanings

Grotius defines it as the supreme political power vested in him whose acts are not
subject to any other and whose will cannot be over-ridden

Burgess defines it as 'original, absolute, unlimited power over the individual

subjects and over all other associations of subjects. It is the underused and
independent power to command and compel obedience.

Internal sovereignty

- internally sovereignty is supreme over all citizens, aliens, associations and

organizations. Its law is final and binding. All have to obey it. If it is disobeyed, it is
followed by physical penalties.

External sovereignty

- externally, sovereignty is free and independent, equal to other sovereigns. A state

is master of its destiny and decides about peace and war. It sends and receives
diplomatic agents, enters in contracts, treaties and participates in international
conferences on an equal footing with other states irrespective of its size, population
or power.
Entebbe case

On Sunday, June 27, 1976, an Air France jetliner with 256 passengers and a free of
12, en route from Tel Aviv to Paris via Athens, was hijacked after taking off from
Athens.

After refueling at Benghazi in Lybia, the four hijackers, claiming to be members of

the Popular Front for the Liberation of Palestine, ordered the plane to Entebbe
Airport in Uganda, where it was given permission to land.

Thus began an act of air piracy that was to end 7 days later on July 4, 1976, with the
successful Israeli airborne commando raid on Entebbe Airport freeing 105 hostages
were Israeli nationals or dual nationals.

Question: Did Israel harm the sovereignty of Uganda?

Article 2 UN Charter

(1) The Organization is based on the principle of the sovereign equality of all its
members

...

(4) All Members shall refrain in their international relations from them threat or use
of force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the purposes of the UN

Art 2

1. Members

Israel +

Uganda +

2. Territorial integrity

3. Force/ violence

1. Treaties

2. Customs

3. principles general

4. Jurisdiction
5. Opinions of professors

4.

State Secession

- means not State succession

- state succession = a theory and practice in international relations regarding the

recognition and acceptance of a newly created sovereign state by other states,
based on a perceived historical relationship the new state has with a prior state

Secession is the withdrawal of a group from a larger entity, especially a political

entity (a country, a state or a county), but also any organization, union or military
alliance.

or

Secession is the creation of a new independent entity through the separation of part
of the territory and population of an existing state without the consent of the latter
state.

Devolution - just give power to a country

- The transfer of some powers, and the delegation of some functions, from a central
sovereign government to local government; eg. from Westminster to Scottish
parliament and Welsh assembly

Decolonization

Secession

- the essential questions at issue concern whether there exists a right to secession
and the role of the fundamental principles of international law in supporting or
opposing the creation of a new independent entity. (Marcelo Kohen)

-> military force

-> a kind of agreement

-> a reason for secession

e.g. different nations

-> propaganda
 -> international recognition

-> political strength

-> functioning institutions

-> new constitution

-> will of people

Self-determination

self-determination as right for secession?

Most sovereign states do not have the right for self-determination through secession
in their constitutes, but most of them expressly forbid it. e.g. China and the Soviet
Union

Minorities

Do minorities have the right for self-determination through succession?

- international law: no regulation regarding secession; Friendly Act; we have

regulations for succession -> sometimes UN gives the right for it

The Friendly Relations Declaration 1970

This declaration is highly important in the area of international public law and is one
of the most important legal instruments concerning the right to self-determination

Ukrainian Revolution of 2014

- March 2014, the governments of the Autonomous Republic of Crimea and the city
of Sevastopol declared independence from Ukraine and asked to join the Russian
Federation

- The Donetsk People's Republic was declared to be independent from Ukraine on 7

April 2014, comprising the territory of the Donetsk Oblast.

- The Lugansk Parliamentary Republic was proclaimed on 27 April 2014, before

being succeeded by the Lugansk People's Republic
5.

Failed state

no longer perform basic functions:

- education
- security
- governance

Total governmental collapse means

loss of control of its territory

the legitimate authority cannot make collective decisions
public services is declining
no interaction with another sovereign states

A Failed State occurs (in most cases)

- paramilitary groups (warlords)

- terrorism

- corruption

Measurement

- Fragile States Index (FSI)

- Freedom House Index (FHI)

- Human Development Index (HDI)

- World Bank Governance Indicators

All indicators deal with:

- social indicator

- economic indicators

- political and military indicators

6. Citizenship -Principles in Public Law -

- ius soli

- ius sanguinis

- naturalization

ius soli

- Ius soli citizenship is awarded on the basis of birth in a territory

Different forms of ius soli

ius sanguinis

right of blood. Citizenship is not determined by place of birth but by having one or
both parents who are citizens of the state

naturalization

Naturalization is the legal act or process by which a non-citizen in a country may

acquire citizenship or nationality of that country.

Problems and Principles

dual or multiple citizenship

genuine link as a principle of the Public Law

Case of Nottebohm

genuine link

- habitual residence

- participation in public life

- centre of his/her interests

- used language

- family ties

7. Case of Trail Smelter

Ultra-hazardous activities - principle in international public law

- inform the other !!

9. Article 36 - EXAM!

Art 36 (2)

Article 36(2) of the court's statute, known as the Optional Clause, allows states to
make a unilateral declaration recognizing "as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes"

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 36

1. The jurisdiction of the Court comprises all cases which the parties refer to it and
all matters specially provided for in the Charter of the United Nations or in treaties
and conventions in force.

2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the jurisdiction of the Court in all
legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of

an international obligation;

d. the nature or extent of the reparation to be made for the breach of an

international obligation.

3. The declarations referred to above may be made unconditionally or on condition

of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United
Nations, who shall transmit copies thereof to the parties to the Statute and to the
Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of

International Justice and which are still in force shall be deemed, as between the
parties to the present Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they still have to run and in
accordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall
be settled by the decision of the Court.

OPTIONAL CLAUSE

Thirdly, Article 36(2) allows states to make declarations accepting the Court's
jurisdiction as compulsory ("optional clause declarations"). Not all countries accept
the compulsory jurisdiction of the International Court of Justice, ICJ. For example,
Australia accepts compulsory ICJ jurisdiction "with reservations" whereas Brazil has
not accepted compulsory ICJ jurisdiction, directly. However, Brazil has accepted the
compulsory jurisdiction by becoming a Party to the Pact of Bogota.

It was, moreover, to a Brazilian delegate, Raul Fernandes, that the concept of the
optional compulsory jurisdiction mechanism was owed. First adopted in 1922 for the
Permanent Court of International Justice (the predecessor of the International Court
of Justice under the League of Nations), this system was readopted in 1945 for the
International Court of Justice. "The 'Fernandes clause' has thus had the merit, not
only of having represented a historic step forward for international law, but also of
constituting today, for 62 States, one of the bases of the Court's jurisdiction",
according to its President.

Connally Reservation

- the US invoked a self-judging reservation - in every case they decided who is

responsible for the case, the US or the international Court of Justice

self-judging reservation- it allows states to avoid the court's jurisdiction previously

accepted under the Optional Clause if they decide not to respond to a particular
suit.

-> if they refuse to face the international court, they have to face their national
court

On 14 August 1946, the United States qualified its acceptance of the compulsory
jurisdiction of the International Court of Justice (ICJ) under Art. 36 (2) Statute of the
International Court of Justice (the Optional Clause International Court of Justice,
Optional Clause) in its Declaration of Acceptance (1946 Declaration) through a
clause which excludes disputes with regard to matters which are essentially within
the domestic jurisdiction of the United States of America as determined by the
United States of America (emphasis added). This clause is known as the Connally
Reservation and was named after Senator Tom Connally of Texas who proposed the
addition of the words as determined by the United States of America to the 1946
Declaration in order to prevent any potential interference by the ICJ in domestic
matters of the US (eg, immigration or regulation of tariffs and duties). The fact that
the declaration leaves it to the declarant State to determine whether a dispute
comes within the jurisdiction of the Court under Art. 36 (2) Statute of the ICJ
distinguishes the self-judging or auto-interpretative Connally Reservation
(Treaties, Multilateral, Reservations to) from the more common exception of
domestic jurisdiction in declarations under the Optional Clause whereby a State
excludes the jurisdiction of the Court with respect to matters falling within its
domestic jurisdiction without reserving its exclusive right to decide which matters
come within the scope of this exception (eg, a declaration of acceptance excluding
disputes which, by international law, fall within the jurisdiction of the declarant
State, which has been formulated by a significant number of States; Jurisdiction of
States).