18. The law of the sea

This chapter explores the law of the sea. The ‘law of the sea’ is a blanket term, describing the law relating to all bodies of water, irrespective of whether they are subject to the jurisdiction of a State. Naturally, the seas are tremendously important globally; the seas are a crucial means of communication and trade, allowing for the transport of persons and goods around the world. The seas and their subsoil are also a valuable economic resource. However, the law of the sea is not also important for its significant contributions to public international law. The law of the sea governs a series of overlapping sovereign interests and projections of jurisdiction. The basic concept is that the sea is divided into two broad categories: territorial sea and high seas. The exact line between these two has been at the heart of more than four centuries of legal developments and disputes.

14. The use of force and collective security

This chapter looks at the use of force and collective security. Today, the United Nations Charter embodies the indispensable principles of international law on the use of force. These include the prohibition on the unilateral use of force found in Article 2(4), and the recognition of the inherent right of all States to use force in self-defence found in Article 51. Finally, under Chapter VII, a collective security system centred upon the Security Council was established for the maintenance of international peace and security. A key debate over the scope of Article 2(4) is whether a new exception has been recognized which would allow the use of force motivated by humanitarian considerations. It is argued that these ‘humanitarian interventions’ would allow a State to use force to protect people in another State from gross and systematic human rights violations when the target State is unwilling or unable to act.

9. Immunities

This chapter explores the concept of immunities. Immunity from jurisdiction describes the doctrines developed in domestic courts over time to avoid infringements on State sovereignty whenever possible. Generally speaking, immunities seek to prevent foreign courts from exercising jurisdiction regarding the conduct of another State, its agents, officials, or diplomatic representatives, as well as from adjudicating on inter-State disputes without their consent. Due in part to the historical conflation of State and sovereign that defined the scope of immunity, several mechanisms have been developed that allow various categories of officials of States to invoke immunity in the courts of another State. Often an exemption from local jurisdiction exists in relation to mundane violations such as driving offences or administrative matters. However, exemption from jurisdiction has important policy implications if the act in question would constitute an international crime.

7. The law of treaties

This chapter describes the law of treaties. As defined in Article 2(2) of the Vienna Convention on the Law of Treaties (VCLT), a treaty can be embodied in a single instrument, or in two or more related instruments. It is a written agreement; between international legal subjects; and governed by international law. In short, a treaty must be written in order to fall under the scope of the VCLT. Though this does not mean that oral agreements have no effect in international law, it does mean that the law of treaties embodied in the VCLT does not govern oral agreements. While States are the most active actors entering into treaty relations, international organizations may also enter into treaties, whether between them or with a State. Ultimately, because a treaty’s purpose is to create binding international legal obligations, the law of treaties applies to agreements governed by international law.

6. International organizations

This chapter looks at international organizations, their differences to States, and their position within the international legal order. Today, international organizations exist in virtually all fields of transnational and global collective concern. In the broadest sense, they facilitate international cooperation in all areas from the harmonization of tariffs to the management of delicate ecosystems, and range in their scope from small bilateral commissions regulating transboundary resources to regional security and economic organizations, all the way to the universalist aspirations of the UN. The chapter then considers the question of establishing the legal personality of international organizations under international law, which must be distinguished from the question of whether an international organization may also hold legal personality under the domestic law of a State.

4. International law and municipal law

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.

19. The protection of the environment

This chapter studies the development of international environmental law. A significant proportion of international environmental law obligations is contained in treaties, which often provide for institutional mechanisms or procedural obligations for their implementation. There exists a dense network of treaty obligations relating to environmental protection, and to specific sectors such as climate change, the conservation of endangered species, or the handling of toxic materials. Indeed, though customary international law knows of no general legal obligation to protect and preserve the environment, certain customary rules nevertheless have been found in specific treaties, case law, and occasionally even soft law instruments. The most significant such rule is the principles of prevention, often taking the form of the ‘good neighbour’ principle. States are required to exercise due diligence in preventing their territory from being used in such a way so as to cause significant damage to the environment of another state.

16. International human rights and refugee law

This chapter addresses international human rights and refugee law. In 1948, the General Assembly adopted the famed Universal Declaration of Human Rights (UDHR). Many of its provisions have influenced the adoption of major multilateral treaties, or have come to reflect customary international law, at times through influencing the drafting of State constitutions. The UDHR has also been referred to by international courts to give weight, or to interpret, obligations contained in other treaties. Two overarching covenants were also adopted separately in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). In parallel with the emergence of human rights protection at the international level, several regional frameworks exist. The chapter then looks at the European, American, and African human rights conventions and accompanying institutions.

13. Enforcement short of force

This chapter focuses on enforcement short of force in international law, particularly studying countermeasures, the primary measures available to States in order to induce compliance of wrongdoers with their international obligations. In the last decades, there has been the codification and attempted development by the ILC, in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) of an international regime regulating countermeasures. To characterize an act as a ‘countermeasure’ is to concede its illegality in normal circumstances: by definition, countermeasures are acts which are ‘intrinsically unlawful, but are justified by the alleged initial failing to which they were a response’. Countermeasures may not in any case involve the use of armed force. The chapter also discusses the category of reprisals, the so-called ‘acts of retorsion’, and sanctions.

10. State responsibility

This chapter illustrates the concept of responsibility in international law. Within international law, the term ‘responsibility’ has long been understood to denote how fault or blame is attributable to a legal actor for the breach of an international legal obligation. State responsibility remains the archetypal and thus most developed form of international responsibility. Nevertheless, other international actors apart from States may also bear rights and obligations under international law. The result of such capacity is the potential to bear responsibility for a breach of an international legal obligation. International law also provides for what are termed ‘circumstances precluding wrongfulness’, through which an act which would normally be internationally wrongful is not deemed as such. In such situations, international responsibility is not engaged. These are akin to defences or excuses in municipal legal orders.