8/14/2019 What is public International Law

1/7

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 in

different 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. Agreements between states govern the mutual relations

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

Unlike 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 question, or not.

When 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 justice.

Two criteria

8/14/2019 What is public International Law

2/7

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

Opinio Juris - Opino Juris is the expressed opinion of states that their actions have a

legal basis. It is thus states themselves (subjective criteria) that recognise certain legal

practices or rules as being legally binding.

Usus - Customary law is confirmed through the actions of states (objective criteria) in

accordance with what is expected of them by international jurisprudence. States' 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. When 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.

Examples of international customary law are the right to life, the prohibition of torture,

and that civilians should not be the object of an attack.

Jus cogens

Some rules of international law are part of the Latin concept of "jus cogens", also referred

to as peremptory norms, and meaning "the compelling law". Jus cogens status is the

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

Jus 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

exceptions can be made (article 53 of the Vienna Convention on the Law of Treaties). All

states are therefore obliged to follow jus cogens rules at all times. Crimes which have

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

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

To the Vienna Convention on the Law of Treaties

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdfhttp://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

8/14/2019 What is public International Law

3/7

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.

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

right to life, the right to freedom of opinion and expression and the right to health and

housing are examples 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. A derogation from a right means that the right is

not activated for a certain period of time. An example 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.

Certain 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. Contrary to a

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

manner. Examples of rights which can be limited are the right to freedom of expression

and the freedom of association.

Fundamental 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 extends to

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

The relation to international humanitarian law

8/14/2019 What is public International Law

4/7

The International Court of Justice in its Advisory Opinion on the Wall from July 2004

considered the inter-relation between the two bodies of law international humanitarian

law and human rights law. It concluded that by dealing with a situation of armed conflict,

IHL is a specific law (lex 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 law:

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 examined under both

branches of law, for example during armed conflict.

Therefore, each action needs to be examined under IHL, human rights law or both

together depending on the circumstances.

Read more about the ICJ Advisory Opinion

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 object 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 injuries or unnecessary suffering. There are

several agreements within international law that prohibit or limit the use of certain

weapons for that reason.

The use, production, stock-piling, and transfer of anti-personal landmines are prohibited

according to the Ottawa Treaty of 1997.The 1980 Convention on Certain Conventional

http://www.diakonia.se/sa/node.asp?node=860http://www.diakonia.se/sa/node.asp?node=860

8/14/2019 What is public International Law

5/7

Weapons (CCW) includes five protocols covering landmines, incendiary weapons

(weapons that set fire to objects or cause burn injuries to persons), blinding laser

weapons, and explosive remnants (weapons and ammunition left behind after war),

undetectable fragments (weapons with the effect to injure by fragments that are non-

detectable by x-ray). These treaties are binding on states that have signed and ratified

them.

To ICRC and the Ottawa Treaty

To ICRC and the CCW

Biological and chemical weapons

The use of biological and chemical weapons is prohibited by the 1925 Geneva Protocol.

The Protocol is considered custumary international law and is therefore binding on all

states regardless of whether they signed it or not.

To ICRC and the 1925 Geneva Protocol

Read more about international customary law

In 1972 and 1993, conventions were adopted to prohibit the use, as well as the

production, transfer, and stock-piling of biological and chemical weapons. These treaties

are binding on states that have signed and ratified them.

To ICRC and the 1972 Biological Weapons Convention

To ICRC and the 1993 Chemical Weapons Convention

Below you will find information about the concept of military necessity, and what is

meant by the term collateral damage.

Military necessity

Military necessity is an exception to a prohibition in international humanitarian law

(IHL). The concept military necessity does, however, not give the armed forces the

freedom to do what they want.

http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d111fff4b9c85b0f41256585003caec3http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/626de49e3227d36dc125641e003a172ahttp://www.diakonia.se/sa/node.asp?node=993http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d5043567185f7e87c125641e00527e39http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/3f233cb0f0c580f8c125641f002d42a8http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d111fff4b9c85b0f41256585003caec3http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/f6426235883f9d62c125641e0052d53dhttp://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/626de49e3227d36dc125641e003a172ahttp://www.diakonia.se/sa/node.asp?node=993http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/d5043567185f7e87c125641e00527e39http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/3f233cb0f0c580f8c125641f002d42a8

8/14/2019 What is public International Law

6/7

According to the Harvard based "Program on Humanitarian Policy and Conflict

Research" (HPCR) there are five tests to verify the proper use of military necessity:

Firstly you have to ask if the measure will violate an absolute prohibition in IHL?

The right to take a measure under military necessity has to be stated in the law.

Secondly, are the military forces facing an actual state of necessity, a danger or a

need for supply?

Thirdly, is the measure taken a sufficient and effective response to the existing

threat?

Fourthly, 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

property? Lastly, is the decision taken by the correct authority and after careful review?

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

with a particular focus on the concept of military necessity.

To HPCR and the policy brief(272 kB)

Occupation or an occupied territory What is it?

A ...territory is considered occupied when it is actually placed under the authority of the

hostile army. The occupation extends only to the territory where such authority has been

established and can be exercised. (Article 42 of the Hague Regulations.)

Read more about the Hague Regulations

Once a situation exist which amounts to an occupation, the law of occupation applies

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

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

Security Council approval or what its aim is for the applicability of the law of occupation.

Occupation does not give the occupying power sovereignty over the territory; occupation

is only temporary.

http://www.diakonia.se/documents/public/IHL/nonihlforum/harvardpolicybriefonmilitarynecessity.pdfhttp://www.diakonia.se/sa/node.asp?node=892http://www.diakonia.se/documents/public/IHL/nonihlforum/harvardpolicybriefonmilitarynecessity.pdfhttp://www.diakonia.se/sa/node.asp?node=892

8/14/2019 What is public International Law

7/7

The legality of any particular occupation is regulated by the UN Charter and the law

known as "jus ad bellum". It means the legality of the use of force itself and whether the

war is just 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 ICRC and Article 42

Summary of the main rules of occupation

Civilians shall be treated as protected persons (article 4 IVGC and article 47 IVGC).

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 discriminated

against (article 27 IVGC).To ICRC and Article 4

To ICRC and Article 27

To ICRC and Article 47

http://www.icrc.org/ihl.nsf/b0d5f4c1f4b8102041256739003e6366/01d426b0086089bec12563cd00516887http://www.icrc.org/ihl.nsf/c525816bde96b7fd41256739003e636a/78eb50ead6ee7aa1c12563cd0051b9d4http://www.icrc.org/ihl.nsf/b0d5f4c1f4b8102041256739003e6366/ffcb180d4e99cb26c12563cd0051bbd9http://www.icrc.org/ihl.nsf/c525816bde96b7fd41256739003e636a/615b6a191d988a75c12563cd0051bd90http://www.icrc.org/ihl.nsf/b0d5f4c1f4b8102041256739003e6366/01d426b0086089bec12563cd00516887http://www.icrc.org/ihl.nsf/c525816bde96b7fd41256739003e636a/78eb50ead6ee7aa1c12563cd0051b9d4http://www.icrc.org/ihl.nsf/b0d5f4c1f4b8102041256739003e6366/ffcb180d4e99cb26c12563cd0051bbd9http://www.icrc.org/ihl.nsf/c525816bde96b7fd41256739003e636a/615b6a191d988a75c12563cd0051bd90