Activities
Activity
1
(5 minutes)
Review the session
objectives (Overhead Transparency 3.1).
Activity
2
(5 minutes)
Distribute Handout
3.1: "Treaty and customary law quiz". Give participants
two minutes to complete the quiz individually. They do not need to share
their answers at this point. For the answer key, see Activity 4.
|
Individual
work
Please
note if true or false:
1. International
organizations can also be subjects under international law.
|
|
True
|
False
|
|
| 2. Declarations
adopted by the General Assembly of the UN are treaties. |
|
True
|
False
|
|
| 3. It is
not necessary for states to ratify an international treaty to become
legally binding on those states. |
|
True
|
False
|
|
| 4. There
are two elements to international customary law, namely practice
and opinio juris. |
|
True
|
False
|
|
| 5. Reservations
can be filed anytime. |
|
True
|
False
|
|
| 6. Reservations
normally cover the objective and purpose of the treaty. |
|
True
|
False
|
|
Activity
3
(20 minutes)
If you have sound
knowledge of treaty and customary law, you can make a presentation using
Overhead Transparencies 3.2 to 3.17. Or, you can distribute
Reading 3.1: "The basics of treaty and customary law"
and allow participants 10 to 15 minutes for silent reading. If you make
a presentation, be sure to cover the following:
The basics
of treaty and customary law
States as
the main actors in international law
International
law is that body of law, which regulates the legal relationships between
states. Such law can regulate all types of dealings between states:
trade, environmental issues, human rights, and so on. International
organizations, too, can sometimes be subjects under international law.
The law is drawn from a number of sources, according to Article 38 of
the Statute of the International Court of Justice (the International
Court of Justice is based in the Hague). The most important areas are
international conventions and international custom.
(Overhead
Transparency 3.3)
International
conventions
As an example
of international conventions, also referred to as treaties, we can mention
the United Nations Charter adopted in 1945, one of the most fundamental
and important international instruments. Other examples are the Covenant
on Civil and Political Rights and the Covenant on Economic, Social and
Cultural Rights. These two latter instruments were adopted in 1966.
The 1989 Convention on the Rights of the Child and the 1979 Convention
on the Elimination of All Forms of Discrimination Against Women are
two additional instruments that are particularly important in the context
or realizing the rights of women and children.
Treaties normally
contain a number of articles specifying the scope of the treaty, mechanisms
for solving disputes, and entry into force. However, resolutions adopted
by the General Assembly of the UN are not treaties and are not legally
binding. They are guiding tools for states and sort of recommendations
on how to act in certain situations. There are some examples, however,
where resolutions, or at least part of them, have formed international
customary law. An example of this is the Universal Declaration on Human
Rights.
(Overhead
Transparency 3.4)
Ratification
A treaty does
not enter into force between states until it has been first signed,
and then ratified by the states concerned. The procedure for ratification
will vary depending on the internal procedures of the state concerned.
In some countries ratification is done through a piece of legislations,
while in others it can be done as an administrative decision. 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 accede is used instead of
ratification.
(Overhead
Transparency 3.5)
International
custom
International
custom is useful in that a state does not have to sign onto it in order
to be bound by it. There are two elements for international custom to
emerge, namely practice and so called opinio juris. Opinio juris means
that states are acting in a certain manner because it is their legal
obligation to do so. One may find proof of international customary law
by demonstrating that a certain practice is taking place and that the
states who are 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. For example, many scholars claim that the principle of non-refoulement,
i.e. not returning a refugee to the country where s/he is likely to
be persecuted, has gained the force of customary law. Accordingly, a
state would not even have to be a party to the 1951 Convention relating
to the Status of Refugees for that particular provision to apply.
(Overhead
Transparency 3.6)
Reservations
Article 2(1(d))
of the Vienna Convention on the Law of Treaties defines 'reservation'
as "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".
Normally, a reservation can be filed if not prohibited by the treaty,
but it 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". A reservation is considered to be accepted if no objection
is raised.
For example,
some Islamic countries have made reservations to the Convention on the
Rights of the Child, saying that in case of conflict with the Shari’a,
the law of the Shari’a must rule. A number of countries have raised
objections against these reservations, saying that they are incompatible
with the object and purpose of the treaty.
Most treaties
allow for states to make reservations on specific articles. An important
aspect as far as reservations to human rights provisions are concerned,
is to define a strategy on how to make states withdraw their reservations.
This is important because 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. An argument that can be
used in the advocacy work to have reservations withdrawn, is the fact
that the Committee on the Rights of the Child time and time again has
asked states to withdraw their reservations. In addition, for the human
rights advocate, it is important to note that the reservations can be
used to indicate and understand what the actual problems in a given
situation are.
(Overhead
Transparencies 3.7 to 3.10)
Activity
4
(5 minutes)
Uncover the flipchart
sheet with the six questions from the "Treaty and customary law
quiz". Ask the plenary to answer the questions "true"
or "false" quickly; mark their answers on the flipchart. Have
them elaborate on their answers and provide clarifications, if necessary.
Have participants
compare their answers on Handout 3.1 with the marked flipchart.
Ask how many people had answered all questions correctly at the beginning
of the session.
Answer key
1. True; 2.
False; 3. False (with the one exception that if the provisions are part
of customary law, they will be binding on states without ratification;
4. True; 5. False; 6. False.
Hand out copies
of Reading 3.1 if you have not done so yet.
Activity
5
(10 minutes)
Distribute Reading
3.2: "The Charter of the United Nations". Give participants
five minutes to read Article 2, 39, 40, 41 and 51 of the Charter. Tell
the participants that you will be referring to the Charter throughout
this session, and particular those articles, which they have just read.
Then distribute Readings 3.3. to 3.5. and explain that
these are Security Council resolutions that you will be referring to
in your presentation. In your presentation, make sure that the following
points are covered:
The use of
force in international law
The use of
force in international law is a debated issue. The options can be categorized
as follows:
-
Individual
and collective self-defence
-
Intervention
by the Security Council
-
Humanitarian
intervention
(Transparency
3.11)
Individual
or collective self-defence
Begin the presentation
on individual and collective self-defence by referring to Article 51
of the UN Charter, and ask the participants to read that Article again
carefully. The right to self-defence is made somewhat more limited by
the fact that it requires "an armed attack" to occur before
a state is able to take such action. It is noteworthy that the Charter
in Article 51 uses "armed attack", which makes it explicitly
exclude other types of "force", which is the language used
in Article 2(4).
(Overhead
Transparency 3.12)
Refer to Reading
3.3 "Security Council Resolution 678 on the situation in Kuwait/Iraq"
and explain to the participants that this would have been a typical
situation of where self-defence, both individual and collective, would
have been a lawful course of action even without this resolution. The
bridge the discussion to make the following presentation on interventions
made by the Security Council.
Intervention
by the Security Council
The only situation
in which the use of force will be taken on a clearly lawful basis, is
in connection with a Security Council decision under Chapter VII. You
may still have arguments about how the Council has taken the decision,
in particular with regard to questions of the basis of the Security
Council’s authority, the scope of that authority, and how long that
authority lasts. Once the decision is taken, the intervention under
United Nations flag is nevertheless lawful. In all other situations
the legal basis for use of force can be debated. With regard to decisions
taken by the Security Council it is important to note that:
-
Under
Chapter VII of the UN Charter, the Security Council may take action
with respect to threats to the peace, breaches of the peace, and
acts of aggression.
-
Article
41 authorizes it to decide on economic and diplomatic sanctions,
and Article 42 on military actions to restore peace. Humanitarian
aspects, for example refugee flows, have been seen as a threat to
peace.
Refer to
Article 2(7) of the Charter. Point out that this article prohibits the
UN from intervening in domestic affairs. However, it expressly provides
that this article does not limit the Security Council from action under
Chapter VII. On several occasions the Security Council has determined
that certain gross violations of human rights threatened international
peace and security and decided on, recommended, or authorized economic
sanctions or military measures.
Explain that
the Security Council has taken part in strengthening the position of
a right to humanitarian assistance in international law. Standards on
humanitarian assistance and access may also be included in peace agreements.
The UN Security Council has repeatedly stressed the importance it attaches
to "unhindered access by international organizations to all those
in need of assistance" and to "unimpeded access for humanitarian
assistance to the civilian population in need". It is therefore
important to follow the political discussions to ascertain that one
makes use of such legal tools as Security Council resolutions. If adopted
under Chapter VII, Security Council resolutions are legally binding
on all member states of the UN.
(Overhead
Transparencies 3.13 and 3.14)
Refer to Reading
3.4 and point out the language the Security Council uses in taking
a decision under Chapter VII. Also point out the language which refers
to the issue of access as you have just described it in the presentation.
Allow some time for discussion.
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 to designate such
measures. These measures are 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 have become more common and have been imposed
in a number of situations. The problem with sanctions is, of course,
that they also have impacts on human rights.
As mentioned
above, sanctions are legal in the sense that they are imposed in response
to a threat to international peace and security and are supported by
an international treaty, the UN Charter. However, sanctions have a serious
impact on the enjoyment of human rights, and in particular children
become vulnerable in such situations. This is because certain items
that are necessary for the child’s survival and development could at
the same time be used for military purposes. One example would be the
use of chlorine in order to purify drinking water, which is essential
to the child’s health, but at the same time the soldiers also need clean
water to stay healthy. Human rights obligations continue to be valid
also in situations where sanctions are in place. As the Committee on
Economic, Social and Cultural Rights noted in its General Comment 8
on economic sanctions and their impacts on the rights in the Covenant,
it becomes all the more important for states to use to the maximum extent
possible their resources to fulfil their obligations under the Covenant
on Economic, Social and Cultural Rights, and to monitor whether the
state has taken all measures to ensure that the rights in relevant human
rights treaties are being implemented.
Normally, when
imposing sanctions on a certain country, the Security Council also provides
humanitarian exemptions. The question then is, whether these exemptions
are sufficient to maintain the fulfillment of the vulnerable population’s
economic and social rights, at least at the pre-sanction level (i.e.
to prevent a deterioration or violation) and whether the sanctions are
"smart" in the sense that they target the government so as
to produce change instead of unduly punishing the civilian population.
Therefore,
in our advocacy work we need to be part of the process in which decisions
about sanctions are being taken, in order for the needs of the children
to be taken into account.
(Overhead
Transparency 3.15 and 3.16)
In discussing
the impact of Chapter VII decisions on international aid agencies, it
is important to remember Article 48 (2) of the UN Charter, which states
that "[s]uch decisions shall be carried out by the Members of the
United Nations directly and through their action in the appropriate
international agencies of which they are members."
Humanitarian
intervention
Humanitarian
intervention is not explicitly dealt with in the UN Charter, although
the right to self-determination is explicit in Article 1(2). Humanitarian
access should not be confused with humanitarian intervention. Humanitarian
intervention relies on the use of force, economic or military, by one
or several states. The term has been used in operations where a state
or several states have intervened on the territory of another state
because of gross violations of human rights, to set free hostages, or
for the purpose of delivering humanitarian aid.
Scholars were
arguing a right to intervene for humanitarian purposes mainly before
the end of the Cold War, when many situations were politically loaded
and it was impossible to reach consensus in the Security Council on
action under Chapter VII. Humanitarian intervention was discussed as
a right, not a duty. By saying this, states meant that if they felt
compelled to intervene with humanitarian action, they had a right to
do so, but they did not have a duty to do so in case they were not interested.
Mostly arguments were based on Article 2(4) of the UN Charter, saying
that humanitarian intervention was part of the self-defense of the country
concerned, and that either explicit approval had been received from
the authorities, or silent acquiescence. In that sense there was no
violation of Article 2(4), as humanitarian intervention was not action
against "territorial integrity or political independence of any
state". Article 51 is also commonly used as part of an argument
for humanitarian intervention, stating that the intervention is action
taking in self-defense on behalf of the people. It is evident that the
arguments were highly questionable, and that many interventions have
been and are carried out of pure political self-interest.
(Overhead
Transparency 3.17)
Activity
6
(20 minutes)
Distribute Reading
3.5 "Security Council Resolution on Somalia". Ask participants
to read the resolution, and then put the following questions to the
group on a flipchart: What is the basis for Security Council authority?
Did it matter that Somalia did not have a government? What is the threat
to peace or breach or breach of peace in Somalia? Does the Security
Council always have to determine a threat to international peace and
security?
The answers
can be debated in groups before reporting to plenary.
Activity
7
(5 minutes)
Wrap up the session
referring back to the session objectives (Overhead Transparency 3.1).
PowerPoint:
International law
