3) Customary International law, States as Actors of International Law and the Concept of Jurisdiction

Question 1

Question:
What are the two essential elements of customary international law, and how are they established?
(Hint: Think about state behavior and legal belief.)

Answer 1

Answer:
Customary international law consists of:

State Practice: Consistent actions or omissions by states.
Opinio Juris: Belief that the practice is legally binding.

Connection:
These elements ensure customary law reflects universal state behavior grounded in a sense of legal obligation, providing a dynamic source of law.

Question 2

Question:
How does customary international law interact with treaties, and what are the differences between instant and traditional customary law?
(Hint: Consider codification and rapid formation of norms.)

Answer 2

Answer:

Codification: Treaties often codify customary rules, formalizing them (e.g., Vienna Convention on Diplomatic Relations).
Traditional Custom: Evolves over time through widespread, consistent state practice.
Instant Custom: Develops quickly in response to global crises, driven by urgent needs (e.g., post-conflict humanitarian law).

Connection:
Customary law adapts to emerging challenges and ensures legal norms are not solely reliant on treaties.

Question 3

Question:
What gives states legal personality in international law, and what rights and obligations do they have?
(Hint: Think about their central role in international law.)

Answer 3

Answer:
States are the primary legal persons in international law, possessing:

Rights: Sovereignty, territorial integrity, and equality (e.g., Article 2(1), UN Charter).
Obligations: Compliance with international norms and treaties.

Connection:
States create and enforce international law, shaping legal norms through actions and omissions.

Question 4

Question:
What are the criteria for statehood under the Montevideo Convention, and how does recognition affect a state’s legal status?
(Hint: Declaratory vs. Constitutive theories.)

Answer 4

Answer:
Criteria for statehood (Montevideo Convention, Article 1):

Permanent population.
Defined territory.
Government.
Capacity for international relations.

Declaratory Theory: Recognition affirms existing statehood.
Constitutive Theory: Recognition creates statehood.

Connection:
Recognition affects sovereignty, jurisdiction, and participation in international law.

Question 5

Question:
How does state succession affect treaties and debts, and what are the limits of sovereign immunity?
(Hint: Consider legal continuity and jus cogens exceptions.)

Answer 5

Answer:

State Succession: Determines continuity of treaty obligations, debts, and assets when a state undergoes changes (e.g., dissolution or secession).
Sovereign Immunity: States are immune from foreign jurisdiction, except for violations of jus cogens norms like torture or genocide.

Connection:
Succession and immunity balance sovereignty with the need for accountability in international law.

Question 6

Question:
What is jurisdiction in international law, and what are its primary functions?
(Hint: Think about authority and sovereignty.)

Answer 6

Answer:
Jurisdiction refers to a state’s authority to regulate, adjudicate, and enforce laws. It reflects sovereignty and ensures legal order within a state’s territory while respecting international obligations.

Connection:
Jurisdiction defines the permissible scope of state authority in the global legal system.

Question 7

Question:
What are territorial and extraterritorial jurisdiction, and how do they operate?
(Hint: Think about authority within and beyond state borders.)

Answer 7

Answer:

Territorial Jurisdiction:
    Authority within a state's borders, including over persons, property, and activities within its territory.
    Example: Laws governing crimes committed within a state.

Extraterritorial Jurisdiction:
    Authority beyond a state’s borders, often limited by treaties and customary law.
    Example: Regulating a company’s overseas operations or prosecuting crimes committed abroad under specific legal frameworks.

Connection:
Territorial jurisdiction reflects sovereignty, while extraterritorial jurisdiction addresses cross-border legal issues within defined limits.

Question 8

Question:
What are universal, nationality, and protective jurisdiction, and how are they applied?
(Hint: Think about grave crimes, citizens, and state interests.)

Answer 8

Answer:

Universal Jurisdiction:
    Allows prosecution of grave crimes such as genocide, war crimes, and crimes against humanity, regardless of where they occurred or the nationality of the perpetrator or victim.
    Example: Eichmann Trial (1961).

Nationality Jurisdiction:
    Jurisdiction over a state's nationals, even when they are abroad.
    Example: Prosecution of citizens committing crimes overseas.

Protective Jurisdiction:
    Applied to acts threatening a state's security or vital interests, such as espionage or terrorism.

Connection:
These principles expand jurisdictional reach, ensuring accountability for acts beyond traditional territorial limits.

Question 9

Question:
What are the primary limitations of jurisdiction, and how do they create controversies in international law?
(Hint: Think about territorial sovereignty and conflicts.)

Answer 9

Answer:
Limitations include:

Territorial Sovereignty: Jurisdiction must not infringe on another state's sovereignty.
Extraterritorial Overreach: Actions like enforcement jurisdiction abroad can lead to disputes (e.g., Alvarez-Machain Case).

Connection:
Jurisdictional conflicts highlight the tension between state sovereignty and global legal obligations.

Question 10

Question:
How have courts addressed jurisdiction in international disputes, and what principles have they established?
(Hint: Think about cases like Lotus and Eichmann.)

Answer 10

Answer:

Lotus Case (1927):
    Established that states can exercise jurisdiction unless explicitly prohibited by international law.

Eichmann Trial (1961):
    Demonstrated universal jurisdiction over crimes against humanity, even when procedural breaches occurred.

Alvarez-Machain Case (1992):
    Highlighted the limits of extraterritorial enforcement and sovereignty conflicts.

Connection:
These cases illustrate how jurisdictional principles are applied and contested in international law.
Short Case Summaries

Lotus Case (1927):
    The PCIJ ruled that states have jurisdiction over acts outside their territory unless prohibited by international law. It upheld Turkey’s jurisdiction over a French captain after a collision on the high seas.

Eichmann Trial (1961):
    An Israeli court exercised universal jurisdiction to prosecute Adolf Eichmann for his role in the Holocaust, affirming that crimes against humanity warrant global accountability.

Alvarez-Machain Case (1992):
    The U.S. Supreme Court ruled that the abduction of a suspect from Mexico by U.S. agents, while violating Mexican sovereignty, did not preclude U.S. jurisdiction over the suspect’s trial.