After break Flashcards
What are the steps to check for a case of breach of IL?
- Action attributable to state & and constitutes a breach of an international obligation (Art. 2 ILC)
- No case of excemption(Art. 20-26 ILC)
- Consequences of Breach:
- Cessation and non-repetititon (Art. 29-30 ILC)
- Reparation (Art. 31 & 34 ILC)
- Countermeasures (Art. 49-52 ILC) - Dispute Settlement options of Art. 33 UNC
What is the main implication of the “rainbow warrior”?
The breach of treaty law obligations (such as material breaches under Art. 60(3)b VCLT) trigger State Responsibility articles (ILC)
What are the two types of how the ICJ can get involved in matters of importance in international law?
- Advisory opinions (specifically requested by the GA)
- An opinion looks at important facts, but not at all details
- not legally binding - Dispute Settlement between States
- parties must consent via signed agreement to a settlement of dispute to grant the ICJ the necessary jurisdiction
- Hererby the ICJ needs to look at every singel fact brough up by any state regarding the ,atter
- Binding upon the states
How can treaties affect CIL?
- Treaty codifies pre-existing CIL
- Treaty crystallizes emerging rules of CIL
- Treaty generates new custom after entry into force when accompanied by consistent state practice
(Especially when firms that are not parties to the contract feel obliged to act in conformity with the new rules)
–> the treaty needs to have norm-creating character and must have had the respective intention
Explain the State of Necessity (Evading Responsibility)
Requirements:
- only means to safeguard an essential state interest from a grave and imminent peril
- it does not seriously impair an essentail interest of the international community as a whole (or a state towards which the obligatione exists)
- the invoking state must have not contributed to the occurence of the state of necessity
Consequence of invalid assumption of the right:
- stop the non-compliance
- return to the compliance
- provide for compensation
Explain the “Countermeasures” and their validity (Evading Responsibility)
Conditions laid down in Art. 49-53 ILC
- in response to an unlawful act by another state and directed towards that state
- called upon the state committing the wrongful act to discontinue the act or make reparations for it
- effect of the countermeasure must be proportionate
- purpose must be to induce the wrongdoing state to comply with its obligations
- it must be reversible
What is the principle of approximate application?
In the event of a termination of a treaty, the other party is entitled (obliged) to bring the implementation of the treaty, as if the treaty hadn’t been terminated.
Explain: ICCPR and individual claims
Committee of the ICCPR has no binding legislation power and can therefore only do recommendations.
For individuals complaints to be admissible, the state must have ratified both the main document of the ICCPR as well as the additional protocol.
However, no claims can be brought against articles for which the country put a reservation forth.
The use of force can be seperated in two parts:
- Ius ad bellum (the right to wage war)
- the legal order that governs when force is used lawfully or not
- it prohibits resort to force as a mean of settling an inter-state dispute - Ius in bello (the law applicable in situations of armed conflict)
- guarantees a minimum of humanity in armed conflict
- restrictions on the conduct of war with a view to limiting suffering and destruction once an armed conflict breaks out
Sources of International Humanitarian Law:
1) Geneva conventions
- law regarding the woudned and sick in battle, maritime conflicts, and prisoners of war
- only article of the Geneva Convention applicable to non-international armed conflicts (=NIAC) (e.g. civil war) is Art. 3 of the Convention
- because the additional protocols are not universally ratified it is most often the third article which is applicable
2) the Hague Laws
- focus on the way war is fought and which weapons to use
Is the use of nuclear force unlawful according to the sources of law?
Neither treaty law nor CIL forbid the use of nuclear force.
But there are several principles which dramatically restrict the use of nuclear force:
1. Principle of Distinction= never use weapons that are incapable of distinguishing between civilian and military targets
2. Prohibition of unnecessary suffering= prohibited the use of weapons that uselessly aggrave the suffering
3. Principle of Humanity= if there is no treaty protecting the civilians, but one deems the attack one want to carry out inhumane, violating humanity, it is forbidden
4. Principle of Proportionality= attacks need to be weigthed up against the (ecological) damage they will cause
5. Principle of military necessity= attacks need to follow a purpose, the one to win the armed conflict
