Before Break Flashcards
What are the two most important ways a state can change?
- Secession: the old parent state continues to exist and continues to do so under the same name and with the same legal identity but with a reduced territory
- Decolonization: the gaining of independence
Summarize the Kosovo opinion!
The Kosovo Opinion is the ICJs Advisory opinion answering to the request of the UN General Assembly (Resolution 63/3) to comment on the legality of Kosovo’s declaration of independence.
The ICJ concluded that the declaration did neither violate general international law nor the lex specialis of the UN SC resolution 1244.
However, it remained silent on the broader issue of the right of self-determination, Kosovo’s status of statehood, and the consequences of the act of recognition by other states (§51, §82, §83).
What did the UN Security Council Resolution 1244 do?
The Resolution placed Kosovo under UN administration and reaffirmed the sovereignty of Serbia over Kosovo. Since the resolution finds its legal basis in UN Chapter 7, it clearly imposes international legal onligations.
However, it remained silent on the conditions for the final status of Kosovo and did not reserve for itself the right for the final determination of the situation in Kosovo.
What are the three principles established by the ICJ to assess international legal personality?
- Functional Legal Personality:
if exercise of the functions conferred upon an international organization by is Member States requires legal personaliy, an international legal personality is implied - Objective Legal Personality:
When an organization is recognized objectively as an international instrument, then claims can also be brought by it agains non-Member States (bur rather arbitrary) - Implied Powers Doctrine:
an international organization has the international legal personality to undertake actions that are reasonably necessary to carry out its stated objectives or functions, even if those actions are not explicitly authorized by its charter or other founding documents
–> UN has the standing to sue and be sued
What are the Subjects of public international law with certain and limited personality?
de facto governmnets, insurgents, national liberation movements, the Holy See, the Sovereing Order Malta, ICRC
What are the Capacities of Subjects under International Law?
- Ability to make claims
- Subjects to obligations imposed by international law
- Power to make valid international agreements
- Enjoy immunities from jurisdiction of other states’ national courts
What are the main sources of IL and where are they regulated?
Art. 38 of the ICJ Statute
(Regulates the law on which the ICJ can speak (=IL) and is annexed to the UNC)
- Treaties
- Customary International Law
- General Principles of Law
- Subsidiary means as Rule of Law (judicial decisions & teachings of the most highly qualified publicists)
What is the principle of Responsibility to Protect (R2P)?
Based on Art. 42 UN Charter, the Security Council can send troops into a state that did not protect its own population.
What is the two dimensions of the principle of self-determination?
Internal self-determination (“right to be represented”)
= the basic understanding of the principle of self-determination which refers to the right of a people to govern themselves within the framework of an existing state (free/fair elections, influence in laws/policies, access to rights/freedoms)
External self-determination
= refers to the right of a people to form their own independent state which is applied in cases of alien subjugation (colonialism) or if massive human rights violations breach the internal self-determination principle (Safe-Guard Clause of the FRD)
What are the specifics of a “reservation”?
- Reciprocity of reservations
= A state having raised a reservation concerning an article of a treaty cannot hold that very article against another country - Reservations are not allowed if reservations are prohibited, if only specific reservations are allowed, or if the reservation is not compatible with the treaty as it violates its objective (Art. 19 VCLT)
What are the different kinds of “violence” that are covered by the “absolute prohibition of the use of force”?
Covered:
- Use of force (e.g. demonstrations, blockade, and other operations by air, sea, or land forces)
- Armed attack (a form of use of force that always involves the employment of arms)
Not Covered:
- Intervention in the internal affairs of a country (any kind of meddling)
- Internal use of force
Is it possible for states to exclude CIL norms?
Persistent Objector
If a state has consistently rejected a practice before it became law, it will not be bound by it.
What are the two theories of the recognition of a state?
- Declaratory theory:
International personality of a state does not depend on its recognition as such by other states; statehood is a fact. - Constitutive theory:
The act of recognition itself is a necessary precondition of statehood and international personality. It is unclear, however, whether the decision must be unanimous (admission to the UN) or not (and if not: how many?).
What are the crucial differences between CIL and treaty law? And what rules apply if there is a conflict between them?
Custom may be written down, but doesnt have to be.
Treaties must be in writting.
A state may refuse to become part of a treaty in order to prevent it from becoming applicable, but it is bound by custome since it is universally binding.
In case of conflict, the basic rules apply:
- Special law prevails over the general law
- Newer law overrides the older law
What are the two conditions of Customary International Law?
- General State Practice:
The practice must be general, commonn uniform, consistent, exist for a certain time, and proof that the rule is firmly established in state practice (high treshold) - Opinio Iuris:
Belief that certain conduct is required under international law (difficult to find clear evidence). There is NO opinio iuris if the practice is just a habit or as a convenient sign of friendship or courtesy
