Final

Question 1

Jus Gentium

Answer 1

a law of nations

Question 2

Respublica v De Longchamps (Pre-colonial US court)

Answer 2

Issue: It must be determined on the principles of the law of nations, which form a part of the municipal law of Pennsylvania; and if the offenses charged in the indictment have been committed, there can be no doubt, that those laws have been violated

“This law, in its full extent, is part of the law of this state, and is to be collected from the practice of different nations, and the authority of writers. The person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations- he is guilty of a crime against the whole world.”

Question 3

Erga Omes

Answer 3

(crime) against all

Question 4

Murray v Schooner Charming Betsy (US Supreme Court)

Answer 4

Issue: Is the Charming Betsy subject to seizure and condemnation for having violated a law of the United States?

Charming betsy Rule: “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.”

Question 5

Treaty of Westphalia- 1648

Answer 5

carved Europe into nation states to bring an end to 30 years war. Brought into the lexicon the idea of sovereignty

Question 6

Difference between state and nation

Answer 6

Nation= not a recognized state, but has a well defined territory. Examples: Kurdish nation, navajo and cherokee nations.

Question 7

Difference between federal state and unitary state

Answer 7

Unitary= one unified central government
Federal= central government with internal, somewhat autonomous independent states

Question 8

The equality of states

Answer 8

Each state has the same legal rights as other states. “No principle of general law is more universally acknowledged, than the perfect equality of nations.”

Question 9

The Montevideo Convention: 4 qualifications for a state

Answer 9

1. A permanent population
2. A defined territory
3. Government
4. Capacity to enter into relations with other states

Question 10

In Re Duchy of Sealand (Administrative Court of Cologne)

Answer 10

Issue: The plaintiff seeks a declaration that he has lost his German citizenship as a result fo his acquisition of the citizenship of the so-called “dutchy of Sealand” from 14 November 1975

A State community must play a more decisive role in serving the other vital human needs of people from their birth to their death. These needs include eduction and professional training, assistance in all the eventualities of life and the provision of subsistence allowances where necessary

Question 11

Can U.S. courts hear questions from unrecognized states?

Answer 11

No, this leads to political question.

Question 12

De facto government

Answer 12

“In Fact” (effective control)

Question 13

De Jure government

Answer 13

“Legal Government”

Question 14

Disembratio

Answer 14

(dismemberment) in international law means the complete dissolution of the predecessor State and replacement by several successor States.

Question 15

Republic of Croatia et al. V. Girocredit Ban A.G. der Sparkassen (Supreme Court of Australia)

Answer 15

Issue: question as to whether the assets invested by the National Bank of the SFRY in Austria were held by the National Bank as an independent legal entity or constituted State property (in terms of international law) are to be assessed according to the domestic law of the SFRY

In the case of disembration, state property is to be distributed according to the international principle of “equity”; passing of movable State property to the successor States in “equitable proportions”. Hence, each member of this community has a private law claim to the maintenance of the status quo, thus also a legal claim against the Defendant to desist from any disposal of such property as long as the successor States do not jointly dispose of such funds and assets.

Question 16

Ex aequo et bono

Answer 16

what’s fair and equitable at the case in hand

Question 17

The Tinoco Arbitration (Treaty of arbitration)

Answer 17

Issue: (1) Great Britain contends, first, that the Tinoco government was the only government of Costa Rica. (2) Second, that the succeeding government could not by legislative decree avoid responsibility for acts of that government affecting British subjects

The principles of the continuity of states. The state is bound by engagements entered into by government that have ceased to exist; the restored government is generally liable for the acts of the usurper.

Question 18

Principle of the continuity of states (majority and minority rule)

Answer 18

Majority rule: ‘Clean Slate rule’: started more after WW2 in regards to former colonies

Minority rule: “Continuity” A government that establishes itself and maintains a peaceful de facto administration need not to conform to previous constitution, and non-recognition of the government by other governments does not destroy the de facto status of the government.

Question 19

Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc. (U.S. Supreme Court)

Answer 19

Issue: Goldberg argues that several decrees of the TFSC (the entity established in Northern Cyprus by the Turkish military immediately after the 1974 invasion) divested the Church of title to the mosaics.

2 kinds of “de facto governments”

1. Is such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation. This kind of de facto government is treated as in most respects possessing rightful authority and its legislation is in general recognized
2. Is such as exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government. The validity of its acts, both against the parent State and its citizens or subjects, depends entirely upon its ultimate success if it succeed, and become recognized, its acts from the commencement of its existence are uphed as those of an independent nation

Question 20

Reference re Secession of Quebec (Supreme Court of Canada)

Answer 20

Issue: Does international law give the National Assembly, legislature of government of Quebec the right to effect the secession of Quebec from Canada unilaterally. In this regard, is there a right to self-determination under international law that would give the National Assembly, the legislature of government of Quebec the right to effect the secession of Quebec from Canada unilaterally.

“All peoples have the right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” International law grants the right to self-determination to “peoples.” Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. It is clear that “a people” may include only a portion of the population of an existing state; the reference to “people” does not necessarily mean the entirety of a state’s population.

Question 21

Difference between internal and external self-determination

Answer 21

“Internal” self-determination is a peoples pursuit of its political, economic, social and cultural development within the framework of an existing state

“External self determination is the establishment of a sovereign and independent state, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people

Question 22

Helsinki Final act

Answer 22

refers to peoples having the right to determine “their internal and external political status”, that statement is immediately followed by express recognition that the participating states will at all times act, as stated in the Helsinki Final Act, “in conformity with the purpose and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states.”

Question 23

3 situations that allow for the exercise of external self-determination

Answer 23

(1) Former Colonies
(2) where a people is oppressed, as for example under foreign military occupation
(3) where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.

In all 3 situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination

Question 24

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (ICJ advisory opinion)

Answer 24

Issue: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

In instances of illegality attached to declarations of independence, stem not from the unilateral character of the declarations, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law.

Question 25

4 types of jurisdiction for ICJ

Answer 25

(1) State in contentious proceedings
(2) Compulsory (paragraph 2 of article 36, states must recognize)
(3) Cases referred to it by parties
(4) Advisory opinion requests- questions brought by the security council or another specialized agency

Question 26

The Diplomatic and Consular Staff Case (Iran hostage)) (ICJ opinion)

Answer 26

Issue: Preliminary question of whether the ICJ has jurisdiction

Article 53 of the Statute requires the Court, before deciding in favor of an Applicant’s claim, to satisfy itself that it has jurisdiction, in accordance with Articles 36 and 37, empowering it to do so

Proprio Motu= Official act without a formal request

Question 27

Proprio motu

Answer 27

official act without a formal request

Question 28

Self judging provisions

Answer 28

States will typically stipulate that ICJ will not have jurisdiction over domestic matters, as determined by that state (U.S. Connally Amendment)

Question 29

Vandemburg amendment provided that the U.S. 36(2) declaration would not apply to disputes arising under a multilateral treaty, unless…

Answer 29

(1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specialty agrees to jurisdiction.

Question 30

Legal consequences of the Construction of a Wall in the Occupied Palesinian Territory (ICJ opinion)

Answer 30

Issue: Argued in this case that the adoption by the General Assembly of resolutions ES-10/14 was Ultra vires as not in accordance with Article 12

When seised of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be in the affirmative, there is any reason why it should decline to exercise any such jurisdiction

Given its responsibilities as the “principal judicial organ of the United Nations” (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. In accordance with its consistent jurisprudence, only “compelling reason” should lead the Court to refuse its opinion. (ICJ has always agreed to advisory requests)

Question 31

GATT Treaty

Answer 31

Part of the World-trade organization.

Goal of a more free economic system

Question 32

Doctrine of abus de droit

Answer 32

prohibits the abusive exercise of a state’s right and enjoins that whenever the assertion of a right “impinges on the field covered by a treaty obligation, it must be exercised bona fide, that is to say, reasonably

Question 33

Unjustified Discrimination (GATT)

Answer 33

It is not acceptalbe, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member’s territory, without taking into consideration different conditions which may occur in the territories of those other members

Question 34

Arbitrary discrimination

Answer 34

The provisions of Article X:3 of the GATT 1994 bear upon this matter. Rigorous compliance with the fundamental requirements of due process should be required in the application and administration of a measure which purports to be an exception to the treaty obligations of the Member imposing the measure and which effectively results in a suspension pro hac vice of the treaty rights of other Members.

Question 35

Shrimp Turtle Case

Answer 35

The task of interpreting and applying the chapeau is, hence, essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception under Article XX and the rights of the other Members under varying substantive provisions (e.g.,, Article XI) of the GATT 1994, so that neither of the competing rights will cancel out the other and thereby distort and nullify or impair the balance of rights and obligations constructed by the Members themselves in that Agreement.

Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus

Question 36

The Reparation Case (ICJ advisory opinion)

Answer 36

Issue: Does the UN possess international personality?

U.N. has international personality. In the event of an agent of the United Nation in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations

Question 37

NGO’s

Answer 37

Non-governmental organizations (NGOs) are created under municipal law rather than by interstate agreement

Although some NGOs have links to governments or receive government grants, most are private, not-for-profit entities, receiving all their support from individual members or private contributions

Question 38

Friends of the Earth Case (European Court of Justice)

Answer 38

Issue: Whether the action brought by Friends of the Earth ought not to be allowed on the basis of Article 10a of that directive

Where Member States lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, those detailed rules might not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness)

Question 39

Precautionary principle

Answer 39

when there is an issue about the applicability of environmental control must err on the side of administering environmental law

Question 40

The Nottebohm Case (ICJ)

Answer 40

Issue: Guatemala objected that Liechtenstein was not a state that could legitimately protect Nottebohm before the court

Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children…

‘Genuine link’ requirement for naturalization

Question 41

3 types of international courts

Answer 41

(1) Specialized Tribunal
(2) ICC
(3) Hybrid courts; mixes national and foreign judges on hybrid national/international criminal tribunals (example; military courts)

Question 42

International Criminal Court (ICC)

Answer 42

Based on the Rome statute, U.S. helped found but is not a member. Preferred policy of U.S. of bilateral treaties

U.S. is not a signatory, however, ICC relies upon Security Council, thereby allowing U.S. to exercise veto power. Problem from U.S. perspective is that disputes between states are not subject to security council and therefore no veto power

Question 43

What crimes are covered by ICC and the Rome Statute?

Answer 43

(1) Crimes against aggression (2) war crimes and (3) crimes against humanity

Question 44

The Barcelona Traction Case (ICJ)

Answer 44

Issue: The Spanish government contends that the Belgian nationality of the shareholders is not proven and that the trustee or the nominees must be regarded as the true shareholders in the case of the shares concerned

When a State admits into its territory foreing investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Domestic law generally governs corporate law: international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of State with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law. Consequently, in view of the relevance to the present case of the rights of the corporate entity and its shareholders under municipal law, the Courts must devote attention to the nature and interrelation of those rights.

Question 45

In international veil piercing, two particular situations must be studied

Answer 45

(1) the case of the company having ceased to exists and (2) the case of the company’s State lacking capacity to take action on its behalf (has country abandoned corporation?)

Question 46

Nuremberg Judgement

Answer 46

(1) Crimes Against Peace: Namely planning, preparation, initiation, or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:
(2) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deporation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity (exist after outbreak of conflict)
(3) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated

Question 47

What was the significant change in definition of crimes against international law after Nuremburg

Answer 47

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced

Question 48

The utility of International Criminal Courts

Answer 48

There seem to be four kinds of goals advanced for the creation of international criminal courts: (1) justice and punishment, (2) deterrence, (3) record-keeping, and (4) the progressive development of international law. So far, practice shows that achievement of the first two goals- justice/punishment and deterrence- has been spotty at best. However, the utility of international criminal tribunals has been surer of the other two aims- record keeping and the progressive development of international law.

Question 49

UN Human Rights Articles

Answer 49

Article 55: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56: All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Question 50

The European Convention for the Protection of Human Rights and Fundamental Freedoms

Answer 50

Was signed on November 4, 1950. This formed the basis for what would be the European Court of Human Rights.

Question 51

The Sunday Times Case (European Court of Human Rights)

Answer 51

Issue: regarded newspaper articles about a defective drug. Issue of article 10 of the European Convention. Balance of “maintaining the authority and impartiality of the judiciary” against the public interest of families to be properly informed. All about “proportionality”

Article 10 of the European Convention holds:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Question 52

The Soering Case (European Court of Human Rights)

Answer 52

Issue: regarded the extradition of an indivdiual prosecuted for murder where he would face the death penalty in the United States. Issue of article 3 of the European Convention. Clashing of article 3 (which doesn’t allow for death penalty) and article 2 which allows for execution following conviction of a crime for which the penalty is provided by law.

Case-law that a person’s deportation or extradition may give rise to an issue under Article 3 of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article

Question 53

“Later in time” principle

Answer 53

means that when an extradition treaty conflicts with congressional action, whichever occurs later in time prevails

Question 54

Extradition treaties are almost always qualified (i.e. have exceptions)

Answer 54

(1) Exception of double criminality (must be a crime in both states)
(2) Political crime exception

Question 55

The McCann Case (European Court of Human Rights)

Answer 55

Case illustrates an international legal rule made by a treaty, adjudicated by an international court, and enforced by a regional international legal system (case involved shooting of IRA)
Shooting was a violation of Article 2 of the convention.

Question 56

Truth and Reconciliation Commission (TRC)

Answer 56

Principal goals and the procedures to be followed: reconciliation, amnesty, reparation, and the search for truth. On the search for truth it declares that it is deemed necessary to make the findings known in order to prevent a repetition of such acts in future.

Question 57

The “Committee on Amnesty”

Answer 57

unlike the TRC, is a quasi judicial body. An amnesty committee considers applications for amnesty and may grant amnesty if it is satisfied that the applicant has committed an act constituting “a gross violation of human rights” and made “a full disclosure of all relevant facts,” and that the act to which the application relates is “an act associated with a political objective committed in the course of conflicts of the past.”

Question 58

The Eastern Greenland Case (Pre-WW2 court)

Answer 58

Issue: Whether the Ihlen declaration- even if not constituting a definitive recognition of Danish sovereignty- did not constitute an engagement obliging Norway to refrain from occupying any part of Greenland

In terms of unilateral declarations, see if there was a “bargain” or “estoppel + reliance” (think contracts)

Declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms,that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other states, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the judicial act by which the pronouncement by the state is made.

Question 59

pacta sunt servanda

Answer 59

agreements must be kept (and in good faith)

Question 60

Dualism v monism

Answer 60

Dualism refers to situations where entering into treaties may violate domestic law, but not international law.

Monism, what’s the difference? In this system, international law must be in accordance with domestic law (several EU countries follow this)

Question 61

“Objects and Purposes” (treaties)

Answer 61

Look at preamble of treaty

The object and purpose of a treaty is of central importance for several law of treaties issues, including treaty interpretation (Vienna convention arts. 31, 33), treaty modification (art. 40), suspension of treaty obligations (art. 58), material breach (art. 60)

Question 62

Rebus sic stantibus

Answer 62

Fundamental change in circumstance

applies to Vienna Convention article 61 (supervening impossibility of performance) and article 62 (fundamental change of circumstances) is way to get out of treaty performance (think contracts and impossibility)

Question 63

The reservations to the Genocide Convention Case (ICJ Ruling)

Answer 63

Issue: what kind of reservations may be made and what kind of objections may be taken to them.

a state which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention (case-by-case analysis)
If the answer to Question I is in the affirmative, what

if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention

if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider the reserving State is a party to the convention

Question 64

Eastern Airlines Inc. v. Floyd (U.S. Supreme Court)

Answer 64

Issue: Question of whether Article 17 of the Warsaw Convention allows recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury (airline near-crash case)

When interpreting a treaty, we ‘begin “with the text of the treaty and the context in which the written words are used.”’ “Other general rules of construction may be brought to bear on difficult or ambiguous passages.” Moreover, “treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.”

Question 65

CMS Gas Transmission Co. V Argentina (International Centre for Settlement of Investment Disputes ICSID decision)

Answer 65

Issue: involves economic crisis in Argentina. CMS asserts before the tribunal that Argentina had breached the provisions of Article II(2)(a) of the BIT according fair and equitable treatment to investments covered by the treaty. Argentina claims the existence of a state of necessity or state of emergency. Argentina invokes the existence of such a state under both customary international law and Article XI of the BIT

Rule for necessity under Article 25 of the Articles of the International Law Commission

(1) Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole
(2) In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity

Question 66

International Centre for Settlement of Investments Disputes (ICSID)

Answer 66

An organization founded by the world bank, originally to help restore economies post WW2.

Mixed arbitration as there is a private (company) and public (host country) party.

Question 67

“Calvo clauses”

Answer 67

hold that there isn’t an international investment standard, and rules of the country being invested into are used (pretty well done away with)

Question 68

ICSID awards

Answer 68

An annulment committee is the exclusive mechanism for reviewing ICSID awards. The drafters of the Convention allowed arbitral tribunal awards to be annulled only if an arbitral tribunal violated basic due process guidelines, such as operating in manifest excess of powers.

ICSID often makes awards, but look at 3 elements for international individual law

(1) Choice of law
(2) Jurisdiction
(3) Enforcement

Question 69

“No manifest excess of power”

Answer 69

key term regarding reach of tribunal of arbitration body

Question 70

Elements for Article 38 of Vienna Convention

Answer 70

duration, widespread acceptance, tradition, opinio juris (legal obligation)

Question 71

Opinio Juris

Answer 71

Required to do so by law or necessity.

Subjective element for customary international law; must show universal assent, or if lack of assent reason that this principle hasn’t been cited judicially.

Question 72

Jus Cogens

Answer 72

Compelling Norm

Cannot reject certain customary law

Question 73

The Pacquete Habana (U.S. Supreme Court Decision)

Answer 73

Issue: Whether, upon the facts appearing in the record, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain

Where there is no treaty, and no controlling (speaks to international law, i.e. fisherman example) executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct.

Question 74

The Asylum case (ICJ Decision)

Answer 74

Issue: Peru rejected Columbia’s assertion of diplomatic asylum. Insisting that the subject be given over to Peru for trial for military rebellion

The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party

I.C.J. Article 38 refers to international custom as “evidence of a general practice accepted as law.”

Question 75

Regional and Particular Custom

Answer 75

The more lasting contribution of the Asylum Case has been its proposition, though not proved by the practice in this case, that there can be a regional or particular rule of customary international law

Question 76

The Lotus Case (ICJ decision)

Answer 76

Issue: A collision occurred between the French mail steamer Lotus, proceeding to Constantinople, and the Turkish collier Box-Kourt, between five and six nautical miles. The court is asked to state whether or not the principles of international law prevent Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish Law

Rule: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of common aims. Restrictions upon the independence of State cannot therefore be presumed (Countervailing international law must be demonstrated)

Question 77

6 acceptable basis for jurisdiction in international manner

Answer 77

(1) Territoriality (occurs within nation) principle
(2) Nationality principle (even if outside nation, perpetrator)
(3) Objective territoriality/Effect doctrine (act has impact on nation looking to exercise jurisdiction)
(4) Passive personality (used as last resort; victim of act is citizen of sovereign looking to exercise jurisdiction)
(5) National security
(6) Universal jurisdiction (does not rely on any context with legal system at issue, so that, individuals such as terrorists may be prosecuted. Think human rights, tied in with erga omnes)

Question 78

The Texaco/Libya Arbitration (ICJ Arbitration)

Answer 78

Issue 1: Did the parties have the right to choose the law or the system of law which was to govern their contract

Although they are not be confused with treaties, contracts between States and private persons can, under certain conditions, come within the ambit of a particular and new branch of international law: the international law of contracts

Issue 2: The present state of international law and the resolutions concerning natural resources and wealth adopted by the United Nations

Distinguish between those provisions stating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected by certain representative groups of States and having nothing more than a de lege ferenda value only in the eyes of the States which have adopted them; as far as the others are concerned, the rejection of these same principles implies that they consider them as being contra legem. With respect to the former, which proclaim rules recognized by the community of nations, they do not create a custom but confirm one by formulating it and specifying its scope, thereby making it possible to determine whether or not one is confronted with a legal rule. AS has been noted by Ambassador Castaneda,” such resolutions do not create the law; they have a declaratory nature of noting what does exist.”

Question 79

de lege ferenda

Answer 79

What the law should be

Question 80

Contra Legem

Answer 80

Against the law

Question 81

The Alabama Arbitration (Public international Arbitration)

Answer 81

Issue: Whether the British government acted with due diligence in the performance of its neutral obligations during the U.S. civil war

The Alabama tribunal rules that though Britain had owed the United States a duty of “active due diligence” to prevent private parties from supplying the southern rebels, she had failed to observe her international obligations as a neutral state

The eventual success of the Alabama arbitration became an important popular demonstration that it was possible for powerful states to arbitrate important disputes and thereby avoid war

Question 82

The Rainbow Warrior Case (UN ruling)

Answer 82

Issue (First 1986 case): France and New Zealand asked the U.N. Secretary-General for an “equitable and principled” ruling in matters arising from the sinking of the Rainbow Warrior.
Issue (Second 1990 case): Concerns France’s decision to evacuate Mafart and Prieur from Hao to France before their three-year detention period had run

It would be illogical to issue the order requested by New Zealand, which is really an order for the cessation or discontinuance of a certain French conduct, rather than a restitutio. The reason is that this conduct, namely to keep the agents in Paris, is no longer unlawful, since the international obligation expired on 22 July 1989

Satisfaction in this sense can take and has taken various forms. Arangio-Ruoz (in his 1989 report for the International Law Commission on state responsibility) mentions regrets, punishment of the responsible individuals, safeguards against repetition, the payment of symbolic or nominal damages or of compensation on a broader basis, and a decision of an international tribunal declaring the unlawfulness of the State’s conduct.

Question 83

Pacta sunt servanda

Answer 83

treaties of agreements are binding

Question 84

The AM & S Case (European Court of Justice)

Answer 84

Issue: Production of documents that the European Community Commission required by an investigation pursuant to Article 14(1) of Council Regulation 17

The essential inquiry is, first, whether there is a principle of Community law existing independently of the regulation, and, secondly, whether the regulation does on a proper construction restrict the application of that principle

Question 85

United States v Smith (U.S. Supreme Court)

Answer 85

Issue: Argument that Congress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation

What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.

Question 86

Terra Nullius

Answer 86

Nobodys land

Question 87

contra bonos mores

Answer 87

against good morals

Question 88

Prosecutor v Furundzija (International Criminal Tribunal for the former Yugoslavia)

Answer 88

Erga Omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to is it on fulfilment of the obligation or in any case to call for the breach to be discontinued.

Peremptory norm or Jus Cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

In spite of possible national authorization by legislative or judicial bodies to violate the principle banning toruture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: “individuals have international duties which transcend the national obligations of obedience imposed by the individual State.”

Question 89

The Michael Domingues Case: Argument of the United States

Answer 89

Issue: Death penalty of minor in Nevada, goes against Interntional Covenant on Civil and Policial Rights (ICCPR). Raises issue whether a persistent objector may still be bound in customary international law and whether there is a jus cogens norm prohibiting the execution of juvenile offenders

A Jus Cogens norm holds the highest hierarchical position among all other international norms and principles.

On the other hand, there is erga omnes. Defined as norms that “articulate basic interests and needs as well as fundamental values of the international community as a whole.”

Question 90

Equitable Claim

Answer 90

The elementary principle of justice that requires us to look at the substance and not stick in the bark of the legal form

Although equity is not explicitly mentioned as a source of law in Article 38(1) of the Statute of the International Court of Justice, international lawyers and tribunals- including the ICJ itself- sometimes apply equity

Question 91

The Cayuga Indians Case

Answer 91

Issue: (1) The claim is that the Cayugas in Canada, who assert that they have kept up their tribal organization and undoubtedly have included in their number the principal personages of the tribe according to it soriginal organization, are the “Cayuga Nation” covenanters in the Treaty of 1795, and that as such they, or Great Britain on their behalf, should receive the whole amount of the annuity from 1810 to present. (2) In the alternative, that the Canadian Cayugas, as a part of the posterity of the original nation, and numerically the greater part, have a proportion of the annuity for the future and a proportion of the payments since 1810, to be ascertained by reference to the relative numbers in the United States and in Canada for the time being.

It is significant that the present treaty uses the phrase “principles of international law and equity.” When used in a general arbitration treaty, this can only mean to provide for the possibility of anomalous cases such as the present

An arbitral tribunal is justified in reaching a decision on universally recognized principles of justice where the terms of submission are silent as to the grounds of decision and even where the grounds of decision are expressed to be the “principles of international law.” He considers, however, that the appropriate formula is that “international law is to be applied with equity.”

Question 92

The Meuse Case/ continental shelf case (ICJ)

Answer 92

Issues: (1) What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 9 June 1965? (2) The Government of the Kingdom of Denmark and of the Federal Republic of Germany [and the Netherlands] shall delimit the continental shelf in the North Sea as between their countries by agreement in pursuance of the decision requested from the International Court of Justice

It must be concluded, therefore that under Article 38 of the ICJ Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply

In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested- namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights, if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional regime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form (exception is estoppel, by words or actions)

Question 93

Ex equa bono

Answer 93

open invitation to decide issue by equity

Found in ICJ 38, not yet used

Question 94

Hierarchy of Sources

Answer 94

The North Sea judgment provides an excellent resume of the sources of international law, beginning with treaties, moving to custom, and finishing with equity.

Question 95

Soft law

Answer 95

a written instrument that is not a treaty

Question 96

Jus in bello

Answer 96

Rules that govern conduct of hostilities.

international humanitarian law

asks how states and their armed forces ought to treat combatants, civilians, and prisoners during armed conflicts.

Question 97

“Hague Law”

Answer 97

is generally associated with the methods of conducing hostilities and permissible types of armaments

Question 98

1949 “Geneva Law”

Answer 98

focuses on protecting victims of armed conflict. The four Geneva Conventions of 1949, responses to the atrocities of World War 2, detail protections due: (1) the wounded and sick in armed forces in the field; (2) wounded, sick, and shipwrecked members of the armed forces at sea; (3) prisoners of war; and (4) civilians in times of war or armed forces

Question 99

Prosecutor v Tadic (Yugoslavian War Tribunal)

Answer 99

Issue: Appellant asserts that there did not exist a legally cognizable armed conflict- either international or internal- at the time and place that the alleged offences were committed

On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there

A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. (move from distinction between belligerent and insurgency)

Question 100

Lieber Code

Answer 100

American Civil War code that formed the basis for Jus in Bello

Question 101

Jus ad Bellum

Answer 101

Law pertaining to initiation of armed conflict

Traditional limitations on resort to force

Question 102

Geneva Convention Article 2 v Article 3, and 2 protocols

Answer 102

Article 2 states that convention applies outside of declared conflict, and applies to any armed conflict

Article 3 is referred to as “common article,” and fundamentally gives minimum protection

Protocol 1 discusses rules of conflict of international character
Protocol 2 speaks to internal conflict, not of an international character

Question 103

The Naulilaa Case (1928 special tribunal; Germany v Portugal)

Answer 103

Issue: An arbitral tribunal, composed of three Swiss arbitrators, was constituted to consider Portugal’s claim for the damages resulting from Germany’s attack

The first condition- sin qua non- of the right to take reprisals is a reason furnished by a prior act contrary to the law of nations

A reprisal is only unlawful when it has been preceded by an unsatisfied demand. The use of force is justified, indeed, only by its character of necessity

Question 104

Reprisals

Answer 104

A reprisal is a state act taken in response to another state’s internationally wrongful act. Reprisals would themselves be illegal acts, except for the prior violation by the other state. Reprisals need not necessarily involve the use of force

Question 105

retrosion

Answer 105

like a reprisal, is a form of self-help. A retorsion is an act that, though unfriendly, would have been legal even if not taken in response to another state’s action. For example, if one state cuts off long standing economic assistance to another state or branches a bilateral treaty, the adversely affected state might reply by withdrawing its ambassador from the first state

Question 106

The Caroline Dispute (Letter from U.S. diplomat)

Answer 106

Issue: British attack of Ship, that was in U.S. port, during the Canadian uprising against British occupation

Reprisal is not valid in this case, as U.S. advised its citizens against joining the insurrection (demand aspect). Also a question of U.S. state responsibility

British claim is one of self-defense

Caroline rule and “preemptive self-defense” is today seen in article 51 of the U.N. Charter

Question 107

3 exceptions to Use of Force in UN charter

Answer 107

(1) Article 2(4); “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations “
(2) Chapter 7; regards security council powers
(3) Article 51; Self defense and collective self defense

Question 108

The Certain Expenses Case (U.N. Advisory opinion)

Answer 108

Issue: Whether certain expenditures which were authorized by the General Assembly to cover the costs of the untied Nations operations in the Congo and of the operations of the United Nations Emergency Force in the Middle East, “constitutes expenses of the organization within the meaning of Article 17, paragraph 2, of the Charter of the United Nations.”

The Purposes of the United Nations are set forth in Article 1 of the Charter. The first two purposes as stated in paragraphs 1 and 2, may be summarily described as pointing to the goal of international peace and security and friendly relations. The third purpose is the achievement of economic, social, cultural and humanitarian goals and respect for human rights. The Fourth and last purpose is:” To be a center for harmonizing the actions of nations in the attainment of these common ends.”

When the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations

Question 109

UN Peacekeeper

Answer 109

No “peacekeeping” measure can be found expressly stated in the U.N. charter

Such power is found in Article 1 goal of international/peace and security. This allows for use of Article 17, paragraph 2 “expenses”, which are determined by the general assembly

Question 110

Suggested exceptions to the Prohibitions of Article 2(4)

Answer 110

Humanitarian intervention: On several occasions states have claimed the right to use force in “humanitarian intervention.” States have been reluctant to adopt this exception to article 2(4) formally, but the legal community has widely accepted that the Charter does not prohibit humanitarian intervention by use of force strictly limited to what is necessary to save lives.

Intervention to support self-determination: The suggestion that a state may intervene by force to help a people achieve “self-determination” in some circumstances has received some support. Neither article 2(4) of the Charter nor any other provision of international law forbids authentic revolution and the wars of independence. On various theories, many states have supported the right to intervene by force to help an entity achieve independence from colonial rule

Question 111

Concept of Right to Protect (R2P) has 3 elements

Answer 111

(1) Every state has a responsibility to protect residents (ergo omnes concept)
(2) If support cannot be fulfilled, U.N. intervention may act as support, but
(3) If responsibility and good faith of state fails, then and only then, may members of international community intervene

Question 112

Eight basic categories appear to have emerged in which one finds varying support for unilateral uses of force

Answer 112

(1) Self Defense, which has been construed quite broadly
(2) Self-determination and decolonization
(3) Humanitarian intervention by the military instrument to replace an elite in another states
(4) Uses of the military instrument within spheres of influence and critical defense zones
(5) Treaty-sanctioned interventions within the territory of another state
(6) Use of the military instrument for the gathering of evidence in international proceedings
(7) Use of the military instrument to enforce international judgements
(8) Counter-measures such as reprisals and retorsions

Question 113

There are generally three possible bases for the use of force

Answer 113

(1) Self defence (which may include collective self-defence);
(2) Exceptionally, to avert overwhelming humanitarian catastrophe; and
(3) Authorisation by the Security Council acting under Chapter VII of the UN Charter

Question 114

Force may be used in self-defense if…

Answer 114

there is an actual or imminent threat of an armed attack; the use of force must be necessary, i.e. the only means of averting an attack; and the force used must be proportionate.

Question 115

Hamdan v Rumsfeld (Osama bin laden body guard case)

Answer 115

Uses military code and Geneva Convention

Since Taliban was acting government of Afghanistan, a signatory to the Geneva convention, Hamdan would have article 2 protection. Being as he was al-qaeda, protections fall under article 3. (conflict not of an international character, includes civil war)

Court found military court violated the military code and the Geneva convention. Right to “regularly constituted court”

Question 116

UN Preamble

Answer 116

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED: To save succeeding generations from the scourge of war

Question 117

UN Article 96

Answer 117

1) The general assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question
2) Other organs of the United Nations and Specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities

Question 118

ICJ Article 36

Answer 118

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (compulsory jurisdiction)
   a. the interpretation of a treaty;
   b. any question of international law;
   c. the existence of any fact which, if established, would constitute a breach of an international obligation;
   d. the nature or extent of the reparation to be made for the breach of an international obligation.

Question 119

ICJ Article 37

Answer 119

Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

Question 120

ICJ Article 38

Answer 120

(1) The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations
d. Subject to the provisions of Article 59 (no stare decisis, use civil code) judicial decisions (international and domestic) and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto

Question 121

ICJ Article 53

Answer 121

1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.
2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

Question 122

ICJ 65

Answer 122

1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

Question 123

Vienna Article 31: general rule of interpretation

Answer 123

(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its Objects and Purposes. (Objects and purposes= teleological approach, i.e. don’t look at plain language, look at preamble)
(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes
a. Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty
b. Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty
3. There shall be taken into account, together with the context
a. Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions
b. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation
c. Any relevant rules of international law applicable in the relations between the parties
(3) A special meeting shall be given to a term if it is established that the parties so intended

Question 124

Vienna Article 33: interpretation of treaties authenticated in two or more languages

Answer 124

(1) When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail
(2) A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides for the parties so agree
(3) The terms of the treaty are presumed to have the same meaning in each authentic text
(4) Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted

Question 125

Vienna Article 34: Rules in a treaty becoming binding on third States through international custom

Answer 125

Nothing in articles 34 to 37 precludes a rule set forth in the treaty from becoming binding upon a third State as a customary rule of international law, recognized as such

Question 126

Vienna Article 58: Suspension of the operation of a multilateral treaty by agreement between certain of the parties only

Answer 126

(1) Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone: if
(a) The possibility of such a suspension is provided for by the treaty; or
(b) The suspension in question is not prohibited by the treaty; and
(i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) is not incompatible with the object and purpose of the treaty

(2) Unless in a case falling under paragraph 1(a) the treaty otherwise provides the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend

Question 127

Vienna Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach

Answer 127

(1) A material breach of a bilateral treaty by one of the parties entitled the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part

(2) A material breach of a multilateral treaty by one of the parties entitles:
a. The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either
(i) in the relations between themselves and the defaulting State, or
(ii) As between all the parties;
b. A party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting States;
c. Any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of this provision by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

(3) A material breach of a treaty, for the purposes of this article, consists in:
(a) A repudiation of the treaty not sanctioned by the present Convention; or
(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty

(4) The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach
(5) Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties

Question 128

Article 70: consequences of the termination of a treaty

Answer 128

(1) Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
(a) Releases the parties from any obligation further to perform the treaty;
(b) Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

(2) If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect

Question 129

UN Article 17

Answer 129

1. The General Assembly shall consider and approve the budget of the Organization.
2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.
3. The General Assembly shall consider and approve any financial and budgetary arrangements with specialized agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned.

Question 130

Declarative Theory of Statehood

Answer 130

A state’s existence is independent of recognition by other states

Question 131

Constitutive Theory of Statehood

Answer 131

An entity must be recognized as such by other states

Question 132

Lex Ferende

Answer 132

Law as it should be

Question 133

How does international law invoke a duty of Good Faith?

Answer 133

Article 2.2 of the UN Charter requires that all member states fulfill their duties under the Charter in good faith. Article 26 of the Vienna Convention on the Law of Treaties similarly requires that state fulfill their duties under treaties in good faith. Article 31(1) of the Vienna Convention extends that duty of good faith to treaty interpretation

Question 134

Under international law, soft law refers to

Answer 134

Quasi-legal instruments that do not have binding force

Question 135

How can soft law become hard law?

Answer 135

Soft law can “harden” into hard law either by widespread acceptance through the practice of states, which results in soft law attaining the status of customary law, or by express incorporation into the body of a treaty

Question 136

uti possidetis

Answer 136

Affirms former colonial boundaries as the borders of newly-independent States

Question 137

Res Nullius

Answer 137

Property of no one

Question 138

Res Communis

Answer 138

Common Possession

Question 139

Res Publica

Answer 139

Public Property

Question 140

Rebus Sic Stantibus

Answer 140

Fundamental Change in Circumstances

Question 141

UDHR

Answer 141

Universal Declaration of Human Rights (Soft Law)

Question 142

Peremptory Self-defense

Answer 142

Doctrine pushed by U.S. during invasion of Iraq in 2003. Goes father than “imminent” doctrine, and not recognized by other states

Question 143

Travaux Preparatoires

Answer 143

Preparatory Work

Question 144

Kellog-Braid Pact (Pre-U.N.)

Answer 144

is a 1928 international agreement in which signatory states promised not to use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them”. There were no mechanisms for enforcement.

Question 145

Collective Self-Defense

Answer 145

A state must declare itself to be the victim of an armed attack and it must request the assistance of the state or states purporting to exercise the right of collective self-defense.

Question 146

Ultra Vires

Answer 146

Acting or done beyond one’s legal power

Question 147

Paquete Habana

Answer 147

Case re U.S. capture of Cuban fishing ships during Spanish-American war