Finals Flashcards
Natural law?
Old view. Quasi-philisophical. Understood as universal and derived from reason.
Positivism?
Relies on positive sources of law. Man made rules in a legal system based on societal agreement.
The antelope case?
One must obey the mandate of law. Court acknowledged slavery wrong from natural law perspective but recognized that it was allowed under positive sources of law.
Liberty rights?
Rights that incur no obligations. You can do x but another can try to stop you.
Claim rights?
Rights creating obligations. You can do x and another has the duty to help you.
Ss lotus case?
Illustrates basic principle under international law. The residual principle of state freedom, states can do anything unless there is a positive rule forbidding it.
Just cogens norms?
Non-derogable norms of international law. States can never violate these and they do not depend on consent.
Michael Dominguez case?
Evaluate presence of a jus cogens norm by looking at number of states admitting it’s subject is wrong. Presence of norm is distinct from content of that norm. illustrates the possibility of regional custom as binding. lays out elements of custom. 1. concordant practice by many states in situation falling in domain of international relations 2. continuation or repetition of the practice over a considerable period of time 3. conception that the practice is required by or consistent with prevailing international law 4. general acquiescence in the practice by other states.
Armed activities in the territory of the Congo?
Court says that whether or not genocide is just cogens it’s jurisdiction is not. Illustrates that content of norm is different than existence of norm. Reinforces principle of consent for icj jurisdiction.
Obligations erga omnes
Obligations owed to all. Any party has standing to bring a case related to the violation of such whether or not the violation is against them. Most commonly in the form of erga omnes partes.
Article 38 sources?
38a: treaties
38b: custom
38c: general principles of law recognized by civilized nations
38d: judicial decisions and teachings of the most highly qualified publicists.
Treaties: generally?
Can codify existing obligations. Can create new obligations. Can become custom. Leaving typically governed by treaty itself. Unc 102 requires entry with registrar to invoke before un body.
VCLT 2(1)?
Defines a treaty: international agreement, between states, in written form, governed by international law
VCLT: 31?
For general interpretation of treaties use good faith, context, object and purpose, ordinary meaning. Context includes: subsequent agreement between parties, subsequent practice in applying the treaty, any relevant rules of international law applicable to relationship among parties.
VCLT: 32
Supplementary means of treaty interpretation: preparatory work of the treaty, circumstances of it’s conclusion. Can use if art 31 interpretation leaves meaning ambiguous or leads to manifestly absurd or unreasonable result.
How to resolve conflicts among treaties?
UNC 33 requires resolution by negotiation when applicable norms conflict. principle of harmonization, later in time rule, lex specialis over lex generalis, UN charter supremacy, just cogens, intertemporal doctrine, non retroactivity principle.
Principle of harmonization?
When many rules apply do everything possible to make them harmonious/compatible.
Later in time rule?
Between two treaties the later in time prevails unless the older doc says otherwise.
Lex specialis v lex generalis?
Lex specialis prevails.
Art. 103 UNC
UN charter supremacy. When treaties and charter conflict the charter wins.
Intertemporal doctrine?
Treaty can implicitly say whether the rules at the time it was passed apply or the current rules. If nothing is said then the judge decides.
VCLT 4
Non retroactivity principle. If a treaty entered into force prior to 1/27/1980 then the VCLT doesn’t apply to it. If after that date it does (provided state is party to VCLT). If a state joined VCLT later then that is the date used.
VCLT 18:
No way to terminate the VCLT
Treaty application?
Use:
Pacta sunt servanta and good faith VCLT 26
No relevance for international law in this context, VCLT 27
Presumption of territoriality, VCLT 29
Dueling treaties, VCLT 30
Treaty suspension?
When reason for treaty relationship no longer exists but there may be a time where it does again so obligations are out on hold
VCLT 65-67
Procedural rules for termination:
Can’t unilaterally assert invalidity, have to follow procedures and apply good faith
If treaty has procedures then those govern
If treaty doesn’t say then notify other party and give chance to respond, pursue dispute resolution if party objects, compulsory settlement if negotiation doesn’t work.
VCLT 61
Impossibility: where permanent destruction or disappearance of an object indispensable to the treaty isn’t caused by the party claiming impossibility then dissolution is possible.
VCLT 62
Change of circumstances change of circumstances:
Occured since treaties conclusion, change not foreseen by parties, on a matter essential to consent of parties to be bound and where effect radically transforms the extent of the obligations still to be performed
Reservations
Unilateral statements purporting to exclude legal effect of a treaty part. Classic rule is that no reservation is valid unless all contracting states agree. A more flexible rule is that they are allowed as long as not inconsistent with the object and purpose.
VCLT 20?
Acceptance of and objection to reservations:
a. If a treaty allows reservations then they are allowed
b. not allowed where limited number of states and object and purpose indicate treaty must be applied as a whole.
c. if treaty instrument of int’l org. then org must accept
d. otherwise, acceptance by contracting state, objection doesn’t prevent entry.
General Comment 24 of UNHRC?
states can make reservations to the genocide convention but not if that violates the object and purpose.
Unilateral declarations? general
ILC 2006 Guiding principles
* Did the state intend the declaration to have legal effect (“manifesting a will to be bound”) which may be deduced by examining the content of the declaration
* Was the statement made publicly by a senior state official with authority relevant to the subject matter of the declaration
Unilateral declarations? other considerations
o Declaration can be done orally or in written form
o Declaration can be addressed to one or a few States, or the international community as a whole
o Declarations cannot transgress jus cogens
o Declarations cannot be revoked arbitrarily
Legal status of eastern greenland (denmark v. norway)?
involves unilateral declarations. Important feature of declaration here is that the leader of Norway had declared that the territory would be left to Denmark.
Nuclear Test Case (Australia v. France)
Unilateral declaration valid because it was made publicly by a ranking official and with intent to be bound.
frontier dispute (Burkina Faso v. Mali)?
claim is that head of state said something so its binding on the nation. Court disagrees, makes distinction between statements made before press for political reasons and those made to have legal effect.
Bond v. U.S. (chemical weapon case)
looks to core purpose of treaty–preventing the use of chemical weapons in war. Ordinary meaning clearly goes against finding treaty applicable in this case. context shows that treaty intended to prevent previously seen horrors of chemical weapons.
Custom: elements?
objective element: state practice
Subjective element: Opinio Juris (action out of a sense that the action is required by law)
State practice?
may take a wide range of forms including physical and verbal acts. it may include inaction. Includes but is not limited to:
diplomatic acts and correspondence, conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference, conduct in connection with treaties, executive conduct, legislative and administrative acts, decisions of national courts.
Elements of state practice:
duration: the longer the rule has been in effect, the better
generallity: how many states have adopted this rule? most affected states are particularly relevant.
consistency/uniformity: no need for universal implementation, but the principle must be more than merely professed or aspirational.
Opinio Juris
distinguishes mere custom from customary international law. evidence of it can be found in areas such as public statements by ambassadors, state department officials, foreign ministry officials, government lawyers, and the like. statements will demonstrate that the government considers the action required by international law, rather than being discretionary.
forms of opinio juris
public statements by government/ legislative officials.
treaty commentary and Travaux Preparatoires (official records of negotiations leading up to a treaty)
conduct in connection with resolutions adopted by international orgs.
North Sea Continental Shelf (Germany v. Denmark and Netherlands)
dispute about sea boundary. Proportionality principle not custom because of insufficient evidence of state practice. Practice must be constant and uniform, must be widespread, objecting states make presence less clear, party practice matters less than non party, timing matters. Case also illustrates specially affected states.
Persistent objectors:
allows states to say they won’t be bound by a norm of CIL. Objection must be made at time custom was formed, nonexistence of state is not an excuse. Objection must be continuous. state must adopt a contrary practice.
principles of custom from north sea contintental shelf
to be custom acts concerned must amount to a settled practice and the acts must be carried out in a way as to be evidence of a belief that such practice is rendered obligatory by the existence of a rule of law requiring it.
Flores v. Peru Copper Corp.
unique to America. CIL only addresses things of mutual concern not of several concern. Mutual concerns involve state actions performed towards or with regard to the other. Several concerns are those to which states are separable and independently interested.
General principles of law
principles of domestic law recognized by civilized nations. general principles that are part of the architecture of the international legal system as distinct body of law. principles considered universal because they are found in every human society. principles of justice that flow from the nature of human beings as rational animals.
examples of general principles
equity
unclean hands
unjust enrichment, abuse of rights, estoppel
proportionality.
prosecutor v. erdomovic
argumes that duress as complete defense to murder is part of general principles. court examines civil, common law, and other legal systems and finds that duress is a general principle but not that duress as a complete defense for murder is.
judicial decisions and the writings of the most highly qualified publicists
these are subsidiary means of interpretation. Other means are binding these are not. includes decisions of international tribunals and of domestic tribunals when handling issues of international law. highly qualified publicists include any past or present ILC member, or past or present ICJ judge.
soft law
statements made by international law bodies are not law but can have certain types of legal effect. sometimes relying on another body that did the work on x can save a state a ton of work if they just adopt the conclusion that body reached.
Entities with special status
these meet some criterion for being a state and may be treated in a state like way by the international community: Vatican City, Taiwan, Palestine
When does the question of statehood arise
break up of existing state into several new ones. secession by part of existing state. merge and absorption of states. emergence from colonial status.
Montevideo convention requirements for statehood
permanent population, effective government,defined territory, capability of exercising international relations
Rights of states
teritorial integrity (prohibition on use of force UNC 2(4). sovereign equality: reciprocity (sovereign and diplomatic immunity UNC 2(1). general powers and extended privileges (legal personhood, join international orgs, standing, immunities, defenses, protection of diplomatic inviolability and state secrecy).
obligations of states
to comply with customary international law unless a persistent objector, due diligence (trans boundary harm, korfu channel), prohibition on use of force, prohibition on coercive intervention, obligations to respect and ensure human rights.
Theories of recognition
constitutive theory of recognition: other states constitute the new state through their recognition. Declarative theory of recognition: a state exists when it declares that it exists and acts consistently with that declaration. Most of international law is declarative and relies on objective tests.
types of recognition
opening of diplomatic relations, allowing into the UN, making a formal statement of recognition. cannot be revoked.
where is recognition prohibited?
A ch 7 resolution can prohibit UN members from recognizing a state if that state is formed through unlawful use of force or on the basis of racial discrimination.
Self determination of peoples
a general principle of International law. its a right exercised by people within the framework of an existing state and with respect to those states territorial integrity. Recognized in UNC art 1. peoples have the right to freely determine their political status freely pursue policies of economic social and cultural nature.
UNGA resolution 2625
this is custom. describes the contexts in which we recognize external self-determination rights. 1. decolonization 2. foreign occupation 3. political participation, remedial secession, and consent of the parent (recognized where a people is oppressed, denied internal self-determination and facing fundamental human rights violations.) 4. election interference.
right to unilateral secession
no specific right in international law. under the lotus presumption the norm is territorial integrity. limited circumstances where right is recognized are for 1. colonial people 2. occupation by a foreign power 3. possibility where right is blocked internally.
in re secession of quebec
deals with right to unilateral secession. Court outlines 3 situations where it may be appropriate. 1. colonial people 2. occupation by a foreign power 3. potentially where the right to self-determine is blocked internally.
what counts as a people?
hard to pin down, can rely on extra-legal tools, whether the group in question self-identifies as a people, shared commonalities, as a threshold matter, whether the group has a common language and culture.
when is a successor state the same state for the purposes of prior obligations?
often made a prerequisite of recognition
3 doctrines for recognition of foreign governments
- tinocco test: does the government have effective control over the state. if it does then recognize it (most common test.)
- tobar doctrine: recognize if the government is democratically legitimate
- estrada doctrine: forego recognition, recognize states only and not governments.
Treaty invalidity:
was the treaty impermissible from the start? jus cogens, coercion/duress?
separability of treaty terms
VCLT 44(3): if the ground for invalidity relates solely to particular clauses, it may be invoked only with respect to those clauses where 1. the clauses are seprable with regard to their application 2. appears from treaty that acceptance of those clauses not essential to intent of parties to be bound. 3. continued performance of the remainder of the treaty would not be unjust.
Procedure for voiding/terminating/suspending
state must notify other state of claim including reasons. if state notified doesn’t react within three months then the state may declare treaty invalid/terminated/suspended. if state objects then must pursue dispute resolution. If not resolved after 12 months then compulsory dispute settlement.
Invalidity of treaties: VCLT provisions
46: provisions of internal law regarding competence to conclude treaties.
47: specific restrictions on authority to express the consent of a state
48: error
49: fraud
50: corruption of a representative of a state
51: coercion of a representative of a state
52: coercion of a state by the threat or use of force
53: treaties conflicting with a peremptory norm of general international law.
VCLT articles on termination and suspension of treaties
54: by treaty terms or consent.
56: denunciation of or withdrawal from a treaty not addressing that.
57: suspension of a treaty under its terms or by consent
58: suspension of the operation of a multilateral treaty by agreement between certain of the parties only
59: termination by later treaty
60: termination/suspension as a consequence of breach
61: impossibility of performance
62: fundamental change of circumstances
self-executing v. non self-executing treaty
SE is one that automatically becomes enforceable in the domestic legal system
NSE is one that contemplates further domestic legislation such as implementing legislation in order to become binding and enforceable law in the domestic legal system.
tell difference by looking to intent of parties at signing. difference doesn’t change validity under international law. distinction most significant in dualist legal systems.
additional (not montevideo) requirements to be a state
comitment to human rights and rule of law, constitution of the entity on a democratic basis, commitment to protections for ethnic and national minorities located in it territory, acceptance of existing international boundaries, acceptance of major disarmament and non proliferation norms, entity’s commitment to pacific settlement of disputes.
Analyzing acquisition of territory
determine critical date. examine modes of teritorial aquisition
Critical date:
whoever has title at the critical date retains title, the critical date is when parties realize they are in a dispute
modes of territorial acquisition
discovery, effective occupation, conquest/subjugation/anexation, prescription, succession, accretion
Island of palmas case
Netherlands kept the land because it had prescriptive title which displaced spains title by discovery
Uti Possidetis Juris
SO that you might rightfully possess: when a colonizer leaves, boundaries between states that the colonizer drew are not redrawn. This is about preserving stability.
Effect of a state acquiring territory: UNGA resolution 2625 (which is custom)
refrain from use of force, settle disputes by peaceful means, don’t intervene in other states domestic affairs, cooperate in accordance with the UN charter, equal rights of self determination, Sovereign equality of states, good faith.
