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PIL > Finals > Flashcards

Finals Flashcards

1
Q

Res nullius

A

An area legally susceptible to acquisition by states but is not yet placed under territorial sovereignty

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2
Q

Res communis

A

not capable of being placed under sovereignty

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3
Q

Sovereignty vs. jurisdiction

A

S - legal competence that a state enjoys over their territory

J - an accumulation of rights that a state enjoys

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4
Q

Loss of territory but no loss of sovereignty

A
  • Belligerent occupation of enemy territory
  • Inundation of a low-lying island
  • Relinquishment of effective control to non-state actors
  • Denationalization of its inhabitants
  • Loss of maritime zone or extraterritorial assets
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5
Q

Territorial sovereignty

A

Sovereignty in relation to a portion of the surface of the globe.

Belongs always to one or exceptionally, to several states to the exclusion of others (Palmas)

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6
Q

How to resolve a territorial dispute?

A

Examine which of the States possesses a title superior to that which the other State may have (Palmas)

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7
Q

Rule on title vs possession

A

Title prevails over possession

QLF: If title is equal, possession under claim of right matters

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8
Q

Critical date

A

When it must be shown that territorial sovereignty has continued to exist and did exist.

Look at actual display of State activities (Palmas)

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9
Q

Modes of acquisition

A

Occupation
Accretion
Prescription

Cession
Conquest

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10
Q

Rule on original and historic title

A

It’s recognized but it requires appropriate evidence in support

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11
Q

Rule on discovery

A

Gives inchoate title; but that cannot prevail over definite title (Palmas). Must be completed within a reasonable period by effective occupation.

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12
Q

Occupation

A

Condition: That the territory be res nullius

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13
Q

Effective occupation

A
  • In Private law, equivalent to possession.
  • Important is state activity and acts of administration.
  • Effective and continuous display of state authority
  • Offers certain guarantees to other states and their nationals
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14
Q

Continued display of authority

A

1) Intention and will to act as sovereign
2) Some actual exercise or display of such authority

Also take into account: the extent to which sovereignty is also claimed by some other power (Eastern Greenland)

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15
Q

Cession

A

Right to territory conferred by treaty

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16
Q

Renunciation (form of cession)

A

Recognition that another state has title

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17
Q

Prescription

A

The removal of defects in a putative title arising from usurpation of another’s sovereignty via the acquiescence of the former sovereign

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18
Q

Requirements for prescription

A

1) Possession must be exercised a titre de souverain
2) Possession is public, peaceful and uninterrupted
3) Possession must be persistent, not ephemeral

4) Tacit recognition manifested by unilateral conduct which the usurping party can interpret as consent

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19
Q

Principle of contiguity

A

Consider contiguity and geographical unity when the disputed territory was at times, barren, uninhabited, or uncharted.

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20
Q

Uti possidetis

A

“As you possess, so shall you possess”

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21
Q

Accretion

A

Gradual increase of territory through new geographical formations

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22
Q

Jurisdiction

A

A state’s competence under int’l law to regulate the conduct of natural and juridical persons (legislative, executive, and judicial)

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23
Q

Territorial Principle

A

Courts of the place where the crime was committed

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24
Q

Nationality Principle

A

Nationality of the person who committed the crime
- Sometimes limited to serious offenses due to overlapping jurisdiction with territorial base

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25
Q

Passive Personality Principle

A

Aliens may be punished for acts abroad harmful to nationals of the forum
- Helpful for int’l terrorism

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26
Q

Protective/Security Principle

A

Depends on the national interest injured by the offense
- When vital issues are threatened
- Affects internal/external security/other key interest

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27
Q

Effects Doctrine

A

Extraterritorial offence causes some harmful effect in the prescribing
state, without actually meeting the criteria of territorial jurisdiction or
representing an interest sufficiently vital to the internal or external
security of the state in question to justify invoking the protective
principle

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28
Q

Universal jurisdiction

A

Assertion of criminal jurisdiction by a state in the absence of any other generally recognized head of
prescriptive jurisdiction
- For crimes that are so heinous that every state has a legal interest in their repression

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29
Q

Effect of immunity

A

Stops the courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of cases in which a foreign state is a party

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30
Q

Rationals for state immunity

A

1) Immunity Rationae Materia
2) Immunity Rationae Personae

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31
Q

State immunity

A

Facilitates the performance of public functions by the state and
its representatives by preventing them from being sued or prosecuted in foreign courts.

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32
Q

Immunity Rationae Materia

A

Attaches to the official acts of State officials
(narrow range of acts, wider range of actors)

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33
Q

Restrictive theory of immunity

A

Immunity is only required with respect to transactions involving the exercise of governmental authority (acta jure imeprii) as distinct from commercial or other transactions which are not unique to the state (acta jure gestionis)

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34
Q

Immunity Rationae Personae

A

Immunities enjoyed by certain categories of State officials by virtue of their office.
(wide enough to cover official and private acts) (Arrest Warrant)

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35
Q

How to waive jurisdiction

A

1) Submitting to jurisdiction after the dispute has arisen
2) Prior written agreement
3) Institution of proceedings
4) Intervening or taking a step in the proceedings

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36
Q

Arrest Warrant

A

Through the duration of a Minister for Foreign Affairs’ office, they enjoy abroad full immunity from criminal jurisdiction and inviolability. So that the performance of their duties will not be hindered by any act of authority of another State.

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37
Q

Jurisdictional Immunities case

A

State practice (Judicial decisions) tells us that state immunity for acta jure imperii extends to civil proceedings for acts occasioning death, personal injury or damage to property committed by armed forces and other State organs in the conduct of armed conflict.

Affirmed by opinio juris found in national jurisprudence that says immunity is quired by CIL>

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38
Q

International responsibility

A

Covers the new legal relations which arise under IL by reason of the internationally wrongful act of a State

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39
Q

Elements of an internationally wrongful act of a State (Art. 2, ARSIWA)

A

Action or omission:
(a) is attributable to the State under IL; and
(b) it constitutes a breach of an int’l obligation of the State

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40
Q

Corfu channel

A

Mere fact of control exercised by a State over its territory does not equate to the fact that the State knew or ought to have known of any unlawful act perpetrated therein.

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41
Q

When is an act characterized as internationally wrongful? (Art. 3, ARSIWA)

A

Check international law

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42
Q

Conduct of a State organ (Art. 4, ARSIWA)

A
  1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial
    unit of the State.
  2. An organ includes any person or entity which has that status in accordance with the internal law of theState.
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43
Q

Indirect participation

A

State agents do not need to be direct perpetrators of the unlawful act to be responsible

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44
Q

Persons or entities exercising elements of governmental authority (Art. 5, ARSIWA)

A

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

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45
Q

“Governmental authority”

A

Check:
- content of the powers
- way the power was conferred on the entity
- purpose for which they are to be exercised
- extent to which the entity is accountable to government for their exercise

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46
Q

Conduct of organs placed at the disposal of a State by another State (Art. 6, ARSIWA)

A

The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

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47
Q

Excess of authority or contravention of instructions (Art. 7, ARSIWA)

A

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

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48
Q

Conduct directed or controlled by a State (Art. 8, ARSIWA)

A

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

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49
Q

Conduct in the absence of authorities (Art. 9, ARSIWA)

A

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of
authority.

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50
Q

Conduct of an insurrectional (Art. 10, ARSIWA)

A
  1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law.
  2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law.
  3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.
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51
Q

Conduct adopted by a state (Art. 11, ARSIWA)

A

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

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52
Q

Existence of a breach of an international obligation (Art. 12, ARSIWA)

A

There is a breach of an international obligation by a State when an act of that State is not in conformity withwhat is required of it by that obligation, regardless of its origin or character.

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53
Q

International obligation in force for a State (Art. 13, ARSIWA)

A

An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.

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54
Q

Extension in time of the breach of an int’l obligation (Art. 14)

A
  1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
  2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the
    international obligation.
  3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.
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55
Q

Breach consisting of a composite act (Art. 15)

A
  1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
  2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain
    not in conformity with the international obligation.
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56
Q

Circumstances precluding wrongfulness
CONSENT (Art. 20, ARSIWA)

A

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the
limits of that consent.

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57
Q

Valid consent

A
  • freely given
  • clearly established
  • actually expressed; not merely presumed
  • person who consents must be authorized to so on the state’s behalf
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58
Q

When can you given consent to the otherwise wrongful conduct?

A

In advance or at the time it is occurring

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59
Q

Circumstances precluding wrongfulness
SELF-DEFENSE (Art. 21)

A

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

  • Does NOT apply to IHL and non-derogable HR provisions
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60
Q

“Lawful”

A

Within the bounds applicable in international armed conflict, the principle of proportionality and necessity

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61
Q

Circumstances precluding wrongfulness
COUNTERMEASURES IN RESPECT OF AN INTERNATIONALLY WRONGFUL ACT (Art. 22)

A

The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken
against the latter State in accordance with chapter II of Part Three.

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62
Q

Circumstances precluding wrongfulness
FORCE MAJEURE (Art. 23)

A
  1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or
    of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.
  2. Paragraph 1 does not apply if:
    (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
    (b) the State has assumed the risk of that situation occurring.
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63
Q

“Irresistible”

A

A constraint which the State is unable to avoid or oppose by its own means

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64
Q

“Unforeseen”

A

Neither foreseen nor of an easily foreseeable kind

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65
Q

Material impossibility

A
  • Due to a natural or physical event, or human intervention, or some combo; or
  • Certain situations of duress/coercion involving force on the State
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66
Q

Circumstances precluding wrongfulness
Distress (Art. 24)

A
  1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of
    distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
  2. Paragraph 1 does not apply if:
    (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
    (b) the act in question is likely to create a comparable or greater peril.
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67
Q

When to apply distress rule (Art. 24)

A
  • Author is in a situation of peril (either personally or in relation to persons under his care)
  • Agent has no other reasonable way of saving life
  • Still acting voluntarily
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68
Q

Circumstances precluding wrongfulness
Necessity (Art. 25)

A
  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.
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69
Q

Necessity according to Gabcikovo-Nagymaros

A

A peril may be imminent as soon as it is established at the relevant point in time

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70
Q

Circumstances precluding wrongfulness
Compliance with jus cogens (Art. 26)

A

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

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71
Q

Circumstances precluding wrongfulness
Consequence of invoking a circumstance (Art. 27)

A

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
(b) the question of compensation for any material loss caused by the act in question.

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72
Q

Countermeasures

A

Conduct taken in derogation from a subsisting treaty obligation but justified as a necessary and proportionate response to an internationally wrongful act of the opposing State
- an ultimate remedy that an injured state may take after
cessation and reparation have failed.

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73
Q

Reprisal vs. countermeasure

A

Reprisal – Covers unlawful action, taken by way of self-help, in response to a breach. Limited to times of IAC; punitive

Countermeasure – Reprisals not associated with IAC; instrumental

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74
Q

Retorsion

A

Unfriendly but lawful acts by an aggrieved party against the wrongdoer

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75
Q

Sanctions

A

Used for measures taken in accordance with the constituent instrument of some IOs

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76
Q

Cessation

A

Basic obligation of compliance with international law that remains due in spite of anybreaches.

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77
Q

Reparation

A

All measures that may be expected from the responsible state over and above cessation (inc restitution, compensation and satisfaction)

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78
Q

Object and limits of countermeasures (Art. 49)

A
  1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two.
  2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
  3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
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79
Q

Obligations not affected by countermeasures

A
  1. Countermeasures shall not affect:
    (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the UN;
    (b) obligations for the protection of fundamental human rights;
    (c) obligations of a humanitarian character prohibiting reprisals;
    (d) other obligations under peremptory norms of general international law.
  2. A State taking countermeasures is not relieved from fulfilling its obligations:
    (a) under any dispute settlement procedure applicable between it and the responsible State;
    (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.
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80
Q

Proportionality (Art. 51)

A

Countermeasures must be commensurate with the injury suffered, taking into account
- the gravity of the internationally wrongful act and
- the rights in question

(also importance of the interest protected and seriousness of the breach)

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81
Q

Conditions relating to resort to countermeasures (Art. 52)

A
  1. Before taking countermeasures, an injured State shall:
    (a) call upon the responsible State, in accordance with article 43, to fulfill its obligations under Part Two;
    (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
  2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.
  3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:
    (a) the internationally wrongful act has ceased; and
    (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.
  4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith.
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82
Q

Measures taken by States other than an injured State (Art. 54)

A

This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the
obligation breached.

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83
Q

Legal consequences of IWA

A
  • Continued duty of the responsible State to perform the obligation breached (29)
  • Cease it (if continuing), to offer appropriate assurances of non-repetition if circumstances so require (30)
  • Full reparation for injury caused by the IWA (31)
  • Including damage, whether material or moral, caused by the IWA (31)
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84
Q

Forms of reparation (Art. 34)

A

Restitution, compensation and satisfaction

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85
Q

Restitution (Art. 35)

A

To re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
- not materially impossible
- doesn’t involve a burden out of all proportion to the benefit deriving from restitution instead of compensation

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86
Q

Forms of restitution

A
  • Material restoration
  • Juridical restitution
87
Q

Compensation (Art. 36)

A
  • Obligation to compensate for damage caused thereby, insofar as such damage is not made good by restitution
  • Covers any financially assessable damage (inc loss of profits)
88
Q

Satisfaction (Art. 37)

A

If cannot be made good by restitution/compensation

  • An acknowledgement of the breach, expression of regret, formal apology, or another appropriate modality
  • WON’T be out of proportion to the injury and MAY NOT take a form humiliating to the responsible State.
89
Q

Jus ad bellum

A

“right to resort to force”

90
Q

Article 2, UN Charter

A
  1. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
  2. 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.
91
Q

Legality of the threat of use of force case

A
  • For a threat to be lawful, the declared readiness of a State to use force must be a use of force in conformity with the Charter
92
Q

Nicaragua case

A
  • Assistance to rebels by providing weapons or logistical or other support can be a threat/use of force or amount to intervention
  • Arming and training of contras is threat/use of force
  • Mere supply of funds to the contras while an act of intervention, is not use of force
93
Q

Principle of non-intervention

A

Prohibited from intervening directly or indirectly in internal or external affairs of other States (Nicaragua)

94
Q

Force

A

armed force

95
Q

Exceptions to the prohibition on use of force

A
  1. Art. 42, UN Charter – SC if they consider measures in Art. 41 inadequate/have proved to be inadequate, may take action by air, sea or land forces as may be necessary to maintain/restore international peace and security
  2. Art. 43.1, UN Charter – All UN members shall make available to the SC, on its call and in accordance with a special agreement, armed forces, assistance and facilities inc. right of passage (for maintaining int’l peace and security)
  3. Art. 53.1, UN Charter – SC shall utilize such regional arrangements/agencies for enforcement action
  4. Art. 51, UN Charter – Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
96
Q

Armed attack (Nicaragua)

A

“the sending by or on behalf of a State of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular forces,

97
Q

Oil platforms case

A

Iran’s minelaying was not proven to be aimed specifically at the US and not proved to have been laid with the specific intention of harming that ship. Not an armed attack.

98
Q

Attack from non-state

A

Unless the non-state actor was under the effective control of a foreign state, can’t resort to Art. 51. (Nicaragua parallel)

  • But there’s SC resolutions recognizing right to self-defense against terrorist action
99
Q

Conditions of valid self-defense

A
  • necessity
  • proportionality
    (CIL, as per Legality of Nuclear Weapons)
100
Q

Necessity

A
  • No other option in the circumstances (Crawford)
101
Q

Proportionality

A

Size, duration and target of the response corresponds to the attack (Crawford)
- limited to the rejecting of the armed attack (Cassese)

102
Q

Collective self-defense

A
  • A state may invite another to assist it in self-defense (Armed activities)
  • Found in CIL (Nicaragua)
  • Requirement of a request from the victim state + State’s declaration that they were attacked (Nicaragua)
103
Q

Jurisdiction of the ICJ

A

Consider:
- personal capacity of the claimant to appear before the ICJ
- legal nature of the claim
- bases upon which the parties can be said to have consented to the jurisdiction

104
Q

Admissibility

A

Concerned with formal/material defects in the claim as formulated that if none of which existed, the Court would be seised of the case

105
Q

Optional clause (Compulsory jurisdiction)

A

Jurisdiction via unilateral declarations deposited with the Secn-Gen with the declarant being bound to accept jurisdiction vis a vis any other declarant to the extent the acceptances coincide.

On the basis of reciprocity, the lowest common factor in the 2 declaration is the basis of jurisdiction.

This means a respondent state can also take advantage of a reservation or condition in the declaration of the applicant state.

106
Q

Forum prorogatum (prorogated jurisdiction)

A

Jurisdiction is exercised over the entire dispute or to some aspeect of it as per an agreement (express or implied).

107
Q

Legal question

A

Framed in terms of law and raising problems of IL

108
Q

Can the ICJ refuse to give an opinion?

A

Only compelling reasons could lead it to refuse (Legality)

109
Q

The Wall case

A
  • Request for an advisory opinion is NOT a recommendation by the GA “with regard to a dispute or situation” which is prohibited by UN Charter
  • Lack of clarity in question wording won’t remove ICJ jurisdiction over the opinion
110
Q

Due diligence (Art. 3)

A

Obligation to take preventive or minimization measures is one of due diligence… not intended to guarantee that significant harm be totally prevented if it is not possible to do so.

It’s also a PRIMARY DUTY

111
Q

“at any event” (Art. 3, APTH)

A

priority in favor of duty of prevention

112
Q

“minimize” (Art. 3, APTH)

A

to pursue the aim of reducing to the LOWEST POINT THE POSSIBILITY OF HARM

113
Q

“All appropriate measures”

A
  • those actions and steps enumerated in the APTH
  • obligation to adopt and implement national legislation incorporating accepted int’l standards
114
Q

Sustainable development (Brundtland Commission)

A

Development that meets the needs of the present without compromising the ability of future generations to meet their own needs

  • seen as a principle with normative value (Judge in Gabcikovo-Nagymaros)
115
Q

Intergenerational Equity

A

Requires each generation to use and develop its natural and cultural heritage in such a manner that it can be passed on to future generations in no worse condition than it was received.

116
Q

Intra-generational equity

A

Addresses inequity within the existing economic system

117
Q

Is sustainable development GPL?

A

It’s been incorporated into the domestic law of some states

118
Q

Main effect of Principle 15

A

Effect is to lower the standard of proof of risk

119
Q

Approach vs. Principle

A

Principle: applies in situations of high uncertainty with a risk of irreversible harm entailing high costs

Approach: Appropriate where the level of uncertainty and potential costs are merely significant, and harm is less likely to be irreversible

120
Q

Role of science

A

Still needs some scientific basis fo predicting the possibility of harmful effects; can’t be based on mere conjecture without scientific backing

121
Q

Legal status of precautionary principle

A

Adopted in many multilateral instruments but not all states have consented in IL

122
Q

Other versions of the precautionary principle

A

“Uncertainty does not justify inaction”
“Uncertainty justifies action”
“Shifting the burden of proof”

123
Q

Environmental impact assessment (EIA)

A

Procedure for evaluating the likely impact of a proposed activity on the environment

124
Q

Distributive justice

A

Relevant dissimilarities warrant adjustment or special treatment

125
Q

Legal status of CBDR

A

Provides an equitable basis for cooperation between developed and developing states
- a framework principle

126
Q

IHL

A

Set of rules that seek to limit the humanitarian consequences of armed conflict and establish minimum standards of humanity in situations of armed conflict

127
Q

Treaties in IHL

A

4 Geneva Conventions
Additional Protocol 1
Weapon treaties

128
Q

Non-reciprocity of humanitarian obligations

A

Belligerents must respect IHL even if it is violated by their adversary

129
Q

Jus in bello vs. Jus ad bellum

A

Law governing armed conflict

Law governing use of inter-state force

130
Q

IHL obligations beyond armed conflict

A
  • obligations to refrain from developing, stockpiling, producing certain weapons
  • obligations of IHL after cessation of active hostilities until a political solution for their status has been found
131
Q

Armed conflict

A

Whenever recourse is had to armed force/belligerent occupation between States (IAC), or when protracted armed violence takes place between gov’t authorities and organized armed groups or between such groups (Non-IAC)

132
Q

Difference between IAC and NIAC

A
  • IAC occurs between 2 or more States; NIAC is between states and non-governmental armed groups, or between such groups only
  • Any use of force between states can be legitimated presumed to express belligerent intent and to create a situation of IAC; threshold of violence for a NIAC is significantly higher
133
Q

How to determine existence of IAC

A
  • Legal status of the belligerent parties
  • Nature of the confrontation between them
134
Q

Belligerent occupation

A

When 1 state invades another State and establishes military control over part or all of its territory.

135
Q

When does IAC end

A
  • Peace treaty or an equivalent agreement; or
  • Unilateral declaration/other unambiguous act expressing termination of belligerent intent (capitulation, declaration of surrender, or unconditional, permanent and complete withdrawal from previously contested territory)
  • Armed confrontation between the belligerent parties has come to a lasting end

WHAT DOESN’T TERMINATE AN IAC
- Cessation of hostilities, ceasefire or armistice. Only when taken in conjunction with other elements are such factors indicative of the belligerents’ intention to end armed conflict

136
Q

When does CA 3 apply

A
  • Armed conflict not of an international character occuring in the territory of one of the High Contracting Parties
  • doesn’t need to involve gov’t; can be between organized armed groups
137
Q

When do NIACs start

A

As soon as armed violence occurring between sufficiently organized parties reaches the required threshold of intensity

138
Q

When do NIACs end

A

“Until a peaceful settlement is achieved”

139
Q

Armed conflict subject to foreign intervention

A

“Internationalized” armed conflict
- State, coalition of States, intervening in a pre-existing non-IAC thereby becoming a co-belligerent party to that conflict

140
Q

State intervenes in support of the territorial government’s struggle against an insurgey

A

Still remains a NIAC

141
Q

State supports the insurgency against the territorial State

A

Becomes IAC

142
Q

Belligerent reprisal

A

An action that would otherwise be unlawful but that in exceptional cases is considered lawful

143
Q

Principle of distinction

A

Civilian population and individual citizens enjoy general protection against dangers arising from such operations

144
Q

Duty of precaution

A

To avoid, or in any event, minimize inflicting incidental death, injury and destruction against persons and property protected against direct attack

145
Q

What is prohibited by the principle of distinction

A
  • Direct attacks against civilians
  • Acts of terror
  • Indiscriminate attacks
  • Human shields
146
Q

Attacks

A

All acts of violence against the adversary whether in offense or in defense

147
Q

Acts of terror

A

Acts or threats of violence the primary purpose of which is to spread terror among the civilian population

148
Q

Indiscriminate attacks

A

Attacks which are of a nature to strike military objectives and civilians and civilian objects without distinction either because they are not or cannot be directed at a specific military objective or because their effects cannot be limited as required by IHL

149
Q

Human shields

A

Using the presence or directing the movement of the civilian population or individual citizens in order to attempt to shield military objectives from attack, or to shield, favor or impede military operations

150
Q

Rule on civilian participation in hostilities

A

GEN: Civilians are entitled to protection against direct attack

EXC: The duration of their direct participation in hostilities

151
Q

Hostilities

A

Collective recourse by belligerent parties to means and methods of warfare

152
Q

Effect of indirect participation of civilians

A

Participation may contribute to the general war effort but does not directly harm the enemy.

NO LOSS OF PROTECTION

153
Q

Direct participation

A

Specific hostile acts carried out as part of the conduct of hostilities

154
Q

Requisites for direct participation

A

1) Harm likely to result from the act is military in nature or involves death, injury or destruction (threshold of harm)
2) Direct causal relation between the act and the expected harm (direct causation)
3) Act must be an integral part of the hostilities; must aim to support one belligerent party to the detriment of another (belligerent nexus)

155
Q

Civilian objects

A

All objects not military objectives

156
Q

Military objectives

A
  • Those object which by location, nature, purpose or use, make an effective contribution to military action
  • their destruction, capture or neutralization would create a definite military advantage
  • advantage must be concrete and perceptible
157
Q

Principle of proportionality

A

Prohibits attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combo thereof, which would be EXCESSIVE in relation to the concrete and direct military advantage anticipated

158
Q

Principle of precaution

A
  • precaution in attack
  • precaution against the effects of attack
159
Q

Specially protected objects

A
  • Cultural property
  • Works and installations containing dangerous forces
  • Objects indispensable to the survival of the civilian population
  • Natural environment
160
Q

Cultural property

A

Any secular or religious property of great importance to the cultural heritage of all people

161
Q

Can the obligation to protect be derogated

A
  • In case of imperative military necessity AND
  • no feasible alternative available to obtain a similar military advantage
  • Still appropriate to give advance warning if circumstances permit
162
Q

When can you attack specially protected dangerous forces

A

If the military objective is used in regular, significant and direct support of military ops and if such attack is the only feasible way to terminate such support

163
Q

Obligation re natural environment

A

Protect the natural environment against “widespread, long-term and severe damage”

164
Q

Means of warfare

A

Rules prohibiting or regulating the development, possession and use of certain weapons

165
Q

Methods of warfare

A

Ways in which such weapons can be used or hostilities can be conducted

166
Q

Prohibited means of warfare

A
  • Weapons, projectiles and methods of a nature to cause superfluous injury or unnecessary suffering
  • Arms, projectiles or materials that cause unnecessary suffering
167
Q

Superfluous

A

Suffering with no military purpose, out of proportion to the military advantage sought, or there are available alternative means

168
Q

Prohibited weapons

A
  • Expanding bullets
  • Undetectable fragments
  • Booby-traps
  • Anti-personnel mines (absolute)
  • Blinding laser weapons
  • Poison or poisoned weapons
  • Chemical weapons
  • Riot-control agents
169
Q

Booby traps

A

“Any device or material designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act

170
Q

Landmines

A

Ammunition designed to be under or near the ground or other surface area meant to be exploded by the presence, proximity or contact of a person or a vehicle

171
Q

Anti-personnel mine

A

Mine designed to be exploded by the presence, proximity or contact of a person that will kill or injure 1 or more persons

172
Q

Incendiary weapon

A

Weapon or munition designed to set fire to objects or cause burn injuries to persons through flame, heat or a combo thereof, produced by a chemical reaction of a substance delivered on the target

173
Q

Blinding laser weapons

A

Weapons designed to cause permanent blindness

174
Q

Cluster munitions

A

Weapons dropped from aircraft, fired by artillery, missiles, and subsequently release large number of explosive submunitions
- generally free-falling and scatter over very wide areas

175
Q

Chemical weapons

A

Those designed for the delivery of toxic chemicals

176
Q

Martens Clause

A

protect populations and belligerents under principles of international law as they result from the laws of humanity and requirements of the public conscience

177
Q

Hors de combat

A
  • in the power of an adverse party
  • expresses an intention to surrender or is incapable of defending himself because of unconsciousness, shipwreck, wounds or sickness, and
  • abstains from any hostile act and doesn’t attempt to escape
178
Q

Denial of quarter

A

Prohibited to order that there will be no survivors when threatening an adversary or conducting hostilities on this basis

179
Q

Perfidy

A

Acts inviting the confidence of an adversary to lead him to believe that he is entitled to protection under rules of IL with intent to betray that confidence

180
Q

Examples of perfidy

A
  • Feigning an intent to negotiate under truce/surrender
  • Feigning incapacitation by wounds/sickness
  • Feigning civilian, non-combatant status
  • Feigning protected status by using UN signs or neutral State
181
Q

Ruses of war

A

Acts intended to mislead an adversary or induce him to act recklessly but which infringe no rule of IL and are not perfidious because they don’t invite the confidence of an adversary with respect to protection under that law

182
Q

Emblems of adverse/neutral parties

A

Prohibited.
- Also prohibited to use those of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operation

183
Q

Individual

A

Each person

184
Q

Subjects of IL

A
  • Capable of possessing international rights and duties
  • Capacity to maintain its rights by bringing int’l claims
185
Q

Diplomatic protection (ADP 1)

A

Invocation by a state thru diplomatic action/other means of peaceful settlement, of the responsibility of another state for an injury caused by an IWA of that State to a natural or legal person that is a national of the former state with a view to the implementation of such responsibility

186
Q

Diplomatic action

A

all lawful procedures employed to inform another state of its views and concerns (protest, request for inquiry, negotiations)

187
Q

Who has the right of diplomatic protection

A

State

188
Q

Barcelona Traction

A

State is the sole judge to decide wether its protection will be granted, to what extent and when it will cease

189
Q

State of nationality (ADP 4)

A

State whose nationality that person has acquired in accordance with the laws of that state

190
Q

State of nationality of a corporation (ADP 9)

A

GEN: State under whose law the corp was incorporated

EXC: If the corp is controlled by nationals of another State and has no substantial business activities in the State of incorp, and the seat of management and financial control are both located in another state, THAT STATE SHALL BE REGARDED AS THE STATE OF NATIONALITY

191
Q

Exhaustion of local remedies (ADP 14)

A

Obligation of injured person to exhaust all local remedies

192
Q

What remedies

A

Those that would result in a binding decision

193
Q

Indirect injury to state (ADP 14)

A

If the international claim/request for judgement is brought preponderantly on the basis of an injury to a national or other person, there is still an obligation to exhaust local remedies

194
Q

Preponderance test

A

Used if the injury is mixed; tribunal must decide whether the direct/indirect element is preponderant

195
Q

“But for” test

A

Would the claim have been brought were it not for the claim on behalf of the injured national?

If answer is NO, the claim is indirect –> local remedies must be exhausted

196
Q

When do local remedies need not be exhausted (ADP 15)

A

1) NO reasonably available local remedies; or local remedies provide no reasonable possibility of redress;
2) Undue delay in rem process attributable to the State alleged to be responsible;
3) No relevant connection between the injured person and State alleged to be responsible;
4) injured person is manifestly precluded from pursuing local remedies;
5) State alleged to be responsible has waived the requirement that local remedies be exhausted;

197
Q

Horizontal implementation

A

Positive duty to impose obligation on non-governmental entities not to breach the rights of others

198
Q

Vertical implementation

A

Duty to translate the ICCPR guarantees into domestic rights

199
Q

Due diligence

A

Requirement to take reasonable steps and exercise due diligence in preventing, deterring, investigating and punishing HR violations by private entities

Strict liability to prevent/remedy HR abuses by its own agents

200
Q

Progressive realization

A

Recognizes that the ability of states to comply with its obligation to realize the rights in ICESCR must be assessed in light of its maximum available resources

201
Q

Right to Self-determination

A

Collective right of “peoples” to determine their political status and freely pursue their ESC development

202
Q

Discrimination

A

Any distinction, exclusion, restriction or preference which is based on any ground such as race, color, se, language, religion, political or other opinion, national or social origin, property, birth or other status,

which has the purpose or effect of nullifying/impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms

203
Q

Differentiation

A

If such is reasonable and objective and aim is to achieve a purpose which is legitimate under the Covenant, then the distinction is ok

204
Q

Coverage of non-discrimination

A

Any field regulated and protected by public authorities.

205
Q

Indirect discrimination

A

A practice, rule, requirement or condition is neutral on its face but impacts disproportionately upon particular groups

206
Q

Direct discrimination

A

Involves less favourable treatment of the complainant than that of someone else in comparable circumstances

207
Q

Right to life

A

Supreme right

208
Q

“Arbitrary deprivation of life”

A

State has duty not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces

  • Can’t be taken in “unreasonable or disproportionate” circumstances
209
Q

Negligent state killings

A

Still a breach of Art. 6, UDHR

210
Q

Duty to investigate killings

A

State must investigate all killings, especially when they are perpetrated/suspected to be perpetrated by State agents.

Effect of failure or inadequate investigation: Breach of right

211
Q

Disappearances

A

States should take specific and effective measures to prevent the disappearance of individuals.

Establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons

212
Q

Death penalty

A

Only for the most serious of crimes; only pursuant to a final judgement rendered by a competent court

213
Q

Serious crimes

A

Killings, also perhaps intentional infliction of grievous bodily harm

PIL (1 decks)

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