Key Concepts Flashcards
Jus Cogens (Peremptory Norms)
Definition: Norms so fundamental that no derogation is permitted (EX. Prohibition on genocide, slavery, torture). Legal Basis: VCLT article 53, treaties conflicting with jus cogent norms are void, reflecting their superior legal status -remains unclear about the legal consequences for violations beyond treaty invalidation. Challenges: Lack of clarity on what constitutes Jus Cogens because Jus Cogent is not a source of International Law. Instead, Jus Cogens refers to a special quality of certain norms with International Law. These norms are of higher authority, meaning they cannot be violated or altered by agreements between states. Essentially, Jus Cogens norms are preemptory principles that override other sources of international law but that are not themselves a source.
Montevideo Criteria/ Statehood
Statehood refers to the status of being a recognized, independent political entity. A state must have: Permanant population: No size requirement. Defined territory: Disputed borders are acceptable if there is control over an area. Government: Control and legal independence. Capacity for International Relations: Recoginition by other states solidifies statehood. Issues: Criteria are minimalistic and do not address questions like democratic governance or justice. (Question of ineffective government or why not specify what type, democratic etc shows how IL: lowest common denominator to agree on something) recognition and statehood- more about politics and state interests.
Recognition of States vs. Governments
A state is a legal entity, while a government represents it. Non recognition of a government (example Taliban in Afghanistan) Does not imply non-recognition of the state.
Recognition of States vs Governments : Declaratory view
Recognition of Statehood is merely a declaration of an already existing fact.
Recognition of States vs. Governments: Constitutive View
Recognition is necessary for statehood, though this view is criticized for being arbitrary and influenced by powerful state interests. States decided whether to recognize a new entity often based on political interests ( Palastine Vs US, Russia Vs Kosovo, China vs Taiwan). UN membership doesn’t guarantee recognition: Joining the UN doesn’t mean all member states recognize a new entity as a state. (Some countries may vote for an entity’s admission without recognizing it as a state (example- the case of Palestine’s non-member observer status) Some states- deny the entity’s statehood to deny its political legitimacy. For example Arab states refuse to recognize Israel politically, even though they acknowledge its factual existence as a state.
Legal Personality
Entities with legal personalities can have rights and obligations under IL. States: Primary subjects (for example sovereignty, treaty participation). Non State Actors : Includes individuals (ex. ICC prosecutions), International organizations (UN) and corporations (under investment law) (depends on recognition or delegation by the states)
Sovereign Immunity and Jurisdiction
Territorial jurisdiction: States have full jurisdiction over their territory, but they must refrain from exercising jurisdiction over foreign states or representatives due to sovereign immunity. Protects foreign states and representatives from the jurisdiction of other states’ courts. Grounded in customary law. Ratione personae: Full immunity for senior officials (heads of states) while in office covering all actions.
Self Determination
The right to self determination is primarily internal, allowing cultural and linguistic expression, but stops short of granting independence. Enshrined in Article 1 of UN charter. Post WWII impact: Key to Decolonization, resulting in a surge of recognized states. Tensions: Cases like Kosovo and Palestine highlight conflicts between self-determination, international stability and state interests.
self determination and succession
IL recognizes the right to self determination, not the right to succession. States avoid agreeing to a right secession due to its potential to destabilize borders, especially in regions with colonial-era boundaries dividing ethnic groups. Secession is highly controversial and rare, typically limited to cases of decolonization.
Sovereignty
Sovereignty is central to IL, particularly in treaties and international organizations, where states consent to rules and agreements. The ICC treaty for example saw 124 states agreeing but 69 rejecting, highlighting the role of state consent in shaping international norms. While sovereignty is crucial in creating rules, its role in enforcement is more complex. Enforcement often relies on state actions, such as sanctions or counter measures. For instance, Western Sanctions against Russia after the Ukraine invasion reflect states’ choices to respond to violations of international law, demonstrating sovereignty in action but also the limits of international enforcement.
Ways sovereignty can express itself
Sovereignty can express itself through many ways -through a reservation in a treaty- persistent objector in customary in International customary law. Leaving a treaty. In 1945 many states had a broad view of sovereignty as human rights had not yet gained the prominence they hold today.
Ratione Personae
Immunity that protects Heads of State from prosecution in foreign courts while they are in office, regardless of whether their actions are official or private (as seen in the ICJ’s ruling in DRC vs. Belgium) Ratione materiae immunity applies after they leave office, shielding them from prosecution for actions taken in their official capacity while in office. The question arises whether rationae materiae immunity applies in the case of the ICC.
Exceptions to immunity
Historically, exceptions to immunity have been made for serious human rights violations, such as war crimes and crimes against humanity. These exceptions were recognized in international tribunals like the Nuremberg Trials, the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda). These exceptions often reflect political pressure to address war crimes and promote peace. In the context of the ICC, such immunity exceptions might apply, particularly for crimes like war crimes and crimes against humanity.
