Midterm section 1-3 Flashcards
International Law
rules, norms and processes that States and other actors feel obligation to obey and use to legitimize or delegitimize actions
Key components of IL
rules and norms implying certain standards of behaviours for states/actors to legitimize or delegitimize behavioural choices
Roles of international law
- to arrange for the cooperation most actors wish to have most of the time
- identifies the memberships of an international society of sovereign states
- mechanism to regulate the competing interests of the various actors and to carry their agreement into the future
- empowers weaker countries as they press for change against the will of the powerful
- instrument to promote justice
- Outlawry of war
Earliest sources of intl law
ethical principles; writings of publicists
Regimes
sets of rules and norms that states converge around and usually obey
Anarchy
system without a centralized government
Actors
Individuals and collective entities, such as states and international organizations which can make behavioural choices, whether lawful or unlawful
Rules
formal, often written expectations for behaviour
Norms
less formal customary expectations about appropriate behaviour that are frequently unwritten
Customary law
based on state practice, combined with an understanding that such practice has developed into an obligatory norm (opinio juris)
Jus Cogens norms
when a stable practice develops among sufficient broad numbers of states, and when large number of them view the practice as legally binding, and becomes recognized as a bonding principle of international law (derogation never allowed)
Realism approach
skeptical of intl law.
states interests = security and power (means of defence + expand influence).
Distribution of power independent of rule of law
Liberalism
Human nature essentially good, people are improvable. Social nature inherent to the character of intl relations.
Constructivism
People ‘construct’ the world through a social process of generating and sharing ideas. Believe in global society and global governance.
State sovereignty principle
horizontal system of legal equals, territorial basis (defined borders), exclusive use of violence within the state.
Anarchic system
no world government, no world institutions in charge of implementing the rules and enforcing and punishing actors, horizontal system with no superior authority.
Interpretation problem
a) Having someone to decide what the law is and how it should be applied to specific case.
b) How are we to interpret the law, will often provide self-serving application of the law.
Enforcement problem
a) Existence or not of an actor that has the power to force states or legal subjects to comply with their obligations Lack of mechanism to enforce law
Natural law
Law of nature rules the physical world & rules of morality should govern human affairs. Law = morality externally given to mankind. Duty is to understand these rules and apply them in practice. Human rights derive from natural law.
Legal Positivism
Law created by states’ will. Intl law is only what states agree to accept as legal obligations. Intl law = consent-based system of law.
Natural legal person
individual
Artificial legal person
actors created institutionally (states, IGOs, NGOs)
Legal personality
actor hood for legal purposes, you have rights and obligations
subjects of the law
legal persons who possess rights and/or obligations under international law
objects of the law
actors that receive the effects of international law, but do not possess legal personality
Sovereign state
political entity that has no political authority above it and where political authority is organized hierarchically (main subject of law, has legal personality)
Becoming a sovereign state
political process resulting in purely political fact which has legal consequences
Internal Dimensions of a state
Territorial basis, permanent population living inside this territory, central government that rules above this territory and population and exclusive ruler
External dimension of the state
Capacity to enter into relations with other states
Declaratory theory of recognition
being recognized by other states in the system is neither a necessary nor a sufficient condition to become a sovereign state (political entity is a state as a matter of fact, recognition of other states is acknowledgement of state but does not rely on it)
Constitutive theory of recognition
recognition is both necessary and sufficient for statehood to exist
Why membership of Palestine in the UN was never an issue
Membership has to be approved by Security Council. Requires 9 votes no P5 veto (US would veto as ally of Israel)
GA recognition of Palestine as a state
political recognition (no legal statement). legal consequences (can take part in the ICC, IMF, org reserved to states)
Political recognition of Palestine as a state
gives more legitimacy to Palestine in international bargaining. made it difficult for other states and org to deny status of Palestine as a state.
Legal consequences of recognition of Palestine as a state
admitting Palestine in other intl org (ICC) puts pressure over other intl org - Palestine accepted as a new party to the ICC.
Is Palestine a de facto state?
No central government - different authorities in West Bank, Gaza. No full control over the territory nor the population. Initial Occupation by Israel has become annexation (going along for decades).
Background Kosovo case
Kosovo used to be a province of Serbia with secessionist aspiration. Impossible to find peaceful solution. NATO bombed Serbia to force it to grant independence to Kosovo. UN Sec Council Res 1244 established interim regime to govern Kosovo - Serbia no longer had legitimate power over Kosovo.
Two questions on how to answer whether the unilateral Declaration of Independence of Kosovo in line with intl law
- Is the unilateral Declaration of Independence a violation of intl law in general?
- Did it violate more specific sources of intl law applicable her (Res 1244)?
Process to answering Kosovo question of unilateral independence
Author of unilateral independence declaration = Assembly of Kosovo. Was the author part of the constitutional framework of res 1244? No, not an organ of this framework, was acting as representative of people of Kosovo - author not bound by framework of UN interim regime. NO violation of the resolution 1244.
Consequences of Kosovo case
No legal consequences, only political. Many states began recognize this proclamation of independence - implied that Kosovo was a state (intl recognition).
IGO
organizations created by states to promote cooperation amongst them (UN is the most important)
Legal personality of IGOs
extent of legal personality is determined by the sets of duties and rights associated to them by their member states through the treaties that created these orgs. (depends on the context of the treaties that created them).
Examples of IGOs
- UN: 192 members. Inheritor of League of Nations. Traditions of the sovereign equality of states and respect for diplomacy and intl law. Best chance for replacing violent conflict in the world with the peaceful settlements for disputes.
- NATO: created in 1949 by Canada, Iceland, US, Western European States. Created to defend themselves against the rising spectre of the Soviet Union and its communist allies.
- EU: most developed IGO in the world. supranational body of 27 states. states pool their respective sovereignties creating a quasi-authority above the state level to make more effective policy decisions for the common good.
Non-governmental organizations (NGOs)
represent civil society. not subject of intl law but indirect participation in the creating of intl law - consultative status. participate in political process of crating of treaties.
legal personality of NGOs
NO substantive legal personality at the intl level (no rights or obligations)
Multinational Corporations (MNCs)
economic actors in pursuit of profits, and they operate at the heart of the economic globalization process. business enterprises with ownership, management, production, and sales activities located in several countries.
EU’s Corporate Social Responsibility
Europe has provided MNCs some basis for legal personality. EU’s Corporate Social Responsibility requirements appear to be so clear and firm that compliance by corporations is generally expected, as if they are “subjects” of law.
Background for Rainbow Warrior 1990 Case
Greenpeace ship protesting against nuclear tests carried out by France. Ship sunk by France. One member of crew was killed in harbour near Auckland. NZ reprisal?? France asked the release of the 2 French agents. NZ refused and asked govt of France for compensation for having violated intl law on NZ territory. No agreed solution. Case taken to the Arbitration Tribunal.
Arbitration Tribunal
parties commit to giving force of law to arbiter (Secretary General in rainbow warrior case). Issues are legally binding.
Decision of Court in Rainbow Warrior case.
France ordered to give NZ monetary compensation (symbolic gesture for violation of intl law). 2 French agents released into French custody but had to spend 3 years on French military base of Has before going back to France.
What caused the dispute in the Rainbow Warrior Case
French agents left military base before end of 3 years (violation of ruling). Took dispute back to arbitration tribunal.
France’s arguments in Rainbow Warrior Case.
Justified leaving of agents on force majeure and distress. France argued that 1st agent was ill and needed medication - justified France’s violation but agent had to return on the island (he did not). 2nd agent had a dying father and was pregnant - did not apply to distress + agent did not come back on the island.
Force Majeure
impossibility to comply with specific legally binding obligation - does not have capacity to comply
Distress
impossibility to comply because it would constitute a serious life threat
Court response to France’s arguments in Rainbow Warrior Case.
Force majeure does not apply, military base still existed so it was possible for France to comply. Distress justified France’s violation but agent had to return on the island (he did not). Argument of 2nd agent did not apply to distress and agent did not come back on the island.
NZ’s response in Rainbow Warrior case
NZ did not recognize distress, it justified non-compliance while circumstances existed but when it was over, did not apply anymore. 3 years on the island had to be completed by the agents, when they left the clock stopped.
Arbitration’s conclusion in Rainbow Warrior case
France violated intl law. No question of returning agents to military base (3 years period was over).
Legal personality of individuals
lacked until recently. they were protected as objects (property of states). 1949 Geneva Convention was the turning point.
Customary law
General practice accepted as law (behavioural and psychological component). Subjects of law are also creators (states).
How do states create intl law?
State behaviour (easy to observe) + opinio juris (acceptance of regular practice of behaviour as obligation) –> inferred consent
Problems of intl customs
Unwritten, rarely observable, imprecise rules
Intl customs can only change through violation
New pattern of behaviour cannot replace previous pattern, they are established over time. transitional period involves systematic violation of intl custom in force.
codification process
taking a rule of customary intl law and putting it in written form (creating a treaty, a legal agreement), creation of a new source of intl law.
Strategic value of vagueness
Writing down a rule of intl law - level of precision given to written rules depends on the negotiation between the parties of the treaty
How can we know whether a customary norm has been clearly established?
opinio juris and general practice
how can we know if opinio juris and general practice exists
depends on
1. number of states adhering
2. time fram
3. consistency of practice
Case relevant to number of states adhering
North Sea continental shelf ICJ 1969
Context for North Sea continental shelf case
Germany vs Netherlands and Denmark. Dispute over delimitation of continental shelf of the North Sea: how to make underwater delimitation.
Principles that can be applied to delimitation of continental shelf
Equidistance = drawing a line as a succession of points equidistant to both shores –> favours convex coastlines (Denmark and Netherlands)
Equity = result of the line must reflect the length of the coastline of both countries. –> favours concave coastlines (Germany)
*failed to reach an agreement and took the case to the ICJ
Denmark and Netherland’s arguments in the North Sea continental shelf case
They hoped to be favoured by using the 1958 Geneva Convention (which Germany is not part of). Because of no agreement regarding the principle that should be applied, equidistance is the obligatory principle to be applied (according to Geneva Convention). Germany obligated to consent with the Geneva Convention due to Estoppel. Treaties can generate new norms as customary law for non-treaty Staes (when ratified by sufficiently large number of states).
Germany’s arguments in Continental Shelf case
Germany never consented to treaty of Geneva Convention.
Response of the ICJ in the Continental Shelf case
In theory, accepts validity of Estoppel argument, but in this case, Estoppel doesn’t apply to Germany because not clear for the Court that Germany had consistently practiced a liable behaviour. In theory accepts the validity of the argument that treaties can generate new norms as customary law for non-treaty states, but does the Geneva Convention give rise to a rule of customary law reflecting Article 6 as obligatory principle to be applied? ICJ not convinced. Conclusion: ICJ replied in favour of Germany but did not impose any principle (determined on agreement 1971).
ICJ’s response to D&N regarding Article 6 of Geneva Convention
Article 6 admits reservations - possible to ratify treaty excluding certain articles which are not the core of the treaty. For endorsement of the treaty, a majority of the intl states should ratify this treaty. Only 40 states (25%) had ratified - not sufficient for ICJ. Only found 15 cases in which the convention (use of equidistance) was applied - not consistent enough.
Conclusions drawn from continental shelf case
- 25% of intl community is not enough to become a customary norm
- 15 cases in which a convention was applied is not enough to establish opinio juris.
Case relevant to time frame principle
Paquete Habana and Lola
Context of Paquete Habana and Lola case
Paquete Habana + Lola = 2 fishing vessels captured and kept by US navy in 1898. Owners of vessels (fishermen) argued that a rule existed exempting fishing vessels as prize of war –> brought a case to District Court of Florida (ruled in favour of US). Case reached Supreme Court –> stated that intl customs have to be taken as rules of law on the national level in the absence of domestic rule.
Court’s process in Paquete Habana and Lola case
Looked at civilized nations’ practices in which they engaged in (looking back to the 15th and 16th century) - found that civilized nations had acted along rule excluding fishing vessels. Then they focused more on the last century - found that since 1800s, they found no instance where the exception of capture had been denied (nearly perfect consistency). This was enough to conclude that this practice is a rule of customary law.
Answer to time frame question as conclude by Paquete Habana + Lola case
100 years of consistent practice is enough. The longer time, the better.
Traditional view on consistency of practice principle
customary intl law is universal, even states that consistently refuse to abide. (but regional or bilateral customs also exist).
Principle of persistent violator
Intl custom is going to be legally binding for all members of intl community except the persistent violator (principle maintaining consent as core of intl custom).
Estoppel
legal principle that bars a party from discontinuing a practice on which others have become reliable.
Scholars defending collective aspect of intl life
refuse the validity of the principle of persistent violator (well established intl customary law binds every single member of intl community)
Scholars defending consent based intl law
support the validity of the principle of persistent violator. Individual consent inferred from the consent of others - principle allows states not to be bound by a rule they have not agreed with (most governments value their sovereignty and embrace this principle).
Creation of new custom
can only happen by behaviour consistent with the new custom and contrary to the old custom (=period of systematic violation)
Chronological paradox
asks question of what exactly is combo of general practice and opinio juris -reflective of pre-existing norm or generative of new customary norm? Theoretical problem, does not affect application of customary law. Some scholars have agreed that this is a false paradox - combo is constitutive of intl customs, not cause and effect.
Jus cogens
peremptory norms: special norms with obligatory character. does not depend on the consent of the subject. is binding for all, no matter whether states accept or reject.
Consent in international agreement
consent is explicit
How do states become a party to a treaty
ratification of intl agreement
Treaty
international agreement concluded between states in written form and governed by international law
Difference between treaty law and customary law?
no formal hierarchy, but considers the time rule, “lex specialis” principle. Treaty has more precision, so they are more referred to than intl customs in disputes.
When two source of law are in conflict
the more recent ratified source of law prevails
If time rule isn’t sufficient for determine which source of law to use…
consider “lex specialis” principle
“Lex Specialis” principle
rule of intl law that is more specialized (created with purpose of resolving particular phenomenon) prevails over more general rule.
Example of “Lex Specialis” principle
clash between HR law and rules of war in context of armed conflict - the latter prevails as that part of intl is created particularly to regulate armed conflicts, whereas HR apply everywhere.
If neither time rule nor “Lex Specialis” help to provide clarity in which source of law to use
In practice treaties, because they have more precision and usually carry with them more authority than customary law. Though not formal criteria, applied in practice by states. Come as last resort.
Subsidiary sources in intl law
sources of a second order in the sense that they are typically applied when there are gaps or ambiguities left by customary and treaty law.
3 types of treaties
- Universal treaties = constitutional law of intl political system contains binding principles for all states & reflects customary intl law. Ex. UN charter - doesn’t reflect interest of particular state or context but rather aiming at intl system as a whole.
- General treaties = treaties that might become universal treaties at some point as adopted by all & rules contained them will become fundamental.
- Particular treaties (more common)= govern specific relation & situation between states as bilateral or multilateral treaties. Tend to regulate situation peculiar to group of states and don’t aspire to become universal treaties. Ex: border state arrangements.
Article 103 of UN Charter states:
If a treaty conflicts with the UN Charter, the UN charter will prevail (unique hierarchy in intl law)
First stage of treaty making
Negotiations: Bargaining to create new regulations between ratifiers (bilateral are easier to negotiate than multilateral). If no achievement, then there is no draft.
Second stage of treaty making
Signature: Once treaty draft arises after negotiations, draft signed by diplomatic state representative. Gives PROVISIONAL consent by the state = diplomatic representative have given provisional consent but not legally binding (no obligation to ratify after signing).
Third step of treaty making
Ratification: key for creation of intl obligation. By ratifying state is agreeing to be binds y the treaty as lawful obligations. Becomes a party to the treaty.
Reservations in a treaty
States ratify a treaty and commit to the treaty except reservation on some articles (reservations can’t at the core of the treaty). Reservations can be entered during preliminary stage of signature or ratification. Referring to specific article or interpretation.
Fourth step of treaty making
Entry into force: moment at which a particular provision in treaty becomes activated. Entry into force can arise automatically or after period as contained provisions in the treaty with special date, or with specific number of ratification.
Who ratifies a treaty?
Depends on the political regime of each state. US: need approval of executive + 2/3 of the senates (special majority), in addition to the President.
Fifth step of treaty making
Registration: Treaty has to be registered for it to be applicable in intl law.
What are the grounds on which treaties can be terminated?
- Prefixed terms.
- Unilateral withdrawal = all decide to take away consent to treaty. all parties must consent to withdrawal.
- Impossibility of performance = different from Force Majeure
Background of France vs New Zealand case (nuclear tests)
Nuclear tests by France near coast of NZ. Environmental impact (radiation). NZ took the case to ICJ - wanted ICJ to order France to stop nuclear testing in the region. NZ asked to declare that France had violated intl law carrying out these nuclear tests.
Free-riding in France vs New Zealand
other states waited for NZ and France to go to court which would issue a ruling to ban nuclear tests and benefit all the region (smaller states avoid costly process of going to court but still enjoyed benefits).
Court’s process in France v New Zealand case
Provisional measure = decision by a court to give an order before the Court even determines if there was a violation of the law or not. July 1973 - provisional measure (banning France from carrying out further atmospheric nuclear testing until Court reaches final decisions). October 1973 - UN GA adopted 3 resolutions on urgent need for suspension of tests (only France and China engaged in such tests). 1974 while Court was deliberating - unilateral announcement by France that it would not conduct any further nuclear tests.
Court’ decision in France v New Zealand case
Unilateral announcement of France generates binding obligation under intl law. No need for the Court to impose a rule (NZ already got binding rule it wanted but it wanted court to declare that France had violated intl law).
Why did Court reach the decision in France v New Zealand case
Basis of jurisdiction = optional clause of the Statute of the Court (clause that you can endorse by which you commit to respect the Court’s decision) - France endorsed this clause. France had a reservation - granted the court on any disputes EXCEPT issues concerning war or national security. France objected to the jurisdiction of the Court stating that testing of nuclear weapons linked to national security. Court responded that nuclear testing doesn’t involve national security, so the reservation doesn’t apply. Consequence - France withdrew from this optional clause in 1974.
Takeaway from France v. New Zealand case
Unilateral statement gives rise to legal obligation under intl law - very problematic because agents of governments make announcements all the time - legal obligation cannot be endorsed for each announcement or promise. Everything cannot become a legal obligation, this would lead to a huge rate of no-comply.
Context of 2018 Access to the Pacific Ocean case (Bolivia v Chile)
Bolivia used to have access to the Pacific. After War of Pacific, lost access to the Ocean. Land shared between Peru and Chile. Bolivia has tried to regain access to the Pacific Ocean (commercial benefits). According to Bolivia, Chile has a legal obligation to negotiate Bolivia’s access to Pacific. Court notes that there is a difference between obligation to negotiate and obligation to reach an agreement. Bolivia claimed both obligations to Chile. Court - was there an intl legal obligation undertaken by Chile to negotiate Bolivia’s access to the Pacific?
Court’s process in 2018 Access to the Pacific Ocean case (Bolivia v Chile)
Court looked at sources brought by Bolivia:
1. Exchanges of notes between Chile and Bolivia (diplomatic exchanges). Court could not see that Chile had undertaken an obligation to negotiate Bolivia’s access to the Pacific.
2. Both unilateral and multilateral acts.
3. Chile’s acquiesce - Bolivia argued that by not responding to something Bolivia has stated as a legal obligation, they agreed (could give rise to obligation but not in this case). Court found that a reaction was expected from Chile to trigger an international legal obligation (this was not the case).
4. Estoppel - in this case, Chile did not do anything that might generate Estoppel, no obligation can be derived via Estoppel.
5. “Legitimate expectation” - denied by court as source of intl law.
*other things listed by Bolivia could be sources of intl law but in that case, the obligation to negotiate that Bolivia was seeking, was not to be found. Court did not recognize that the obligation derived from the law sources.
Takeaway from 2018 Access to the Pacific Ocean case (Bolivia v Chile)
go beyond obvious forces of intl law and look at other int legal obligations.
