Midterm sections 4-6 Flashcards
Adjudication
Solving dispute relying on law, by judicial means
- It is the application of the facts and international law to the case
Arbitration
ad hoc authority created for a one-time use (specifically for the dispute) issuing legally binding decisions
Examples of Arbitration
Yugoslavia, Rwanda, Nuremberg, Tokyo
What is the Consistency problem of interpreting international law?
- same treaty interpreted differently between different tribunals or courts
- However inconsistencies rarely arise because of informal links between tribunals and courts
Who are the interpreters of the law?
tribunals and law
What is the Permanent Court of Arbitration?
-1st global mechanism for judicial settlement of disputes
-Pool of potential arbitrators that states could turn to
- Court would coordinate with states the arbitration of disputes
When did Arbitration loose its relevance?
After the implementation of Permanent Court
What was the purpose of the Permanent Court of International Justice
Hear contentious cases between states and give advisory opinions on judicial questions
Who makes up the ICJ and who is it for
- 15 judges elected by General Assembly of the UN
-Hear disputes from States and NGOs
Who can bring a case to the ICJ
Parties to the statute of the court
How To Become Member of ICJ
-By becoming member of the UN
-For non-UN members, by ratifying the Statute of the Court as a separate treaty
What determines the jurisdiction of the Court
Consent- states consent to the court to hear cases involving them
How do states give consent to the court
-Optional Clause (Article 36)
-Core-by-core basis
-compromissory clause
What is Article 36
-Optional Clause
-states can endorse to give the Court jurisdiction over any case that may arise in the future in which they are involved
What is the limitation of Article 36?
-Has to be subject to reciprocity (both parties have to endorse optional clause)
What is the Compromissory Clause?
-Any dispute relating to the interpretation or application of the treaty in question may be referred to the Court unilaterally by any party to the treaty
-When dispute arises in the future, parties undertake obligation to consult ICJ
-Very limited jurisdiction
What is Article 39?
States legally obligated to comply with the ICJ Court Decisions
What was the context of Yugoslavia vs Canada & US
-Brought to court by Yugoslavia
-Denouncing NATO’s bombing of Serbia
-Against NATO (mostly Canada and US)
-Asked court to provide provisional measure
–> US stop bombing territory
–> Refrain use of force
-Court had to establish case jurisdiction
-Court did not have jurisdiction
–> denied Serbia’s request for a provisional measure
What was Yugoslavia’s case against the US?
-Yugoslavia argued that bombings = violation of Genocide Convention–> Compromissory clause
-Article 9: compromissory clause states that if a dispute arises the parties undertake the commitment to take that dispute to the ICJ for adjudication
What was the Court’s process for determining lack of jurisdiction in US vs Yugoslavia?
-US had not given consent to the Court’s jurisdiction:
-Ratified the Genocide Convention but had placed a reservation on Article 9
–> Any dispute brought to Court
-US would have to give explicit consent for specific case
What Was the Conclusion of the Yugoslavia vs US Case?
-Lack of Jurisdiction
-Court Dropped the Case
What would have happened if the Court had assessed the Yugoslavia vs US case’s merit?
-only applicable law was Genocide convention
-only basis of jurisdiction was compromissory clause contained in Genocide Convention
-US had not violated Genocide Convention
-US had violated UN Charter but was not applicable by the court in this case
What is the genocide convention?
-Establishes obligation to take measures to prevent and to punish the crime of genocide,
–>enacting relevant legislation
–> punishing perpetrators
Did the US violate the Genocide Convention in the Yugoslavia case?
-certainly not, one of the conditions of genocide is intent to destroy a whole or in part a protected group
–> (national, regional, ethnic, religious group)
–> No intent of the US
What were the 2 Bases of jurisdiction in the Yugoslavia vs Canada case?
Comp Clause Article 9:
–> Genocide Convention- Canada had no reservation on the article
Optional Clause:
–> Statute of the Court (both Yugoslavia and Canada had endorsed and authorized the Court to apply any international law that applies to the case)
Why did the Court lack jurisdiction in the Canada vs Yugoslavia case?
-Yugoslavia’s UN membership was suspended in 1992 so they didn’t have access to the court
-Unclear whether Yugoslavia was a member of the UN or a party of the statute of the Court
-Yugoslavia was not a party of the Court in 1999 and therefore have no right to bring case to the ICJ
Why was Yugoslavia’s UN membership suspended?
The Socialist Federal Republic (SFRY) of Yugoslavia’s illegal actions of ethnic was in conflict of independence of former Yugoslavia
Why was Yugoslavia’s membership in the UN contentious in 1999?
-Had never ratified the statue of the ICJ
-Court found that in 2000, the new government of Yugoslavia had applied for UN membership and got it- therefore not member in 1999
What does CERD stand for?
Committee on the Elimination of Racial Discrimination
What is the context of the case of Georgia vs Russia?
-2 areas of disputed sovereignty:
–> S Ossetia and Abkhazia
–> Was was resolved in Akhazia but not in Ossetia
-War breaks out between Georgia and Russia over control of S Ossetia
Who brought the case to the ICJ in the Russia vs Georgia Case?
Georgia in 2008
What article of the ICJ did Russia violate in the case of Russia against Georgia?
-Court had jurisdiction over:
–> Article 2 of the CERD: compromissory clause
–> But there was conditionality to be activated according to Article 22
What is the condition of Article 22?
-Any dispute between parties to the convention which is not settled by negotiation or the procedure established in the convention
-Important part is need for negotiation
–> parties involved in the dispute must have intended to fight a settlement in the dispute
What were the Court’s findings in Georgia vs Russia?
-There was no dispute between Georgia and Russia at the time of the case
–> enough to say Article 22 doesn’t apply
-True that no dispute on the matter of racial discrimination before 2008
–> at the Court didn’t previously have jurisdiction in the 90s
-After the war started in August 2008: issue of ethnic cleansing had been raised by Georgia in diplomatic exchanges with Russia
-If the dispute was settled, it would not make sense to even consider that dispute in the first place
-Court found that dispute condition was met but Georgia never tried to settle the dispute
–> Article 22 could not be activated
What is the context of the East Timor case?
-East Timor Portuguese colony until 1975 independence
-Indonesia invaded and established De Facto control- 25 years
-1999 Indonesia relinquished control- Same time as NATO bombing Kosovo
-2002 becomes UN member
What was the main issue of the East Timor case?
-Treaty signed to delimit the continental shelf of East Timor, by Australia and Indonesia
-Problem of the Treaty:
–> Australia’s recognition of Indonesia rule over East Timor
–> Denies Portugal’s authority and citizen’s right to self-determination
What were the Court proceeding in the East Timor case?
-Portugal brought case against Australia to ICJ
-Article 38: Optional clause endorsed by both Portugal and Australia
–> Australia objected because
1. Legality of Australia’s behaviour at the time of the treaty with Indonesia cannot be established without first establishing Indonesia’s lawful conclusion of the treaty
2. To say that Indonesia doesn’t have power over East Timor–> need to have Indonesia’s consent–> but did not ratify the optional clause so did not consent
Did the ICJ hav jurisdiction in the East Timor Case?
Court concluded that it lacked jurisdiction because of lack of consent from Indonesia
What is the Purpose of the International Criminal Court (ICC)?
It is the court in charge of applying legal obligations to individuals
Why were Ad Hoc Tribunals created?
For the trial of individuals related to WWII and the Holocaust
–> Nuremberg and Tokyo Military tribunals
-Only individuals of states defeated at war were tried: Germans and Japanese
What are examples of Ad Hoc Tribunals before and after WWII
_Rwanda
_Yugoslavia
_Nuremberg
_Tokyo
What does the incorporation of International Law entail?
-Applying international legal rules within national jurisdiction
–> the ability of domestic courts to apply rules that come from international agreements or customs
What are the direct and indirect consequences of Incorporation?
Direct:
–> International and domestic law: only one system of law
_civil law countries
Indirect:
–> domestic legislation required for incorporation to happen
–> Dualism: 2 separate systems of law
-When a state ratifies a treaty domestic courts cannot apply the treaty directly
–> act of parliament to create domestic law that incorporates the treaty: creating a new source of law (replicates the content of international agreement but at the domestic level)
–> Common law countries
A State which has broken a stipulation of international law cannot justify itself by referring to its domestic legal situations- TRUE OR FALSE
TRUE
Customary Law hasn’t been applied by Canadian courts and needs to be incorporated- TRUE OF FALSE
FALSE: Customary law = directly applied by Canadian courts (no need to be incorporated)
Which holds precedence constitutional norms or international law in Canada and the US?
Constitutional norms
Customary law used as subsidiary source of Canadian law- TRUE OR FALSE
TRUE
Treaties don’t require implementing legislation to become a part of domestic law- TRUE OR FALSE
FALSE: Capacity to bind the State internationally through the conclusion of a treaty is a prerogative of the Executive
In the US the constitution placed hierarchically above treaties and national law- TRUE OR FALSE
TRUE: Superiority of constitution also applies to executive agreements (presidential agreements with foreign countries)
What is the Time Rule in Domestic Courts?
-If there is a clash between laws passed by congress and treaty that has been ratified
–> Whichever was enacted by congress last must be followed
What is State Responsibility?
It is generated by conduct in breach of a state’s obligation owed to another state under international law
What are the rules which determine a breach in international law?
-Primary rules: rules of international law determining whether an action is a breach of international obligation owed by one state to another
–> what i have to or should refrain to do
-Secondary rules: determines whether a breach is attributable to a state and what are the legal consequences of this breach
–> laws of state responsibility
What is an Internationally Wrongful Act?
A breach of a legal obligation attributable to a state
What are the conditions to determine an internationally wrongful act?
- Conduct must be attributable to the state in question
- Actions must be a breach of international law
What determines whether an act is attributable to the state?
-one organ of government of the the state
-one agent of the state
-one person acting under the control of an agent of the state
What was the context of the Iran Hostage Crisis?
-Iranian Revolution 1979
-US embassy in Tehran was occupied and diplomatic and consular staff held as hostages
Who was responsible for the Iran Hostage Crisis?
Not direct agents of the government of Iran:
–> Radicalized Muslim Iranian college students
The US went the ICJ for provisional measure against Iran demanding the release of hostages and both the ICJ and Iran complied- TRUE OR FALSE
FALSE: Provisional measures mandates by the Court but ignored by Iran
Which 3 Treaties contained compromissory clauses within the Iran vs US case
-Vienna Convention on Diplomatic Relations
-Vienna Convention on Consular Relations
-Bilateral treaty of friendship between US and Iran
Did the ICJ have jurisdiction in the Iran Hostage Case?
Yes: the ICJ had 3 pieces of applicable international law at play
Was the Hostage Crisis attributable to the state of Iran? Why?
Yes:
- Iran’s inaction as a response and Iran’s public approval and perpetuation of actions committed by student
-Students became de facto agents of the state by endorsing actions
Was the hostage crisis a breach of international law?
-Obvious response that taking personal of an embassy as hostages= violation of treaties
What were the conclusions of the Iran Hostage Crisis
Iran Owed to US
->Obligation to immediately stop actions in progress
->Obligation to restitute the situation to what it was before
->Obligation to pay reparations to the US (never did)
-Changes in circumstances allowed to find and agreement
–> (death Shah, Iran-Iraq War)
What is the Intertemporal Rule?
To establish if an action is a breach to international law we have to look at the international law enforced at the time the action was committed
What is Force Majeur?
impossible for the state to comply (doesn’t have the capacity)
What is Distress?
Human life would be endangered if complied with obligation
What is Consent?
Consent of the injured party to let the responsible state act wrongfully
–> cannot later claim that state violated an obligation (gave okay to commit legal breach)
What is Self-defence?
-Violate international obligation owed to other state in self-defence
-defending territory or integrity of the state
–> activates when you have been attacked by another state
What are Countermeasures?
-Enforcement measures that exist in a self-help system
–> if you violated treaty against me, I will bring you back into compliance by committing certain actions that otherwise would maybe also be considered violations
–> my unlawful actions are allowed by international law
No circumstances would ever preclude wrongfulness when norms of jus cogens are breached (peremptory law)
-TRUE OR FALSE
TRUE
A state may not invoke the responsibility of another state in respect of injury to is nationals if:
-The claim does not satisfy the nationality of claims rule
-Is one to which the rule of the exhaustion of local remedies applies
What does the claim of Plurality of Injured States entail?
-Each injured state may separately invoke the responsibility of the responsible state
What does the claim of Plurality of Responsible states entail?
-Separate responsibility of each state may be invoked for conduct attributable to it
What is Cessation?
Obligation to stop ongoing act
What is Non-Repetition?
Give guarantee that the state won’t resume these actions
What is Reperation?
-For the injured cost
–>Restitution
–>Compensation
–>Satisfaction
What is Restitution?
Reestablishment of situation existing before the breach
What is Compensation?
Material compensation for damaged cost
What is satisfaction?
-Reparation applied for injuries non financially assessable
-State admitting its violation of international law
OR
-Ruling from a court formally stating that the state violated obligations owed to other states
–> symbolic nature reparation
What are Peremptory Norms?
Obligations owed to everyone
(all states)
When Jus Cogens is violated only relevant parties are considered injured parties- TRUE OR FALSE
FALE: When rule of jus cogens violated 🡪 everyone else is an injured party
–> whole international community
What are the consequences of a serious peremptory norm breach?
-Obligation for the entire international community
–>Obligation not to recognize the situation emerging from that breach as a lawful situation
–>Obligation not to contribute to the maintenance or repetition of the situation brought about by the violation of the peremptory norm
Define Jurisdiction
Domains over which the law has power
What are the three components on Territorial Jurisdiction of the state
-Inherent in state sovereignty
-State’s exclusive authority over its territory
-implies control over the sea and the sky
There is still Terra Nullius in the world- TRUE OR FALSE
FALSE: all land has now been claimed by states
Disputes over territorial borders not as common as they used to be- TRUE OR FALSE
TRUE
Today disputes over borders are still a relevant contention within international law- TRUE OR FALSE
FALSE: Today most states borders are settled, only exceptionally disputes over borders
What is Territorial Jurisdiction?
Legal authority exercised by a state on its territory follows from the effective control that the government has over the territory
Statehood is a political fact- TRUE OR FALSE
TRUE
What was the 1982 Conference of Montego Bay?
The Law of the Sea Convention where widely ratified multilateral treaty BUT not ratified by US
US refused to sign the Law of the Sea Convention and is still bound by rules that are part of customary law- TRUE OR FALSE
TRUE
Oceans are res communis- TRUE OR FALSE
TRUE: Commons available for the use of all states
What is considered Territorial Sea?
12 nautical miles from the baseline
What distinguishes a Costal State
exclusive jurisdiction over territorial sea (air above it + sea bed)
What is Right of Innocent Passage?
-Exception to exclusive jurisdiction
–> passing through the territorial sea is a right granted to all states
–>Warships excluded from right of innocent passage, requires prior authorization
What is Right of Transit Passage?
When territorial sea is part of an international strait (no alternative to passing in territorial sea, right granted even to warships)
What happens if between 2 costs there are less than 24 miles?
-Cases settled by negotiation (not defined by international law)
-At least 1 of the 2 territorial seas is going to be narrower than 12 miles long
What is the Contiguous Zone?
-Up to 12 miles further from the territorial sea
–> states do not have exclusive jurisdiction
–> still has special policy authority
What is the Exclusive Economic Zone?
-up to 200 miles from baseline (up to 350)
-(Includes seabed and air)
Costal states have exclusive jurisdiction over exclusive economic zone - TRUE OR FALSE
FALSE: Coastal state have NO exclusive jurisdiction but has exclusive right of exploitation of the resources
All states have the same rights when it comes to the High Seas- TRUE OR FALSE
TRUE
What was the outcome of the 1919 Paris Convention for the Regulation of Aerial Navigation?
gave states exclusive sovereignty, or jurisdiction, for the column of air above a state’s land territory and territorial sea
What was the 1944 Chicago Convention of International Civil Aviation?
further confirmed exclusive state control over airspace and also laid down many specific rules, including assigning nationality to planes according to their country of registration
Violation of a country’s airspace = very serious and sensitive issue- TRUE OR FALSE
TRUE
What was the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft
affirms that for any commission of a crime the state of the aircraft’s registration had jurisdiction
–>not unlike exercising national jurisdiction on board a ship at sea
The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft directly addresses hijacking- TRUE OR FALSE
FALSE: does not directly address hijacking
What is the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft?
-deals with sabotage
–>covers harming persons on board planes, damaging the aircraft in flight, placing explosives on the plane, or interfering with navigation facilities
Define Nationality
legal identification of a person with a State
What are the mechanisms through which nationality is established?
- Jus soli (place of birth)
- Jus sanguinis (nationality of parents)
What emerges with globalization?
prevalence of double nationality
Define Naturalization
legal process of changing from one nationality to another
Why is nationality important?
Because states have jurisdiction over their nationals and aliens
–> foreigners on their territory
Define Sovereign Immunity
exemption of one state’s public acts and property from the court cases of another state
–> act of comity
Internationally there is no uniformity among judges and countries as to when and how to apply sovereign immunity- TRUE OR FALSE
TRUE
Define State Doctrine
deference is given to the sovereignty of another state, but here emphasis is on acts of a government on its own territory
–>decisions made by a government within its national context, that affects another state’s citizens in a negative way, will be given full respect as a sovereign act
Define Extraterritoriality
extending state legal authority beyond its territory
What are the 5 Principles of Extraterritoriality
-Nationality Principle
-Passive Personality Principle
-Effects Principle
-Protective Principle
-Universality Principle
Define Nationality Principle
Government of a country can prosecute its citizens for violating its law, regardless of where the act has been committed
Define the Passive Personality Principle
Involves a criminal act against a state’s citizen while abroad
The Passive Personality Principle is recognized by the UK- TRUE OR FALSE
FALSE
Define Effects Principle
Non-security issues
Define Protective Principle
Security issues
–>Both involve wrongful acts that begin outside a country but impact hat country in some wa
Define Universality Principle
For crimes open of universal jurisdiction 🡪 any perpetrator can be tried by any state
Increasingly, governments must rely on an international process of reciprocal cooperation- TRUE OR FALSE
TRUE
What was the context of Lotus 1927 France vs Turkey?
-1886 Collision between French and Turkish ships
–>5 miles away from Turkish coasts
-Dispute because happened in high seas
-French arrested in Turkey and tried for manslaughter under Turkish law
–> French brought Turkey to ICJ
What were the arguments in the France vs Turkey case
- France’s argument = Turkey in violation of international law
- Turkey’s argument = the opposite
–>Turkey no right to exercise jurisdiction over the case
Exercise of Jurisdiction is a sovereign’s prerogative-TRUE OR FALSE
TRUE
The Court found that Turkey’s exercise of jurisdiction over French is in contradiction with International Law- TRUE OR FALSE
FALSE: Turkey’s exercise of jurisdiction over French is not in contradiction with international law
American student in Italy that allegedly killed her British roommate-
Which countries could claim jurisdiction over that crime?
The 3 Of Them
–>Italy: basis of jurisdiction = territorial jurisdiction
–>US: basis of jurisdiction = nationality principle (extraterritorial)
–>UK: basis of jurisdiction = passive personality jurisdiction
The UK does not recognize passive personality principle as a valid basis of extraterritorial jurisdiction- TRUE OR FALSE
TRUE: the UK cannot cannot claim trial against people killed on other lands
–> no extraterritorial jurisdiction
All principles are equally valid claims of jurisdiction- TRUE OR FALSE
TRUE
What happens when 2 countries both have jurisdiction in a case?
Resolved By Negotiation:
-State that has custody of the perpetrator has the upper hand
–> Accusé has to be present on soil
-If bargaining fails: state that has custody will exercise jurisdiction
Define Extradition
International process of reciprocal interstate cooperation in legal enforcement
–> Basis of jurisdiction must be recognized by both states
What are the Typical Conditions of Extradition?
-Prima Facie evidence suggesting trial
-Double Criminality
Speciality Rule
What is Prima facie evidence suggesting trial?
Must provide sufficient evidence to suggest that it makes sense for a trial to be started
What is Double Criminality?
Crime must be recognized by both sending and receiving state
What is the Speciality Rule?
The requested person must be tried only for the charges he or she was extradited on
Extradition often includes the guarantee that the death penalty won’t be applied even if the person is found guilty- TRUE OR FALSE
TRUE
What is the Principle of Male Captus Bene Detentus?
individual unlawfully captured from foreign territory but detainment considered good so the trial will still go on
Define the Legality Principle
Non-retroactivity of criminal law
Define Intertemporal Law
-an act cannot constitute a crime if at the time it was committed, it was not a crime according to the law in force at the time
Regional European treaty about extradition does not require prima facie evidence to hold a trial- TRUE OR FALSE
TRUE
Immunity does not include international crimes such as torture- TRUE OR FALSE
TRUE
What was the context of the Falklands Case?
Islands 500 miles from Argentinian coast (close to Argentina but very far from England)
What were the 6 Bases to Claim Sovereignty Rights Based on International Law?
-Discovery
-Occupation
-Prescription
-Abandonment
-Succession
-Contiguity
Define Discovery
-Whoever discovered the territory can claim sovereignty rights
-Both have claimed their SR based on discovery
–>Failed for both
–> Not clear that for Argentina, Spain discovered islands first
–>Evidence that English or French got there first
Define Occupation
-Effective Occupation 2 conditions
▪ No one must have occupied it before
▪ Occupation has to be effective (continuing display of authority)
Define Prescription
-Points to a long-term peaceful possession of the territory that might generate exclusive rights over the island
-Comes in 2 forms
–> Acquisitive: long term peaceful possession is met with no protestation from any other state
–>Extinctive: points to long term possession that may be originally wrongful but over time exclusive possession was maintained over time
Define Abandonment
Implies that you leave the territory + show that the other state left the territory with the intention to relinquish any sovereignty rights over the territory
Define Succession
-If state has sovereignty over the islands
-Cannot inherent a right that the previous state did not have
Define Contiguity
Geographic proximity 🡪 is not a recognized basis for claiming sovereignty over territory in international law
–> Relatively speaking 🡪 islands close to Argentina but still 500 miles away (weak argument)
