Public International Law Flashcards
(174 cards)
1
Q
Are the “Articles on Responsibility of States for Internationally Wrongful Acts” adopted by the International Law Commission legally binding?
A
No, the articles are not legally binding in themselves. While they do not have the character of binding rules of law, they contribute to the identification and development of customary international law. While the articles are not treaties, they are considered by many as an authoritative restatement of customary international law on this specific topic.
2
Q
How do the “Articles on Responsibility of States for Internationally Wrongful Acts” adopted by the International Law Commission become binding?
A
The articles become binding as they contribute to the development of customary international law through state practice and opinio juris, reflecting a general and consistent practice of states accompanied by a belief that such practice is legally required (opinio juris).
3
Q
How could a claim arising from a wrongful act be barred due to time elapsed before the ICJ?
A
Acquiescence, in the context of Article 45 of the “Articles on Responsibility of States for Internationally Wrongful Acts,” refers to a situation where the injured State, through its conduct, is considered to have validly accepted or given its implied consent to the lapse of the claim for responsibility against the responsible State. It involves the passive acceptance or non-opposition to the wrongful act, suggesting that the injured State, by its behavior, has waived the right to invoke responsibility for the internationally wrongful act committed by another State. Acquiescence is a form of implied agreement or acceptance through inaction or silence.
General Principles: Estoppel (Common Law), Forfeiture (Civil Law).
4
Q
Reparation claim Poland against Germany. How could such a claim be barred by the ICJ?
A
Abuse of procedure, good faith
5
Q
What was the international court under the League of Nations?
How does it relate to the International Court of Justice?
A
The Permanent Court of International Justice
The ICJ is basically a copy paste of the Permanent Court of International Justice
6
Q
Regarding Russia, what can be said about the adherence to international public law?
A
Russian Federation is always explaining its actions by reference to international law. It’s almost universally true. Even states that are clearly in breach of international legal obligations. International law seems to be impossible to rejecting states. No state wishes to be excluded.
7
Q
How did Judge Crawford (ICJ) describe international law? What are the necessary elements?
A
1) Core: Institutions and associated rules
2) Interstate relations
3) Principle of formal equality of states
4) Capacity of governments to represent the state
5) Processes of treaty making
8
Q
Give 4 examples of how states can be differentiated
A
1) Capitalist and communist countries during the Cold War
2) Developed and developing states
3) Great powers and small states
4) Seafaring nations and coastal states
9
Q
What is the role of IL in the international system?
A
Providing for cooperation on shared interests (global public goods)
1) Environmental stewardship
2) Peace
3) Health
4) Non-use of weapons of mass destruction and non-nuclear proliferation
5) Common trade rules
10
Q
Permanent Court of International Justice, 1927, Lotus Case. What is international law?
A
International law governs relations between independent states.
11
Q
International law governs the relations between independent states according to the Permanent Court of International Justice (1927). C. Jenks (1958) believed it was more than that. Explain.
A
International law represents the common law of mankind in an early stage of development, of which the law governing the relations between states is one, but only one, major division.
12
Q
How is international law distinct from domestic law?
A
Different to domestic law, which usually has:
* recognised body to legislate or create laws
* hierarchy of courts with compulsory jurisdiction to settle
disputes over such laws
* accepted system of enforcing those laws
* Generally Assembly, ICJ and Security Council do not fulfil these role
13
Q
What is Judge Mohammed Bedjaoui’s perspective on the foundation and nature of international law, as expressed in his statement from 1991?
A
Judge Mohammed Bedjaoui asserts that international law, unlike municipal law, primarily relies on the consent of states, either express or tacit. He contends that international law functions more as a law of coordination among sovereign states rather than a law of subordination, emphasizing the absence of a centralized coercive apparatus akin to that found in municipal legal systems.
14
Q
What could be an argument that international law is not true law?
A
Critics contend that, unlike municipal laws that can be enforced through a centralized legal system within a sovereign state, international law lacks a universal coercive authority to ensure compliance. The challenge of enforcing rules against entire nations, particularly powerful ones, raises skepticism about the effectiveness and legitimacy of international law as a true legal system. The absence of a global enforcement mechanism, according to this view, undermines the traditional characteristics associated with legal systems.
15
Q
What could be an argument that international law is true law?
A
The argument supporting the classification of international law as true law is grounded in the widespread and consistent adherence to its principles and obligations by nations. Scholars such as Louis Henkin and Brierly contend that the near-universal observance of international law by almost all nations, most of the time, provides compelling evidence for its existence. They emphasize that states not only recognize the existence of international law but also acknowledge their obligations to adhere to it. The analogy is drawn to municipal law, where individuals may violate laws, yet neither individuals nor states commonly assert that they are above the law, indicating a fundamental recognition and acceptance of the binding nature of international legal principles.
16
Q
Give four examples how international law can be enforced
A
- Sanctions (Security Council etc)
- Judicial enforcement
- Loss of legal rights and privileges
- Self-help (WTO etc)
17
Q
Give an example of an international organization that was established independently from states and has transpired into binding international law for states
A
In 1863, the International Committee of the Red Cross (ICRC) was founded with the primary objective of providing humanitarian aid and protection to individuals affected by armed conflicts. Subsequently, the development of the Geneva Conventions marked a crucial step in the “humanization” of conflict. This concept refers to the efforts to mitigate the impact of war on both combatants and civilians through the establishment of international legal instruments.
18
Q
When were the United Nations and the International Court of Justice established?
A
Both in 1946
19
Q
Which two important IOs were established in the 1990s?
A
1995: WTO
1998: Rome Treaty to establish the International Criminal Court
20
Q
Domestic law has
- Constitution
- Legislature
- Hierarchy of courts
- Executive orders
What are the analogues in international law?
A
- No constitution, legislature, court hierarchy or executive
- Challenge of discovering where the law is
21
Q
What is the oldest original source of international law?
A
Custom.
22
Q
Is an agreement between the IMF and a member state a treaty?
A
No. A treaty is an international agreement concluded between STATES in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
23
Q
What are the two elements of customary international law? (including sub-elements)
A
Material element
* State practice
* Extent of practice
* Dissenting states and persistent objectors
* Duration of practice
Psychological element
* General practice is due to a feeling of legal obligation
24
Q
According to the ILC draft conclusions on identification of customary international law,
2018, what is evidence for state practice?
A
- Practice may take a wide range of forms. It includes both physical and verbal acts. It may, under certain circumstances, include inaction.
- Forms of State practice include, but are not limited to:
diplomatic acts and correspondence;
conduct in connection with resolutions adopted by an international organization or at an
intergovernmental conference;
conduct in connection with treaties;
executive conduct, including operational conduct “on the ground”;
legislative and administrative acts [of national governments]; and
decisions of national courts
25
In what form can state practice be used as evidence for state practice?
The statements can be made 1) about the law that is in force or 2) about the law which is desired to be established and 1) against the national interest or 2) for the national interest.
Most value as evidence has statements about the law that is in force against the national interest.
26
Can treaties be extended to bind third parties without their consent?
No, according to art. 34 of the Vienna Convention on the Law of Treaties.
However, the treaty purports to be declaratory of customary international law or if it can be established that it was intended to be declaratory of customary international law, then may be accepted as valid evidence of state of customary rule (North Sea Continental Shelf Cases).
27
According to the North Sea Continental Shelf Cases (1969), what are the three requirements for treaties to become customary international law?
* 1 convention provision must be of a fundamentally norm-creating character
* 2 must be widespread/representative participation in convention, particularly of those state whose interests are specifically affected;
* 3 must be opinio juris reflected in extensive state practice
28
Can conduct of international organizations be evidence of customary international law?
Yes, with reference to states' relations to organizations, records of the cumulative
practice of international organisations may be regarded as evidence of customary
international law according to an advisory opinion of the ICJ.
29
When may a provision in a resolution adopted by an international organization
or at an intergovernmental conference constitute customary international law?
If it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).
30
Material element: extent of practice (4 points)
* Should be ‘extensive’ (North Sea Continental Shelf cases)
* Must be common and widespread practice, although universal practice not necessary
* If practice is not widespread or general, may still be local or regional customary rule, - Asylum case (1950)
* Practice of specially affected states is also often significant – e.g. coastal states with a
continental shelf in the North Sea Continental Shelf (& not landlocked states)
31
Material element: duration of practice - is it necessary for a practice to have been applied for a long time?
No. Although the passage of only a short period of time is not necessarily, of itself, a bar to the formation of a new rule of customary law ... within the period in question, short though
it might be, state practice ... should have been both extensive and virtually uniform” (ICJ, North Sea Continental Shelf Cases).
The factor is relatively unimportant.
32
How can states be exempt from a customary international rule?
A persistent objector may not be bound by the eventual customary rule if it fulfils 2 conditions:
* 1. objections must have been maintained from early stages of rule onwards
* 2. objections must have been maintained consistently, to protect interests of other States
Anglo-Norwegian Fisheries case (1951) ICJ. Re Norway calculation of territorial sea.
ICJ found Norway not bound by existing general rule of customary law.
33
Do newly independent states have to accept international customary law?
See UN Charter: All states must accept principles including settlement of disputes ‘in conformity with the principles of justice and international law' (Article 1(1)).
34
Explain the psychological element for international customary law
“opinio juris sive necessitatis” = belief (or opinion) of law or of necessity
High threshold of proof applied by courts. Proving OJ difficult
Evidence of a general practice, or the previous court judgments, may be taken as evidence of opinion juris (e.g. Gulf of Maine case (1984).
Also: UN General Assembly resolutions & other IO decisions (How a state votes is key)
35
What three ICJ cases are used most to apply international customary law?
* Asylum Case (ICJ) regarding proof of customary law
* North Sea Continental Shelf Cases (ICJ) regarding material elements of customary law (different from general ones)
* Nuclear Weapons Advisory Opinion (ICJ) regarding psychological element
36
Describea case in which the ICJ held that there was no customary international law
Columbia v. Peru (ICJ), **Asylum Case**
The Colombian government granted a Peruvan person asylum, but the Peruvian government refused to grant him safe passage out of Peru.
Colombia maintained that according to the Conventions in force - the Bolivian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum[2] - and according to American International Law, they were entitled to decide if asylum should be granted and their unilateral decision on this was binding on Peru.
Firstly, the Court found that there was an inability to discern a constant and uniform rule regarding diplomatic asylum in Latin-American states.
Secondly, even if it could be supposed that such a custom existed between certain Latin-American states, the Court held that it could not be invoked against Peru. This was due to Peru's explicit rejection of the alleged custom, as evidenced by its non-ratification of the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offense in matters of diplomatic asylum.
37
In the Nuclear Weapons Advisory Opinion (ICJ), the court addressed the question if the use of nuclear weapons is illegal. What did the court find?
Discuss
1) Opinio juris
2) Diferent poles
3) Conclusion
The members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris.
The two poles in this discussion:
* States alleging illegality: ‘They refer to a consistent practice of non-utilization of nuclear weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part of those who possess such weapons’.
* States defending legality: Doctrine of deterrence, not opinio juris, is explanatory of no-use.
The Court held that there is no source of international law that explicitly authorises or prohibits the threat or use of nuclear weapons but such threat or use must be in conformity with the UN Charter and principles of international humanitarian law.
The Court also concluded that there was a general obligation to pursue nuclear disarmament.
38
How can UNGA Resolutions have normative character?
Where can we find such a statement?
Nuclear Weapons Advisory Opinion (ICJ)
‘The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris (further reinforced by resolutions on the same topic).
39
Great powers have greater influence on creating customary international law. Give two examples.
UK on sea law during empire
US and Soviet Union on space law during Cold War
40
Give six examples for states to use treaties
* wars ended
* disputes settled
* territory acquired
* special interests determined
* alliances established
* international organisations created
41
Why are treaties binding?
Historically: Customary international law (pacta sunt servanda) - the oldest principle of international law
Now included in the Vienna Treaty on the Law of Treaties, art. 26
"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
42
What is the difference between law-making treaties and treaty contracts in international law?
The distinction between law-making treaties and treaty contracts lies in their scope and effects. Law-making treaties, also known as "traité-lois" or normative treaties, create obligations that can continue as general international law. They may even provide evidence of customary international law. An example of a law-making treaty is the International Covenant on Civil and Political Rights (1966), which establishes broad obligations applicable to a wide range of states.
On the other hand, treaty contracts, or "traité-contrats," represent agreements between relatively few states. These agreements can only create specific obligations between the signatory parties and are capable of fulfillment. Unlike law-making treaties, treaty contracts do not have the same potential to shape general international law but are more focused on particular commitments among the involved states.
Both categories overlap, there are grey areas.
43
According to the Vienna Convention on the Law of Treaties, what is a treaty?
An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
44
What is essential for an agreement to form a treaty?
Does it require a specific form?
No specific form.
Essential that the parties intend to create legal relations between themselves. Needs to be in writing.
45
What is a mandate agreement? In what case did the ICJ confirm that it was a treaty?
A mandate agreement, in the context of international law, typically refers to a legal arrangement where one country is entrusted with the administration of a territory on behalf of an international organization or community. Such mandates were often established by the League of Nations, and later the United Nations, to oversee the administration and governance of territories that were deemed not yet capable of self-government.
Context on the South-West Africa Cases (ICJ Reports, 1962):
In the South-West Africa cases, the International Court of Justice (ICJ) considered the legal status of the mandate agreement over South-West Africa (now Namibia). South Africa administered the territory under a League of Nations mandate. The ICJ regarded the mandate agreement as having the character of a treaty, and this recognition played a role in addressing the legal issues related to the administration of South-West Africa.
46
The Vienna Convention on the Law of Treaties does not apply to which three kinds of agreements?
* Agreements involving international organizations
* Agreements between states governed by domestic law, e.g. commercial agreements
* Agreements not in written form
47
When did the ICJ discuss the intent to create legal relations?
Qatar v. Bahrain, re Minutes dated 25 December 1990 signed by the parties and Saudi Arabia. ICJ emphasised that whether an agreement constituted binding agreement depends upon ‘all its actual terms’ and circumstances in which it had been drawn up
Express terms and contextual interpretation
Extrinstic evidence: Minutes were to be construed as international agreement creating rights and obligations for the parties, since on the facts they enumerated the commitments to which the parties had consented
48
Within states, who can draft treaties?
Treaties may be drafted as between states, or governments, or heads of states, or governmental departments, etc
Which part(s) of government has the power to make treaties depends on domestic law of
each state
49
According to the VCLT, what are the two ways texts can be adopted as a treaty?
What practice does this mirror?
1. Consent of all states participating in its drawing
2. During a conference, by two thirds of the states present unless by the same rule a different rule is decided
Follows practice of UN General Assembly
50
How have the 1966 International Covenants on Human Rights and the 1984 Convention against Torture been adopted?
By a UNGA resolution. They subsequently still had to be ratified.
51
In the past, treaty text were adopted in the UNGA based on two-third majority. What is the more recent approach?
Consensus (e.g., Paris Agreement).
52
What four types of consent are there? (i.e., what are the forms treaties enter info force)
Consent by Signature: A state expresses its consent to be bound by a treaty through the signature of its representative. This can happen when the treaty explicitly states that signature has this effect, when there is an established agreement among negotiating states, or when the intention to give effect to the signature is evident from the full powers of the representative. Ratification is more common.
Consent by Exchange of Instruments: Consent to be bound by a treaty is expressed through the exchange of instruments between states. This occurs when the instruments themselves state that their exchange will have the effect of expressing consent, or when there is an established agreement among the involved states. This process involves the physical exchange of written instruments between the participating states. The term "instrument" refers to the formal documents, such as the written text of the treaty or relevant diplomatic notes, that embody the agreement between states.
Consent by Ratification: Ratification is defined as the international act by which a state establishes, on the international plane, its consent to be bound by a treaty. The consent is expressed by ratification when the treaty provides for such consent to be expressed this way. Ratification typically follows the act of signature. After the negotiators sign the treaty, each state must go through its domestic procedures to formally approve and accept the treaty. Delay between signature and ratification allows extra time for consideration.
Consent by Accession: Consent to be bound by a treaty is expressed by accession when the treaty allows such consent to be expressed through accession, when there is an established agreement among negotiating states that accession is acceptable, or when all parties subsequently agree that the state may express its consent through accession. States may resort to accession when they have not signed the treaty, often because the treaty limits signature to certain states or because a deadline for signature has passed. Multilateral treaties often allow states to accede at a later date.
53
What is a reservation? Is it covered in the Vienna Convention on the Law of Treaties?
Yes, covered.
States can modify or exclude the legal effect of provisions of a treaty by reservations.
54
Why are reservations allowed?
It encourages more states to join multilateral treaties even if they are not satisfied with certain provisions.
55
What are the risks of reservations?
It can defeat or negate the purpose of a treaty.
It adds additional complications to international relations.
56
What are interpretative declarations? What legal effects do they have?
Unlike reservations, they have no legal effect.
57
When is a reservation invalid? (case)
‘if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it can . . . consider that the reserving state is not a party to the Convention’ (Reservations to the Genocide Convention case, ICJ, 1951)
58
Under the Vienna Convention on the Law of Treaties, when are reservations prohibited?
1) when prohibited by the treaty
2) when only certain reservations are allowed
3) when the reservation is incompatible with the object and purpose of the treaty (ICJ Reservations on Genocide Convention)
59
Under the Vienna Convention on the Law of Treaties, what if another signatory state objects to a reservation of another state?
It can object to the objection.
It can also object to the entry into force.
In the former case, there will be no legal relation in that regard between the member states.
60
Libyan reservation to the 1961 Vienna Convention on Diplomatic Relations re the diplomatic bag, permitting Libya to search the bag with the consent of the state whose bag it was, and insist that it be returned to its state of origin. If another state did not object to this, what would follow?
The other state could give Libya the same treatment.
61
Can a reservation be withdrawn?
Yes, anytime unless the treaty specifies differently.
62
Under the Vienna Convention on the Law of Treaties, how do treaties enter into force absent any other provision?
As soon as consent to be bound has been established for all negotiating states.
63
Can treaties operate retroactively?
Yes, but it has to be specified (art. 28).
64
Can treaties apply only to a certain territory?
Yes, but it has to be specified (art. 29).
65
When two treaties conflict on certain matters, which one prevails? Example Montevideo and NAFTA
The later one (art. 30)
Example Montevideo Convention and NAFTA.
Requires that the members of the second treaty are also members of the first.
66
How can treaties usually be amended?
According to the VCLT, the same procedures have to be follow as for the creation, unless specified.
67
How can the UN charter be amended?
Requires adoption and ratification of two thirds of all members, but including all permanent members of the UNSC.
68
What is the difference between amendment and modification?
* Amendment: formal alteration of treaty provisions, affecting all the parties to particular agreement
* Modification: relate to variations of certain treaty terms as between particular parties only
69
What are the three approaches to treaty interpretation?
* 1. focus on actual text of agreement and analysis of the words used (objective approach)
* 2. focus on intention of the parties adopting agreement as the solution to ambiguous
provisions (subjective approach)
* 3. emphasises the object and purpose of the treaty
* In reality, all components are necessary for interpretation.
70
What other sources can be adduced for the interpretation of a treaty between different parties?
1) Other treaties the parties have entered in connection with the present treaty (course of dealing)
2) Subsequent treaties or practice between the parties (course of performance)
3) Any relevant rules of international law applicable between the parties
71
How to terminate or suspend a treaty?
The procedure in the Vienna Convention on the Law of Treaties (VCLT) has to be followed.
72
What is jus cogens? Give examples
If a new compulsory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Widely accepted examples of jus cogens:
* Peoples’ right to self-determination
* Prohibitions on:
* Slavery
* Use of force between States
* Racial discrimination
* Torture
* Genocide
73
In the absence of a provision on the withdrawal of a treaty, what does the VCLT say?
It has to be established that the parties intended to admit the possibility of withdrawal or a right might be implied from the treaty.
74
In bilateral treaties, can states withdraw after a material breach of the other party?
Yes, but the breach has to be material. Suspension is also possible.
75
In multilateral treaties, can states withdraw after a material breach of an other party?
Yes, but it requires a unanimous decision.
76
Can states withdraw from a treaty because of a fundamental change in circumstances? Where is the source? What are the limits?
Customary international law and VCLT.
VCLT limits this possibility if it has been limited in the treaty itself.
77
Is it common for international courts to rely on general principles? For states to make claims?
No, it is rare, thus also rarely granted.
78
Give an example of a case that relied heavily on general principles
Barcelona Traction Case.
* ICJ relied on municipal law concept of limited liability company
* Court emphasised that to decide case in disregard of the relevant institutions of domestic law it would create problems
* Loss of touch with reality, as no corresponding institutions in international law instead
79
Give seven examples of general principles that have been used in PCIJ and ICJ cases
* Whoever is authorized to establish the law is authorized to interpret it
* No one should be a judge in his own cause
* Restoration to original condition
* Estoppel
* A matter already judged
* Equality of parties
* Agreements should be honored
80
Can good faith be itself an obligation? Name two cases
No, : Good faith concept ‘not in itself a source of obligation where none would otherwise exist’ (Nuclear Tests cases, ICJ). good faith relates ‘only to the fulfilment of existing obligations' (ICJ, Cameroon v Nigeria.
81
How is equity being applied in international law? (3)
* choosing between different interpretations of the law (equity infra legem)
* filling gaps in the law (equity praetor legem)
* a reason for not applying unjust laws (equity contra legem)
82
Where is equity often being used?
UNCLOS matters and land boundary matters
83
What are three issues with general principles?
* Great variety, lack of consistency
* Methodology of identifying principles is unclear
* Some general principles are not generally recognized
84
Prosecutor v. Erdemovic, the ICC examined general principles of duress as a mitigating factor. What was the conclusion?
It is clear from the differing positions of the principal legal systems of the
world that there is no consistent concrete rule which answers the question whether or not duress is a defence to the killing of innocent persons.
85
Five general principles in international criminal law
*Proportionality in sentencing
*No crime without law
*Analysis of objective and subjective elements required
*Burden of proof
*Accused should not be tried in their absence
86
Delete
*Compensation includes direct loss and loss of profits
*Good faith
*Same matter cannot be tried twice (in different courts)
*Burden of proof with claimant
*Parties cannot take advantage of their own fault
*Unjust enrichment
87
Where does the International Law Commission have its mandate from?
UN Charter Art. 13 (under UNGA - shall make recommendations promoting international cooperation
88
Which actors do not have legal personality in international law?
Private companies, NGOs, certain armed groups
89
Which three laws have extended legal personality in international law?
Human rights law
International humanitarian law
International economic law
90
Important: What four elements must a state possess to count as an international person? What is the source
* A state as an international person should possess
* (a) a permanent population;
* (b) a defined territory;
* (c) government; and
* (d) capacity to enter into relations with other states
* - Art 1 of Montevideo Convention on Rights and Duties of States, 1933
91
Montevideo Convention on Rights and Duties of States, 1933
Articles 2 to 4
2. Federal state is the state (example: US)
3. Right to defend integrity and independence
4. Equality among states
92
Capacity to enter into relations with other states - is this limited to states?
No, IOs and other state bodies can do that..
93
Explain the difference between declarative and constitutive theory of statehood. Which one is embedded in the Montevideo Convention on Rights and Duties?
The first sentence of Article 3 explicitly states that "The political existence of the state is independent of recognition by the other states." This is known as the declarative theory of statehood. It stands in conflict with the alternative constitutive theory of statehood, by which a state exists only insofar as it is recognized by other states.
94
What additional element for statehood did the PCIJ introduce?
Necessary element: independence, i.e. formal statement that state is subject to no other sovereignty (Austro- German Customs Union case, (1931) PCIJ).
95
Montevideo Convention Art. 2: Federal state is the state (example: US) - was this introduced in the Vienna Convention on the Law of Treaties?
No, could result in intervention in internal affairs.
96
What are Sui Generis Entities? give three examples
Three entities have acquired legal status as international actors through historical precedent or international agreement. These entities do not control significant territory and have a limited international and national profile.
The Vatican
The Order of Malta
International Committee on the Red Cross
97
Sui generis territorial entities - Example in Southeast Europe
Kosovo (UNMIK)
98
Sui generis territorial entities - Example Europe
European Union
99
What are international public companies?
A body established by international agreement providing for cooperation between governmental and private enterprises, e.g., Bank of International Settlements
100
What are indicia of international legal personality for international organizations? (Important)
* capacity to enter into relations with states and other organisations
* and conclude treaties with them
* status IO has been given under municipal law
101
Explain the difference between objective and qualified personality of states
Objective Personality:
Entities with objective personality are subject to a wide range of international rights and duties. They are entitled to be accepted as an international person by any other international person. These entities have the capacity to engage in international relations, enter into treaties, and participate in the international community as recognized entities.
Qualified Personality:
Entities with qualified personality are binding only on the consenting subject. The recognition of personality operates only in personam, meaning that it is limited to the parties involved in the recognition. The legal personhood of entities with qualified personality is acknowledged only by those entities that consent to it. The determination of personality is specific to the consenting parties.
102
How do international law and domestic law stand to each other? Does one prevail over the other? (Case)
“fundamental principle of international law that international law prevails over domestic law” (ICJ, Applicability of the Obligation to Arbitrate case)
103
In international law, what are the "gap fillers?"
General Principles
104
What could count as evidence of a state accepting an obligation? (3)
Conferences and Treaties: Decisions made during international conferences and the negotiation and signing of treaties can serve as clear evidence of a state's intent to accept specific obligations.
Unilateral Declarations: States may make unilateral declarations expressing their willingness to undertake certain obligations. Such declarations can be considered as evidence of the state's acceptance of international responsibilities.
Diplomatic Correspondence: Official letters, notes, or diplomatic exchanges between states can be considered as evidence of their mutual understanding and acceptance of certain obligations.
105
How does the bindingness of international law relate to the language of treaties?
Some provisions in treaties are so vague that it's hard to enforce them, i.e., to hold states accountable for their violation.
106
How are the ICJ statutes binding upon states?
They are part of the UN Charter.
107
Is there a hierarchy in sources of international law?
ICJ clarified that there is no hierarchy.
108
What is the prime example of a law that has become customary international law (many principles)
International Humanitarian Law
109
What is surprising about the Nuclear Weapons case that the ICJ covered?
It could not conclude if the non-use of nuclear weapons was customary international law.
110
How does the World Bank differ from other international organizations in regard to forming treaties?
The WB registers its agreements with the UN as treaties. Most other international organizations do not do that.
111
Although the ICJ has stated that there is no order in the three main sources of international law, describe the three sources and how influential they are
Customary international law stands out as a potent force, deriving from consistent and widely accepted state practices coupled with a belief in their legal obligation (opinio juris). These rules, deeply rooted and applicable universally, carry significant weight in governing states, even in the absence of explicit agreements.
Treaties and contracts, another major source, offer versatility and a swift means of establishing international law. Based on the consent of participating states, treaties bind only those willingly entering into the agreement. This consent-based feature ensures that states retain the choice to join or stay outside the treaty, maintaining a flexible and adaptable approach.
General principles of law complement customary and treaty-based sources, serving as a supplementary guide. Filling gaps in legal frameworks, these principles contribute to the coherence of international law, particularly guiding courts and tribunals in areas like criminal procedure and sentencing. Despite their importance, the application of general principles poses practical challenges, requiring adaptation to specific contexts and raising issues related to interpretation and enforcement. In essence, these three sources collectively shape the dynamic landscape of international legal norms, each playing a distinct role in governing state behavior on the global stage.
112
What are the three + one tasks that the UNGA conducts in regard to international security and peace?
* Makes recommendations to the UNSC in regard to the general principles of cooperation in the maintenance of international peace and security
* May bring situations likely to endanger international peace and security to the attention of the UNSC
* May discuss any situation relevant to maintaining international peace an security on request of a member state
*May call for emergency meeting and make recommendations for emergency measures regarding international peace and security (UNGA Resolution 377(A) "Uniting for Peace") when UNSC comes to no decision, including the call for "armed force, when necessary" (not binding)
113
In international criminal law, what was an issue?
There was no procedural law. Had to be complemented with general principles.
114
What is the difference between self-executing and non-self-executing treaties?
The latter require domestic legislation for implementation.
115
In the US and UK, are courts bound by international law?
Yes.
116
Where can we find the principle of non-intervention in the UN charter?
Art. 2: Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.
117
States cannot exercise their power in the territory of another state. Which case?
Lotus case.
118
Criminal law has three different principles regarding extraterritorial applicability. Which?
Passive Personality Principle:
States may claim jurisdiction to try individuals for offenses committed abroad that have affected their nationals.
Historically controversial, it gained recognition, as seen in the International Convention against the Taking of Hostages, 1979.
Protective Principle:
States may exercise jurisdiction over aliens who committed acts abroad deemed prejudicial to the security of the state.
Justified on the basis of protecting the state's vital interests, especially when the act may not be an offense under the law of the state where it occurred.
Universality Principle:
States have the competence to prosecute alleged offenders irrespective of the place of the crime, regardless of any nationality link or other grounds.
This principle applies to offenses considered particularly offensive to the international community as a whole.
119
How is state immunity regulated?
In the past: Domestic law (remember US example).
Since 2004 Convention on Jurisdictional Immunities of States and Their Property (not yet in force)
120
What approaches of immunity did we discuss? Where is the trend going?
Where can we find this distinction?
Absolute and restrictive.
**Absolute**: Sovereign completely immune from foreign jurisdiction in all cases.
**Restrictive**: Not applicable to commercial activity
This distinction is also contained in the Convention on Jurisdictional Immunities of States and their Property
121
What is the difference between waiver of immunity and immunity from execution?
Waiver of immunity is given by the home state, i.e. the official becomes subject to the host state's jurisdiction.
Immunity from execution can be taken by the host state under certain circumstances (self defence or protection of law).
122
What is the "Diplomatic law"?
1961 Vienna Convention on Diplomatic Relations
123
What is a "waiver for executive of judgement"?
One an official has been waived of immunity, another waiver must be granted by the home state that the official can serve their sentence.
124
Under what laws do international organizations benefit from diplomatic immunity?
The situation is far from clear.
We've seen two situations. One through treaties, e.g. General Convention on Privileges and Immunities of the United Nations.
Another is through domestic legislation (e.g., Green Climate Fund in Korea, BIS in Switzerland).
125
What is the international equivalent of a quasi contract? Is there another way such an imposed obligation can be created?
State responsibility. A wrongful act creates an obligation between two states. Tort is another way but international law does not recognize any difference.
126
What are the necessary conditions to create an obligation under state responsibility? (Important)
* existence of international legal obligation in force between two particular states
* act or omission which violates that obligation and which is imputable to state responsible
* loss or damage has resulted from unlawful act or omission
127
What are four circumstances that preclude state responsibility?
*Consent (e.g., troops enter by invitation
*Self-defense in accordance with UN Charter
*Countermeasure (NOT involving use of force)
*Force majeure
128
What are two issues with State Responsibility?
*Articles do not address the question of fault (i.e., if the state is at fault simply by exercising control over its own state and therein is responsible for everything occurring in it) - the ILC articles do not take a definitive position on that
*Imputability: Whether the actor causing the wrongful act has a connection to the state (e.g., non-state actors acting under government authority)
129
May a third state invoke state responsibility in case of a breach?
State other than an injured state may invoke responsibility of
another state if either obligation owed to group of states including that state, and is established for protection of collective interest of group, or obligation breached is owed to international community as a whole
130
What are the consequences of an internationally wrongful act?
Cessation (obligation to cease to act)
Reparation
Satisfaction (Official apology, Punishment of officials)
Declaration
131
What would would it take to amend ICJ statutes or the UN charter? Has this ever been done?
Two thirds majority. No, this has never been exercised.
132
What two ways exist how the ICJ has established procedural law?
1) More common: General principles.
2) Less common: Courts interprets its own law (LaGrand, US v. Germany)
133
In the ICJ statutes, where do we find the court's power to create its own procedural rules?
Under Article 30(1) of the ICJ’s Statute, ‘[t]he Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure’. The Statute leaves the Court free to decide the procedure for the adoption of its rules of procedure. The main limitation, a substantive one, is not spelled out explicitly: rules of procedure have to conform to the Statute.
134
In its advisory opinion, what did the ICJ state it should do to create its own rules for procedure?
Use internal regulations rather than creating complex rules which have to be submitted to states for approval.
135
What are Practice Directions at the ICJ?
What happens if parties do not adhere to them?
They are soft law that recommend behaviour in addition to rules set by the ICJ.
It is unclear what would happen if parties did not adhere to these recommendations.
136
How does the ICJ's approach towards problems of compliance with procedural obligations differs considerably from that of domestic courts?
The Court retains a wide degree of flexibility in assessing a party’s compliance and the possible consequences in case of non-compliance. As an influential former President of the Court put it, rules of procedure ‘do not constitute a straitjacket, either for the Court or for the parties appearing before it’. This flexibility has been generally used with extreme caution, also to avoid to give rise to potentially confrontational situations with the parties.
137
What sanction can the ICJ take if a party does not comply with a request for documents?
I can take a "formal note" upon refusal, which is barely an effective sanction (art. 49 of the Statute).
Abuse of process has also been sanctioned under general principles.
138
Are provisional measures of the ICJ binding?
Yes, but the court has limited capabilities to enforce the provisional measure.
139
What potential measures could the ICJ take in case provisional measures are not complied with?
1) Punitive damages - not possible as it lacks the legal basis (not in the statute)
2) Withholding judgement - does not seem like an appropriate measure
3) Award of costs - exercised in Nicaragua and Costa Rica San Juan case (winning party does not get the costs covered by the losing party)
140
From when to when was the Permanent Court of International Justice in place?
1922 until 1946.
141
What is the biggest difference between the ICJ and the UN versus the IPCJ and the League of Nations?
Unlike the ICJ (which is the principal judicial organ of the United Nations), the PCIJ was not an organ of the League of Nations 1919.
142
Who within the UN can ask for an advisory opinion?
The advisory procedure is open to five United Nations organs and 15 UN specialized agencies. Before acceding to a request, the ICJ has to decide that it has jurisdiction and, if it has so, whether it should exercise its discretion to give an Advisory Opinion.
143
What were the most advisory opinions about?
On the proper functioning of international organizations, i.e. housekeeping.
144
Mention three advisory opinions that were important
Legality on the use of nuclear weapons
Legal consequences of a wall built in Palestine
Kosovo
145
What is the role of advisory opinions?
What is NOT the role?
To whom does the ICJ give the opinions?
Has the ICJ ever refused an advisory opinion?
the ICJ says that the role of its Advisory Opinions is to advise organs of the United Nations and UN specialized agencies what the law is in respect of a particular problem, and so help the requester deal with the problem in the future. It is not the task of an Advisory Opinion to the ICJ to settle disputes. The ICJ has so far only once refused to give an Advisory Opinion, and that was because the ICJ lacked jurisdiction.
146
What are the requirements for an agency to ask for an advisory opinion?
1. Under the Charter, the agency requesting the Opinion must be duly authorized to request it from the ICJ.
2. The Opinion requested must be on a legal question, and
3. The question must be one arising within the scope of the activities of the requesting agency.
Legality of Nuclear Bomb case
147
What is an important advisory opinion we examined in class?
Reparation for injuries suffered in the service of the United Nations
148
Is the ICJ obliged to give an advisory opinion?
Are there any conditions?
ICJ ‘may give an Advisory Opinion on any legal question’ (emphasis added). This contains two conditions. First, that the request is about a legal question; and, second that the ICJ has a discretion (‘may’) to give an Advisory Opinion.
149
What case addressed the question if advisory opinions can be requested by states even if other states are involved?
1950 Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, the states (Bulgaria, Hungary, and Romania)
150
1950 Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, the states (Bulgaria, Hungary, and Romania) - some states objected to an advisory opinion. What did the ICJ hold? (in three points)
**Scope of Request:**
The ICJ clarified that the advisory request was limited, seeking legal clarifications on the applicability of dispute settlement procedures in Peace Treaties. The Court asserted that such questions, dealing with the interpretation of treaty terms, fell within its international law jurisdiction, distinct from a state's domestic jurisdiction.
**Non-Binding Nature:**
Addressing the argument against requiring state consent due to the non-binding nature of Advisory Opinions, the ICJ stressed that these opinions lack the binding force of contentious case judgments. They are consultative and cannot settle legal disputes between states in the same manner as binding judgments.
**Legal Character of the Question:**
In considering the Advisory Opinion request, the ICJ confirmed that the framed questions were of a legal nature under its Statute and the UN Charter. It emphasized that questions framed in legal terms, posing international law issues, naturally invite responses based on legal principles.
151
1950 Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania - what did the ICJ hold regarding the binding nature of advisory opinions?
The ICJ added that an Advisory Opinion represents the ICJ’s ‘participation in the activities of the Organization, and, in principle, should not be refused’ (emphasis added).
152
Advisory opinions concern themselves with legal questions. What would be the argument of the ICJ that the ICJ should limit its opinions to legal questions, not political.
In Nuclear Weapons, the ICJ went on to say that the fact that the question also had political aspects, as, in the nature of things, is the case with so many questions which arise in international life, **does not suffice to deprive it of its character as a ‘legal question’**, and therefore deprive the ICJ of a competence expressly conferred on it by its Statute.
Whatever may have been its political aspects, the ICJ said that **it could not refuse to admit the legal character of a question** which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.
153
Can the ICJ give an advisory opinion on an abstract topic?
Yes, it held that the Court may give an Advisory Opinion on any legal question, abstract or otherwise.
154
In what cases can the ICJ refuse to give an advisory opinion?
The ICJ should, in principle, not refuse to give an Advisory Opinion. In accordance with its consistent jurisprudence, only **‘compelling reasons**’ should lead the ICJ to refuse giving its Opinion. This article argues that there are compelling reasons for refusing a request for an Advisory Opinion on politically controversial matters.
155
In what two cases has the ICJ considered not giving an advisory opinion based on public interest?
Nuclear weapon case: Opinion would be counterproductive for disarmament
Palestine case: Opinion could be counterproductive for UNSC resolution addressing Israel/Palestine conflict
156
What was the outcome of the Nuclear Weapons case?
In the case of Nuclear Weapons, the ICJ (on that occasion with only 14 judges) famously divided 7–7 and the Advisory Opinion was only given (albeit in guarded terms) in favour of the use of nuclear weapons in self-defence by the casting vote of the President.
157
Explain the reason why the Advisory Opinion on Wall was risky
The ICJ dismissed in less than a page the argument that the wall was lawful because it was to protect citizens of Israel for terrorist attacks. The ICJ relied on the wording of article 51 of the UN Charter, which saved the right of self-defence, and reflects the rule in customary international law. But, by saying that the self-defence argument was not available to Israel because article 51 said that self-defence is only available if a State is attacked by another State, is contrary to the express wording of article 51.
The ICJ statement was also contrary to an earlier UN Security Council resolution, which in 2001 had recognized that force could be used by a State in self-defence in response to attacks on it citizens by non-State actors (see Resolution 1368 (2001) following the 9/11 attacks).
Given the importance of the problem that the Wall Advisory Opinion was seeking to deal with, this clearly wrong statement of international law was most surprising given the eminence of the judges.
158
What are the Geneva Conventions?
The Geneva Conventions, initially adopted in 1864 and later expanded in the 20th century, introduced essential principles and rules governing the conduct of parties involved in armed conflicts. Key elements of these conventions include protocols for the humane treatment of wounded and sick soldiers on the battlefield, provisions to protect civilians not participating in hostilities, guidelines for the treatment of prisoners of war, and the introduction of distinctive emblems such as the red cross/crescent to signify humanitarian activities.
The significance of these conventions lies in their codification of international humanitarian law, aiming to ensure that even in the midst of war, fundamental human rights are respected, and unnecessary suffering is minimized.
159
Why did the ICJ refuse the first request for the Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons?
Because it was requested by the WHO. The ICJ found that the WHO was acting outside its legal capacity. Subsequently, a second request was submitted by the UNGA a year later.
160
What is a special agreement in the context of the International Court of Justice (ICJ)?
Give two examples of cases that have been submitted this way
A special agreement is a formal agreement between two or more states, voluntarily concluded for the specific purpose of submitting a particular legal dispute to the jurisdiction of the ICJ. It outlines the subject matter of the dispute, identifies the involved parties, and serves as the basis for the ICJ's consideration and resolution of the case. Special agreements reflect the fundamental principle that the ICJ's jurisdiction is based on the consent of the states involved.
1) Barcelona Traction case (Belgium v. Spain)
2) Military and Paramilitary Activities in Nicaragua (Nicaragua v. United States)
161
What are the two ways the ICJ can be responsible for a dispute arising from conventions and treaties?
The International Court of Justice (ICJ) can be responsible for a dispute arising from conventions and treaties through two main mechanisms:
1) When the parties to a dispute refer the case to the ICJ by means of a written application instituting proceedings, based on specific provisions in the relevant convention or treaty.
2) When states make declarations recognizing the ICJ's compulsory jurisdiction for certain legal disputes, as provided under Article 36 of the ICJ Statute. In this case, the ICJ's jurisdiction is accepted by states in advance for disputes falling within specified categories, without the need for a separate agreement for each case.
162
What are the two main aspects of the International Court of Justice's jurisdiction?
The International Court of Justice (ICJ) has twofold jurisdiction. Firstly, it decides disputes of a legal nature submitted by States in accordance with international law (**contentious** cases). Secondly, it provides advisory opinions on legal questions at the request of United Nations organs, specialized agencies, or related organizations authorized to make such requests (advisory jurisdiction).
163
Where can we find in the ICJ statute what cases it is responsible for? What does the provision say?
Article 36(2)
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
the interpretation of a treaty;
any question of international law;
the existence of any fact which, if established, would constitute a breach of an international obligation;
the nature or extent of the reparation to be made for the breach of an international obligation.
164
What are the Security Council's two areas of responsibility?
1. Peaceful settlement of disputes
2. Enforcement measures
165
In what cases can parties refer cases to the Security Council?
When they have exhausted other means of resolving a conflict, including:
Negotiation, mediation, arbitration, judicial settlement, resort to regional agencies.
166
In what cases does the Security Council make decisions?
If SC finds existence of threat to, or breach of, peace, or act of aggression, may make decisions binding upon member states under Chapter VII.
167
In what cases may the Secretary General bring issues to the attention of the SC?
If he thinks that they pose a threat to international peace and security.
168
Where is the legal basis for peacekeeping?
There is none. However, SC has the power to establish subsidiary organs and can investigate.
169
How can the ICJ complement the UNSC?
It can give advisory opinions on UNSCR.
170
What are two examples of provisional measures of the UNSC?
Call for withdrawal of troops or ceasefires.
171
What is the distinction between de jure and de facto recognition in international relations?
De jure recognition refers to the formal and official acknowledgment of the legal status and permanence of a government, signifying a long-term commitment and often involving the establishment of diplomatic relations.
On the other hand, de facto recognition acknowledges the effective control of a government without making a formal endorsement of its legal status, allowing a state to reserve judgment on its long-term viability, legality, or desirability. De facto recognition does not necessarily lead to full diplomatic relations and may imply doubt regarding the recognized government's stability.
172
Describe what is the mission of global health law - who are the key participants?
To ensure the highest level of mental and physical health worldwide.
States, IOs, IFIs, private and charitable organizations.
173
What is the primary reason why developing states cannot eliminate disease?
The vicious cycle of poverty, disease, and political instability.
174
Where can we two sources of health in the UN Charter and Human Rights Declaration
Art. 55 - UN Charter UN shall promote health
Art. 25.1 ‘everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services.’
