Public International Law Units 4-6 Flashcards
1
Q
What is the principle of permanent sovereignty over natural resources?
A
States have the right to control their own resources for national development and well-being, as per UNGA Res 1803 and ICCPR Article 1. They must not be deprived of these resources.
2
Q
What does the ‘No Harm Principle’ mean in international law?
A
States must ensure activities within their territory do not harm other states (e.g., pollution). They must act with ‘due diligence’ to prevent or minimize transboundary harm (e.g., Pulp Mills, Corfu Channel).
3
Q
What does the duty of cooperation involve (Nuclear Tests, ILC Draft Articles)?
A
States must act in good faith and work with others, including international organizations, to prevent transboundary harm and manage shared resources.
4
Q
What is the Common Heritage of Mankind principle?
A
Some spaces (e.g., the deep seabed) and cultural/natural heritage should benefit all humanity, not just individual states. States cannot claim sovereignty over such areas.
5
Q
What are the main ways to acquire territory?
A
Original Title
Transfer by Agreement
Transfer by Conduct (e.g., acquiescence or estoppel)
6
Q
What is the role of ‘effectivités’ in territorial claims?
A
Evidence of effective control and intention to act as sovereign. Can support a territorial claim where legal title is weak or unclear.
7
Q
What counts as a state’s ‘territory’ under international law?
A
Land territory, internal waters, territorial sea (UNCLOS Art. 2), and airspace above (Chicago Convention Art. 1 & UNCLOS Art. 2).
8
Q
What is the key principle in UNCLOS about the relationship between land and sea?
A
“Land dominates the sea” – rights over maritime zones are derived from sovereignty over land territory.
9
Q
Is the USA a party to UNCLOS?
A
No, despite helping negotiate it, political resistance prevented the US from joining.
10
Q
What are the main maritime zones under UNCLOS?
A
Territorial Sea, Exclusive Economic Zone (EEZ), High Seas, Continental Shelf, and the Area.
11
Q
What is the Territorial Sea and its extent?
A
Area of full sovereignty extending 12 nautical miles (nm) from the baseline.
12
Q
What is the EEZ and how far does it extend?
A
Up to 200nm from the baseline; states have sovereign rights over economic activities like fishing and energy.
13
Q
What are the High Seas?
A
Areas beyond national jurisdiction, starting after the EEZ (or territorial sea if no EEZ declared).
14
Q
What is the role of baselines in maritime delimitation?
A
Maritime zones are measured from baselines, normally the low-water line along the coast (Art. 5 UNCLOS).
15
Q
What is the Continental Shelf under UNCLOS?
A
The seabed/subsoil extending to the natural prolongation of land territory or at least 200nm.
16
Q
What is the “Area” in maritime law?
A
The deep seabed beyond national jurisdiction; regulated by the International Seabed Authority.
17
Q
Can baselines move with the coast?
A
Controversial – some argue for fixed baselines despite sea level rise; UNCLOS Article 5 implies movement.
18
Q
How is the continental shelf’s outer limit determined?
A
Either up to 200nm from baselines or to the end of the natural prolongation.
19
Q
What are a state’s rights in the Territorial Sea?
A
Full sovereignty but subject to the right of innocent passage for foreign ships.
20
Q
What is “innocent passage”?
A
Non-threatening, continuous passage through territorial seas, not prejudicial to coastal state peace/order.
21
Q
What is the Contiguous Zone?
A
Zone up to 24nm where a state can enforce laws related to customs, immigration, and pollution.
22
Q
Who regulates ships on the High Seas?
A
The flag state – it has jurisdiction over its vessels unless exceptions apply (e.g., piracy).
23
Q
What rights do states have over the continental shelf?
A
Exclusive rights to explore and exploit natural resources – no other state may do so without consent.
24
Q
What is the legal status of the Area’s resources?
A
“Common heritage of mankind” – cannot be appropriated; managed by the International Seabed Authority.
25
What are the main sources of regulation in Outer Space?
A mix of soft law (e.g. resolutions, guidelines) and hard law (binding treaties like the Outer Space Treaty).
26
What is the main treaty governing Outer Space?
The Outer Space Treaty (1967).
27
What is the US position on new space law?
Prefers soft law (e.g. Artemis Accords 2021) to maintain flexibility for innovation and private enterprise.
28
What does Article I of the Outer Space Treaty state?
Space exploration must benefit all countries and is the province of all mankind.
29
What does Article II of the Outer Space Treaty prohibit?
National appropriation of outer space, including the Moon and other celestial bodies.
30
What does Article VIII of the Outer Space Treaty provide?
States have jurisdiction over space objects they register, similar to a flag state principle.
31
What are the limitations of the Moon Treaty (1979)?
Only 17 parties, mostly states unlikely to exploit the Moon. Major space powers are not parties.
32
What is the ICJ’s view on environmental protection (Nuclear Weapons Advisory Opinion)?
States must ensure activities within their jurisdiction do not harm the environment of other states or areas beyond national control.
33
What does the Stockholm Declaration (1972) emphasise?
Environmental protection for present and future generations; states have rights but also responsibilities.
34
What is Principle 2 of the Stockholm Declaration?
States must safeguard the Earth's natural resources for future generations.
35
What is Principle 21 of the Stockholm Declaration?
States have sovereign rights to exploit resources, but must avoid causing transboundary environmental harm.
36
What is Principle 24 of the Stockholm Declaration?
States should cooperate via multilateral or bilateral means to control environmental harm.
37
What are some key general principles of international environmental law?
Duty to protect
Duty to prevent
Duty to cooperate
Common but differentiated responsibilities
38
What is "environment as a common concern of humankind"?
Not a binding rule, but reflects a shared interest in protecting the environment found in many treaty preambles.
39
What tension exists in environmental law?
Between state sovereignty to use resources and the global duty to protect the environment.
40
What is the difference between jurisdiction and immunity in international law?
Jurisdiction is the authority to exercise power over persons or conduct, while immunity is a procedural bar that prevents the exercise of that authority even when jurisdiction exists.
41
What are the three types of jurisdiction a state may exercise?
Prescriptive – making laws applicable to persons or conduct.
Adjudicative – applying laws through courts.
Enforcement – physically enforcing laws.
42
How does civil/private law differ from criminal/public law in international jurisdiction?
Civil/private law often allows for foreign laws to be applied under "choice of law" rules. Criminal/public law is generally not enforced across borders due to territorial limitations.
43
What is prescriptive jurisdiction?
The authority of a state to apply its laws to persons or conduct, regardless of where it occurs.
44
What were the two views on prescriptive jurisdiction in the SS Lotus case?
States may prescribe laws unless international law prohibits it.
States may only prescribe laws if international law permits it.
45
What was the outcome of the SS Lotus case?
The PCIJ held that states have discretion in prescribing laws unless prohibited by international law, but left ambiguity about the scope of criminal jurisdiction.
46
What is territorial jurisdiction?
The right to prescribe laws for crimes committed within a state’s territory. Includes:
Subjective territoriality: crime starts in-state.
Objective territoriality: effects of crime occur in-state.
47
What is the nationality principle?
A state may exercise jurisdiction over its nationals for crimes committed abroad. This includes both individuals and corporations (e.g. Barcelona Traction case).
48
What is the protective principle?
Allows a state to criminalise acts abroad by foreigners if those acts threaten its fundamental interests (e.g. counterfeiting currency, terrorism).
49
What is the passive personality principle?
A state asserts jurisdiction for crimes committed abroad against its nationals. Increasingly accepted, especially for terrorism or torture (e.g. CAT Art 5(1)(c)).
50
What is the effects doctrine in jurisdiction?
Jurisdiction based on harmful economic effects occurring in a state, even if conduct occurred abroad (e.g. US antitrust law, Alcoa doctrine).
51
What is universal jurisdiction?
Jurisdiction over certain crimes regardless of where they occurred or who committed them, based on their seriousness (e.g. piracy, torture, war crimes).
52
How does customary international law relate to universal jurisdiction?
Some crimes (e.g. piracy) are universally recognised under customary law, allowing any state to prosecute regardless of nationality or location.
53
What crimes are generally recognised under customary international law as subject to universal jurisdiction?
Piracy, slave trade, and international crimes (e.g. war crimes, crimes against humanity, genocide).
54
Does UNCLOS Article 99 prevent universal jurisdiction over slavery?
No; it obliges the flag state to act but does not preclude others from exercising universal jurisdiction.
55
What was held in Attorney-General v Eichmann?
Jurisdiction to try crimes under international law is universal.
56
What limitation did Arrest Warrant Sep Op Guillaume argue?
That universal jurisdiction is not accepted where neither the crime occurred in the state nor the offender is present.
57
What is the argument for a hierarchy of jurisdictions?
erritorial and nationality jurisdiction should take precedence over universal jurisdiction.
58
What did the Arrest Warrant Joint Sep Op say about universal jurisdiction?
It should be subsidiary; states should offer extradition first.
however, no hierarchy.
59
What does the Tokyo Convention 1963 Art 3 establish?
The flag state has jurisdiction over crimes committed on aircraft.
60
What is enforcement jurisdiction?
The ability of a state to enforce its laws (e.g. arrest, seize property).
61
When can extraterritorial enforcement occur?
By consent (e.g. UK police in Germany for the World Cup)
Over prisoners of war (GC III)
In occupied territory (GC IV)
62
Is there a general duty in international law to extradite?
No. States are only bound by treaties they’ve agreed to.
62
What is the principle of sovereign equality in the context of jurisdiction and immunity
States are immune from jurisdiction of other states’ courts.
raises tension between territorial sovereignty and sovereign equality.
63
What did the ICJ say in the CAT case?
Article 7 creates a duty to prosecute, but not a duty to extradite.
64
What’s the difference between immunity from jurisdiction and enforcement?
One prevents court proceedings; the other prevents seizure of assets.
65
Does state immunity apply in international courts?
No. It applies to national courts only, not international ones.
66
What is absolute immunity?
Complete immunity from all proceedings, even for commercial acts (Parlement Belge).
67
What is restrictive immunity?
Immunity only for governmental acts (jure imperii), not for commercial acts (jure gestionis).
68
Do state-owned entities get immunity?
Not automatically. Only if they exercise sovereign authority.
SIA 1978 s.14(2)
69
What’s the general rule on enforcement immunity?
States and state property are immune from enforcement
70
What are the exceptions to enforcement immunity?
Express waiver
Property earmarked for satisfying a claim
Property not used for governmental purposes (e.g. cultural or commercial)
70
What is personal immunity (ratione personae)?
Immunity based on the status of the individual, covering all acts, public and private.
71
What is functional immunity (ratione materiae)?
Immunity based on official acts carried out on behalf of the State.
72
How do the two types differ in scope?
Personal immunity is broader, covering all acts.
Functional immunity covers only official acts.
73
What did the ICJ decide in Arrest Warrant?
That Mr Yerodia (foreign minister) had personal immunity as a Foreign Minister, regardless of the nature of the acts.
74
What does ILC Draft Article 6 say about functional immunity?
Applies only to official acts.
Continues after leaving office.
Applies to those who previously held personal immunity.
75
Who enjoys personal immunity under customary international law?
Head of State
Head of Government
Minister for Foreign Affairs
(Also Diplomatic/Consular Agents, under treaties)
76
What case questioned functional immunity for international crimes?
Pinochet (No. 3) — UKHL held Pinochet not immune ratione materiae.
Torture violates a jus cogens norm.
Torture cannot be an official act.
States under CAT must have implicitly waived immunity.
76
What does ILC Draft Article 4 (2022) say about personal immunity?
Covers all acts, including those before taking office.
Applies only while in office (see Pinochet No. 3).
After leaving office, officials may claim functional immunity.
77
How did the ICJ respond in Arrest Warrant to implied waiver arguments?
Treaty obligations to prosecute do not override customary rules of immunity ([59]).
78
Is there an international crimes exception to personal immunity?
No — confirmed in Arrest Warrant: even for serious crimes, personal immunity applies ([58]–[61]).
79
What did the ECtHR say in Jones v UK?
As of 2012, no jus cogens exception to state immunity had crystallised under customary international law ([198]).
80
What Is a Reservation?
A reservation is:
A unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.
(VCLT Article 2(1)(d))
81
When Are Reservations Permitted? — Article 19
A reservation is permitted unless:
(a) The reservation is prohibited by the treaty;
📌 E.g., Some treaties explicitly ban reservations altogether (often human rights treaties).
(b) The treaty allows only specific reservations, and the reservation is not among them;
📌 E.g., A treaty might say, “States may only reserve Article 5,” so a reservation to Article 6 would be impermissible.
(c) The reservation is incompatible with the object and purpose of the treaty;
🧠 This is the key test for human rights treaties.
📍 This is known as the compatibility test.
82
Reservation Examples?
❌ General Comment No.
24 (UN Human Rights Committee):
Said reservations that go against core provisions of the ICCPR (e.g., prohibition of torture) violate the object and purpose.
✅ Belilos v Switzerland (ECtHR, 1988):
A declaration labelled as a “reservation” was found invalid because it undermined the treaty’s supervisory system.
❌ Loizidou v Turkey (ECtHR, 1995):
Turkey's reservation to the ECtHR's jurisdiction was held impermissible as it went to the essence of the Court's role.
83
What Happens If a Reservation Is Objected To? — Articles 20–21
When another State objects to a reservation, there are two outcomes:
(a) Objection but treaty relations still apply (default rule)
The treaty is still in force between the reserving and objecting State, but the part affected by the reservation doesn’t apply.
📘 This is the default rule under Article 21(1)(b).
(b) Objection + intent to exclude treaty relations altogether
If the objecting State explicitly states it does not wish to be bound by the treaty in relation to the reserving State, no treaty relations arise between the two on the basis of Article 20(4)(b).
84
Timing: When Must a Reservation Be Made? — Article 19 & 23
A reservation must be made at the time of expressing consent to be bound by the treaty (e.g., ratification).
Later reservations are not valid unless all other parties agree (amendment or renegotiation).
85
Withdrawal & Modification of Reservations — Article 22
A State may withdraw a reservation at any time.
Withdrawal of an objection to a reservation is also allowed.
Unless the treaty provides otherwise, notification is needed, and takes effect upon receipt by other parties.
86
Reservations to the Genocide Convention (Advisory Opinion, ICJ 1951)
ICJ set out the "object and purpose" test, even before the VCLT existed.
Said not all States need to accept a reservation for it to be valid — flexibility over unanimity.
87
What type of law does the VCLT primarily reflect?
Customary International Law (CIL)
88
What does Article 2(1)(a) VCLT define as a treaty?
A written international agreement between states governed by international law
89
Key distinction between treaties and MoUs?
Whether the agreement is governed by international law
binding agreements v non-binding agreements
90
What does the ICJ use to determine if an agreement is a treaty?
Objective approach – based on terms, conduct, and circumstances
Qatar v Bahrain (1994) – ICJ ruled signed commitments were binding regardless of subjective intent
91
What are the main ways a state expresses consent to be bound?
Signature, ratification, acceptance, approval, accession
92
What are “full powers”?
A document authorizing a person to act on behalf of the state (Art. 2(1)(c))
93
Can someone without full powers bind a state?
Yes, if state practice shows they are treated as a representative (Armed Activities case)
94
94
What did the UK do in the Rwanda MoU to avoid it being a treaty?
Explicitly stated in Paragraph 6 that it was non-binding
95
How did Kenya treat the MOU with Somalia?
Registered it with the UN – seen as binding; Somalia didn’t object for 5 years
96
What are the three approaches to treaty interpretation?
Objective: Focuses on the text, respecting the consent of the parties as reflected in the treaty.
Subjective: Focuses on the parties' intent, including the negotiating history.
Teleological: Focuses on the aim or purpose of the treaty, interpreting terms to achieve the treaty's overall goal.
97
What does Article 31 of the VCLT state about treaty interpretation?
A treaty shall be interpreted in good faith, based on the ordinary meaning of its terms, in context, and in light of its object and purpose. It combines both textualism and contextualism with a purposive element.
98
What does the context include for treaty interpretation under Article 31 of the VCLT?
The context includes:
The text, preamble, and annexes.
Any agreements or instruments made between the parties in connection with the treaty.
Subsequent agreements or practices that establish the parties' interpretation.
Relevant international law rules applicable between the parties.
99
What is the role of travaux préparatoires in treaty interpretation under Article 32 VCLT?
Travaux préparatoires (preparatory work) can be used to confirm the meaning derived from Article 31 or to resolve ambiguity or absurdity in the treaty's interpretation.
100
What does the context include for treaty interpretation under Article 31 of the VCLT?
The context includes:
The text, preamble, and annexes.
Any agreements or instruments made between the parties in connection with the treaty.
Subsequent agreements or practices that establish the parties' interpretation.
Relevant international law rules applicable between the parties.
101
What is the role of travaux préparatoires in treaty interpretation under Article 32 VCLT?
Travaux préparatoires (preparatory work) can be used to confirm the meaning derived from Article 31 or to resolve ambiguity or absurdity in the treaty's interpretation.
102
How did the courts approach objective vs. subjective intentions in treaty interpretation?
In Territorial Dispute (Libya/Chad), the court emphasized that interpretation must be based on the text of the treaty.
In Qatar/Bahrain, the court restricted reliance on travaux préparatoires, focusing on the actual terms.
Diss Op Schwebel criticized the court's disregard of preparatory materials, arguing that they clarified the parties' intentions.
103
How does the 'object and purpose' of a treaty affect its interpretation?
The object and purpose must be derived from the text of the treaty, not a broad general sense. For example, in Nicaragua v. USA, the court distinguished between acts unfriendly to the treaty's objectives and those that directly threaten its purpose.
In US–Shrimp (WTO), the court recognized that treaties can have multiple, sometimes conflicting, objects and purposes.
104
What is the significance of treaties as "living instruments" in international law?
reaties can evolve over time based on subsequent agreements or practices. This is evident in cases like Kasikili/Sedudu Island and Dispute Regarding Navigational Rights, where the treaty's application evolved through subsequent practices.
105
How should treaties be interpreted in light of other rules of international law under Article 31(3)(c)?
Treaties should be interpreted harmoniously with other rules of international law. However, too broad an application can lead to issues, as seen in Oil Platforms (USA v Iran), where the ICJ incorporated the law on the use of force into a commercial treaty, and Allegations of Genocide, where the ICJ refused to incorporate rules not directly relevant to the treaty at hand.
106
What does the principle of Pacta Tertiis (Article 34) state about third states in treaties?
A treaty does not create obligations or rights for a third state without its consent.
If a treaty creates obligations for third states, they must expressly consent in writing (Article 35).
The assent of third states is presumed for rights created by a treaty, unless stated otherwise.
