Subjects of International Public Law Flashcards
Are certain activities of the country X legitimate under public international law?
Art. 2 para. 4 UN Charter prohibits the threat or use of force of a UN member state in its international relations against the territorial integrity or political independence of any state.
The term “force” refers solely to armed military force.
However, the principle of the non-use of force not only prohibits the direct use of force, but also the participation of a state in the use of force, by another state or by private individuals, against or in the territory of another state (indirect use of force). In particular the participation in forcible acts committed by unofficial bands, mercenaries, or rebels can fall under the prohibition.
However, the prohibition against the use or threat of force of Art. 2 para. 4 UN Charter is subject to the inherent right of individual or collective self-defence as provided in Art. 51 UN Charter.
–> see requirements for self-defence
What are the preconditions for self-defence?
Three preconditions must be fulfilled to accept a right to self-defence:
1. There must be an armed attack, i.e. a grave incident of armed force;
2. Measures of self-defence may only be directed against a state who is responsible for the armed attack, i.e. to whom the latter can be legally attributed;
3. Any act of self-defence can only be legal under international law if it observes the conditions of necessity and proportionality.
What are the conditions for a collective security measure under chapter VII of the UN Charter?
According to Art. 39 UN Charter, UN Security Council shall determine the existence of any threat of peace, a breach of peace, or an act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Art. 41 and Art. 42 to maintain or restore international peace and security.
The term “threat to the peace” not only includes conflicts among states, but also internal conflicts where there is a plausible concern that their continuation might lead to regional or international escalation.
The term “act of aggression” refers to the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the UN Charter.
Will the United Nations Organization decide collective security measures under chapter VII of the UN Charter?
The Security Council is able to make recommendations and decide on collective security measures under chapter VII according to Art. 39 UN Charter. The Security Council consists of 15 member states. China, France, Russia, The United Kingdom and the Unites States are the five permanent members.
According to Art. 27 para. 3 UN Charter [1 Point], decisions of the Security Council on non procedural matters shall be made by an affirmative vote of seven members including the concurring votes of the permanent members.
- The UNSC may make recommendations or decide on measures not involving the use of
force (Art. 41 UN Charter), such as arms embargo, or
comprehensive economic sanctions.
- If these measures would be inadequate, it may take measures involving the use of force (Art. 42 UN Charter), such as operations by air, sea or
land forces.
I.c. the United States support the Contras in their rebellions against Nicaragua. Therefore, it is highly likely that the United States would vote against collective security measures in Nicaragua. As the United States is a permanent member, no decision can be made on a collective security measure under chapter VII.
What are the different legally recognized ways for states to settle their disputes?
According to Art. 2 para. 3 UN Charter , all states shall settle their disputes
by peaceful means.
- The peaceful methods of dispute resolution settlement are listed in Art. 33 UN Charter. Diplomatic or non-judicial methods of dispute settlement and judicial methods of dispute settlement may be distinguished.
- The diplomatic methods of dispute resolution include negotiation, mediation and good offices, enquiry, conciliation, resort to regional agencies or arrangements, and other
peaceful means of the states’ choice.
- Judicial methods of dispute settlement encompass arbitration and
adjudication by courts.
Is X a subject of public international law? (X is a self-declared country)
To be qualified as a state, four requirements need to be fulfilled according to Art. 1 Montevideo Convention:
1. The state must have a permanent population; In the case at hand, X has a permanent number of people which are considered to
be the inhabitants of the territory
2. The state must have a defined territory: In the case at hand, X has a physical existence. It is not necessary that all borders are completely certain. The fact that some borders of X are still contested does not af-
fect its status as a state.
3. The state must have an entity to function as a member of international law, namely an effective government. However, this criterion does not mean that the government
must be entirely dominant within the territory, so long as it is capable of controlling the affairs
of the state in the international community
4. The capacity to enter into legal relations with other states: X is not a member in any international organization. It is not active on the international plane and does not have official diplomatic relationships with any other state (the ne-
gotiations and the skirmishes with Otherstate do not constitute official diplomatic relationships).
What is the principle of sovereign equality of states?
The principle of sovereign equality of states is stipulated in Art. 2 para. 1 UN Charter. The principle of sovereign equality refers to legal equality, territorial integrity and political independence of all mem- ber states.
Sovereignty requires that states may exercise their own will without subordination to a different state. This especially means that states do not have to tolerate any inference by other states unless there is a valid foundation in international law.
When are measures taken by the UN Security Council legitimate?
According to Art. 39 UN Charter, the UN Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security.
First, it has to be established if a threat to the peace is given. A threat to the peace may include disputes among states, internal conflicts, widespread deprivations of human rights, humanitarian disasters, and serious threats to democratic governments.
It is then up to the UN Security Council to decide whether non-forcible measures are sufficient or instead forcible measures are necessary.
Art. 41 UN Charter authorizes the UN Security Council to take non-forcible measures, such as the interruption of economic relations, rail, sea, air, postal and telegraphic, radio and other means of communication, and the severance of diplomatic relations.
To conclude, the UN Security Council is authorized to pass the measures.
May Country X refrain from participating in the measures taken by the UN Security Council?
According to Art. 48 UN Charter, all members of the United Nations have agreed to carry out the decisions of the Security Council for the maintenance of international peace and security. (Alterna- tively: According to Art. 25 UN Charter). All UN member states thus have to participate in economic sanctions adopted by the United Nations Security Council.
Does the use of force against its own people in Country X fall under the prohibition of use of force in the UN Charter?
Art. 2 para. 4 UN Charter prohibits the use of force solely in the international relations between states and, hence, does not apply to the internal use of military force.
In the case at hand, the military tries to stop an internal uprising. This use of internal force is
not prohibited by Art. 2 para. 4 UN Charter.
Under which conditions can an international organisation be qualified as a subject of public international law?
International organizations are considered as subjects of public international law if they meet
four requirements:
1. It is an entity established and governed by an international agreement.
2. The agreement is concluded between subjects of international law.
3. The entity aims at fulfilling tasks in the common interest.
4. The entity has its own organs.
Which are the main capacities of subjects of public international law?
The main capacities of a subject of international law are:
* The ability to make claims before international tribunals in order to vindicate rights given by international law
* To be subject to some or all of the obligations imposed by international law
- To have the power to make valid international agreements binding under interna-
tional law - To enjoy some or all of the immunities from the jurisdiction of other states’ na-
tional courts
