Unit 1

Question 1

What is Public International Law?

Answer 1

The legal order which is meant to structure the interaction between entities participating in and shaping international relations.

Question 2

Principal characteristics of domestic law

Answer 2

It’s organized in a vertical system, where there is a recognized body to create the law (legislate), a hierarchy of courts with compulsory jurisdiction to settle disputes, and an accepted system of enforcing those laws.

Question 2

Principal characteristics of domestic law

Answer 2

It’s organized in a vertical system, where there is a recognized body to create the law (legislate), a hierarchy of courts with compulsory jurisdiction to settle disputes and an accepted system to enforce those laws.

Question 3

Characteristics of international law that makes it different from domestic law

Answer 3

It’s organized in a horizontal system, which means that even when there are sources of law, the States are formally equal, therefore there’s no legislature, system of courts, or governing authority. And there’s a choice to participate in treaties, but no identifiable institution to establish rules or punish those who break them.

Question 4

Why do we need IL?

Answer 4

Facilitate cooperation and control the conduct

Question 5

Who are the subjects of IL?

Answer 5

The entities capable of possessing (and exercising)
rights and duties under IL. They can have different levels of personality.

Question 6

What are the main capacities of the subjects of IL?

Answer 6

1. Can make claims before international tribunals to vindicate rights given by IL.
2. Subject to obligations imposed by IL.
3. Power to make valid international agreements.
4. Enjoy immunity from the jurisdiction of other States’ courts.

Question 7

What subjects have an original personality?

Answer 7

States. They are the most important subjects of IL.

Question 8

When does an entity qualify as State?

Answer 8

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 the Montevideo Convention on the Rights and Duties of States (1933)

Question 9

Characteristics of the population to be considered State:

Answer 9

It doesn’t matter how the population got there, or how it multiplies itself, whether it’s big or small.

Question 10

Characteristics of the territory to be considered State:

Answer 10

The only important criterion is the existence of a core territory. Even if the boundaries remain disputed, are small, or aren’t contiguous.

Question 11

Characteristics of the government to be considered State:

Answer 11

The form doesn’t matter. As long as it is an organized political authority that can exercise effective power over a territorial community.

Question 12

What does it mean “capacity to enter into relations with the other States”?

Answer 12

To have formal independence. This can be only if the State is not under the lawful sovereignty of another one. There’s a difference between formal and actual independence, for example Puppet States, even if they have formal independence, they can’t exist without help of another State, therefore, don’t have actual independence.

Question 13

5 Characteristics of statehood

Answer 13

1. Competence to perform acts, make treaties, etc., internationally.
2. As long as they don’t accept a limitation, have exclusive competence with respect to their internal affairs (Domestic jurisdiction). Art. 2(7) UN charter.
3. Aren’t subject to compulsory international process, jurisdiction or settlement without their consent.
4. Art 2 (1) UN Charter: are formally equal. Principle of sovereign equality.
5. Derogations of the principles above can’t be presumed (unless there’s an international rule binding a State which came from its own expression to be bound, the State isn’t bound).

Question 14

What does recognition mean?

Answer 14

This means that the State that is recognizing, accepts the other State’s entitlement to exercise all the capacities of statehood in international law.

Question 15

How can a State be recognized?

Answer 15

Express recognition: formal pronouncement, official letter, statement, or opening of full diplomatic relations and international relations with the State in question.
Implied recognition: voting in favor of a State’s admission to the UN, since Art 4. UN Charter expresses that membership is open to all other states.

Question 16

Theories of recognition

Answer 16

1. Constitutive Theory: if the entity is not recognized as a state, then it is not. (Here recognition is clearly a political issue, how many subjects and which ones have to recognize it?)
2. Declaratory Theory: An entity is a state if meets the criteria of territory, population, government, and capacity to enter into relations with others. (Art 3. Montevideo Convention: The political existence of the state is independent of recognition by the other states)

Question 17

Effects of recognition under IL

Answer 17

1. Estoppel: the legal principle that prevents a state from contradicting what they previously agreed by law.
   Art. 6 Montevideo Convention: Once a State recognizes another, can’t be contradictory in its statement and deny it.
2. Premature recognition: Before having effectiveness, others’ recognition may help them become a State.

Question 18

Effects of recognition under National Law

Answer 18

-Inability to claim immunity from jurisdiction/execution.
-Inability to sue in its own name.
-Its law/administrative acts won’t be considered valid.

Question 19

When determining whether a (new) entity is a State, are legality considerations as important as effectiveness and formal independence?

Answer 19

Issues such as the illegal use of armed force by another State have ambiguous practices, and in the case of secession considering the principles of efectiveness vs legality and territorial integrity, as well as self-determination, what matters under IL is Effectiveness.
In the Kosovo case, ICJ: Imposes that legality matters, and we can consider a State if it’s born in a legal way, and there’s no rule prohibiting secession (although without violating any act, doesn’t mean it’s a right). Territorial integrity only applies between States (when are being attacked). The principle of self-determination not always applies.

Question 20

What subjects of IL have derived personality?

Answer 20

Non-State Actors

Question 21

Examples of subjects of IL with derived personality

Answer 21

-Peoples (Limited personality: not generally considered, unless they are represented by a National Liberation Movement fighting for self-determination, against colonial domination, alien occupation, and racist regimes).
-Insurgents (Limited personality: certain rules apply when a rebel movement gains de facto control of a territory and reaches a certain degree of intensity, recognition of the Libyan National Transitional Council).
-The Holy See (Which is different from the Vatican City. Has legal personality sui generis, and it’s a traditional subject, independently of their territorial basis).
-International Organizations (Entities with constitutional basis and will of its own, meaning: 1. Established by a treaty or other instrument governed by IL and 2. Capable of generating through their organs an autonomous will distinct from the will of their members (will attributable to the organization alone: Competent with other organizations) which arises from agreement or practice).
-Individuals (Still a debate, but have limited personality since they have international protection (Human Rights) and by their obligations (Criminal Law)).
-The Sovereign Order of Malta (before a military and medical association, now a humanitarian organization with limited personality, traditional subject).
-International Committee of the Red Cross (Based on the Geneva Convention of 1949 its activities are mandated by States, therefore, is the exceptional case of the NGOs that is subject of IL, since normally the NGOs are established under national law. Its personality has the only degree required to carry out its mandate).

Question 22

Principle of Self-Determination

Answer 22

Groups have the right to determine for themselves how they wish to be politically organized. Is a well-established rule of customary international law, refered by te ICJ as an erga omnes principle, and arguably a jus cogens rule. Not all “peoples” hold the right, since there’s only an external self-determination (from external interference), only peoples fighting against colonial domination, allien occupation and racist regimes.
Art. 1 UN Charter: The Purposes of the UN are:… to develop friendly relations among nations based on respect for the principle or equal rights and self- determination of peoples… and
Art. 73 UN Charter: talks about the obligations of the members that are administering territories whose people hasn’t yet attained a full measure of self-government…
-UNGA Resolution 1514 about the Declaration of Independence of Colonial Countries and Peoples declares the right to self-determination.
-And UNGA Resolution 1541 about the Principles guiding Members in determing the obligations under Art. 73 of UN Charter: explains how and when the self-government can be reached; independence, free association or, Integration with an independent State.

Question 23

Sources of International Law

Answer 23

These are the recognized and accepted methods by which legal rules come into existence, the origin of a valid legal rule within a particular legal system. There are two types: formal sources that create the law, and material sources that identify the law. Art. 38 of the Statute of the International Court of Justice describes the main sources: Conventions, Custom, General Principles, and judicial decisions as well as the teachings of the most highly qualified publicists as a subsidiary way to determine the rules that apply in certain situations.

Question 24

What is International Customary Law?

Answer 24

Rules and process: On one hand, concerns the process through which certain rules are formed, and on the other, the rules formed through that process. It is unwritten law deriving from practice accepted as law. Something important is that customary Law binds all States, for this reason, it’s different from treaties, since there’s no written law that States are accepting to be bound by. The International Law Commission, established by the UNGA, is a body of experts responsible for the codification and development of IL, their outcomes are draft conclusions on the identification of customary IL. In order to determine the existence of a rule of customary IL the two elements to consider are -PRACTICE (objective element) AND -“OPINIO JURIS” (acceptance of such practice / subjective element).
Practice: of States and sometimes of international organizations but the conduct of other actors isn’t considered practice but may be relevant. State practice whether in the exercise of its 3 powers or other functions. There’s no hierarchy among the various forms of practice, which could be in form of physical and verbal acts, whether written or oral, or even inaction in certain circumstances. It’s not limited to diplomatic acts, adoptions, and implementation of resolutions, conduct related to treaties, legislative and administrative acts, and decisions of national courts.
But practice must be general (sufficiently widespread and representative) and consistent.
Opinio Juris: means that the practice must be undertaken with a sense of legal right or obligation, it’s not carried out because the state thinks it’s a wrongdoing, but because they believe it’s a customary rule. The evidence of this acceptance can be public statements, official publications, government legal opinions, decisions of national courts, treaty provisions, and conduct with resolutions adopted. And if they didn’t react to practice when they could, may mean they didn’t consider that practice unlawful, therefore, accept it.

Question 25

General Principles of Law as a source of IL

Answer 25

These are the principles existing across a broad range of legal systems, traditions, and regions, meaning the principles common in domestic law systems. For example the principle of res judicata, which is applied to the sentence that puts an end to a legal case, without the possibility of being reformed, which constitutes it in a final and irrevocable sentence.
Regarding general principles of International Law, are not clear, some may even say they don’t believe there are any.

Question 26

Others sources of IL

Answer 26

Other sources as the judicial decisions of courts and teachings of the most highly qualified publicist of various nations are not formal sources, just subsidiary means that help to identify instead of creating rules of law.
Apart from the Art 38 of the ICJ Statute, other sources can be the Unilateral Acts of States where the subject is binding itself, and the Binding Resolutions of International Organizations… meaning the resolutions of the UN Security Council.

Question 27

What is the hierarchy of norms?

Answer 27

In international law, the hierarchy of sources can seem more horizontal than in domestic law, since one matter can be regulated by many rules. For this, there are conflict resolution principles 1) The special norm shall prevail over the general standard. 2) The latter norm overrides the prior one. 3) The specific norm is over the latter one.

Question 28

What is a “jus cogens norm”?

Answer 28

Hierarchically these are norms superior to ordinary norms. Are general (applicable to all States), accepted and recognized as peremptory by the international community, non-derogable, and are only modified by others of the same character. Examples are the prohibition on genocide and prohibition on torture.

Question 29

Treaties as a source of IL

Answer 29

Treaties in IL are international agreements governed by IL, that can be between two or more subjects of IL recognized as having treaty-making capacity: one and more states, a state, and an international organization, or international organizations.
The Vienna Convention on the Law of Treaties 1969 (entered into force in 1980), and the Vienna Convention on the Law of treaties between States and international organizations or between IOs are the treaties of treaties, meaning that are the set of rules regulating the creation, operation, and termination of treaties. The VCLT governs only written treaties between States, but all other treaties not governed by this and the VCLTIO, are governed by customary international law.

Question 30

Reservations in Treaties

Answer 30

Since the States can’t be forced to follow certain provisions or act, a reservation is an unilateral act of a State, given its consent to be part of the treaty, but modifiyin or excluding an obligation. In the case of bilateral treaties there are not reservations, since both parties have to agree on everything, otherwise it woulnd’t be an agreement. Meanwhile in multilateral treaties, such as Genocide Convention, there’s an interest to have the largest possible participation, and reservations can be accepted when the participation of a State is meaningful. Can only be presented in the key moments, in other words, when the state is signing, ratifying or accessing. Treaties can prohibit reservations, or just accept them regarding certain obigations, if it isn’t specified, then can be accepted unless are imcompatible with the object and purpose of the treaty. States can object the reservation of another, which doesn’t mean affects the entry into force between them, unless the State express that “doesn’t consider that State part of the treaty, and therefore the whole treaty is not in force beetween them”.

Question 31

Interpretation of Treaties

Answer 31

Some treaties are too vague, the interpretation allows to determine the true meaning and scope of its terms. Textually shall be interpreted in accordance with ordinary meaning of terms, the principle of integration indicates the meaning must emerge in the context of the treaty as a whole, also to be consider is the subsequent agreements, practice and other relevants rules of IL.

Question 32

Important terms of the law of treaties

Answer 32

Authority to conclude a treaty: any person producing appropriate full powers (document given a representative the authority by a State), or other persons that don’t need to produce full powers: heads of State, heads of government and minister for foreign affairs, heads of diplomatic missions, or other representatives accredited by States.
Modes of consent: can be with the exchange of instruments constituting a treaty, a signature (it doesn’t mean much, unless the traty says it, has no legal effect, isn’t binding yet), ratification (process through wich the competent authorities whithin a state, usually a legislature, express to be bound), acceptance, approval or accession (a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification, usually occurs after the treaty has entered into force), or any other mode indicated by the treaty. Then it occurs the exchange (bilateral treaties) or deposit (multilateral treaties) of instruments of the ratification.
Entry into force: the moment in which the traty become obligatory for the States parties, it comes in such manner and upon such date as it may provide or the States agreed, sometimes it depends on the number of States that have ratified, or a time after the ratification. Whithin this period, even if the treaty hasn’t yet entered into force, the States have the obligation to not defeat the purpose and object of it.
Pacta sunt servanda: States parties bound by the treaty once entered into force, must be performed by them in good faith. Also the states can’t justify the breach of a rule of IL with their internal law, that would be acting in bad faith.

Question 33

How can a treaty be invalidated?

Answer 33

Invalidity: when a treaty is void, doesn’t produce any legal effect, as if it never existed. This happens when:
1) Are violations of internal law regarding the competence to conclude treaties that are manifest (which has to be evident for any State. For example, if State N signs a treaty with C and after N argues that was signed by his president who didn’t have the competence for that, it wouldn’t be invalid because C didn’t know about that internal norm) -This has also to be with the principle that States can’t justify their breach of a norm with their domestic law.
2) Defects of authority: the representative to express consent has been subject to a specific restriction, and this has been notified before his expression.
3) Error: facts or situations assumed by the time the treaty was concluded, and the State didn’t contribute to this error or couldn’t know about it.
4) Fraud: fraudulent conduct or corruption.
5) Coercion of a State’s representatives (threats).
6) Coercion of a State by the threat or use of force.
7) There’s a conflict with a Jus Cogens norm: if the time of its conclusion, it conflicts with a peremptory norm of general IL, for example, a treaty where the States enslave people.

Question 34

Termination of treaties

Answer 34

It no longer generates legal effects, the States are released from any obligation to perform it, but what they did prior is not affected.
By consent:
1) Provisions of the treaty: the treaty has a clause determining the date or event that terminates it.
2) Consent of all the parties: at any time they meet and decide it.
3) Conclusion of a later treaty on the same matter: the parties agree on whether the new treaty should regulate the matter, or the provisions are totally different and that is impossible to comply with both.
External grounds:
4) Material breach: when there’s a repudiation of the treaty or a violation of an essential provision to accomplish the purpose or object of the treaty. The State victim can solicit the termination, in multilateral treaties can agree if the treaty ends the whole treaty, or just respect the State that violated it.
5) Impossibility of performance: resulting from a permanent disappearance or destruction of an object indispensable for the execution.
6) Exists a fundamental change of circumstances and this change wasn’t foreseen before, only if those constitute an essential basis or transform the obligations.
Further:
7) As in invalidity, in this case, if there’s an inconsistency with a new jus cogens norm, the treaty becomes void and terminates.

Question 35

Grounds for suspension of a treaty

Answer 35

The parties decide to release from any mutual obligations temporarily. Are the same grounds for termination (except jus cogens ofc).