week 1 - states Flashcards

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1
Q

What is Law?

in a national legal system?

A

A body of rules controlled and organized by a central authority

It exists in an hierarchical system (officials on top, citizens on bottom)

Public law → constitutional, adm, crim, etc.
vs
Priv law → civil, commercial, etc.

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2
Q

What is Public International Law?

is it horizontal or vertical + why

A
  • Law made by states to guide their interactions with each other ==> primarily focuses on conduct of states

Horizontal system → No higher authority = no hierarchy = states are equal to each other

  • so its kinda a contractual system based on agreements => If there IS a higher authority, it only exists because states agreed on it
  • Not a centralized system → ‘self help’ system, which means Subjects (states) must create, interpret and enforce laws themselves
  • Supplements national law
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3
Q

What is NOT public international law?

A

private international law = the body of rules that regulates relations between persons and entities in different states

ex. Ur dutch and u marry guatemalan person and u buy property in UK and then u get divorced → what law do u use since now u have 3 dif rules

European law = a body of law developed in the EU

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4
Q

History - medieval Europe 15th century

(creation / development of international law)

A
  1. many sources of AUTH existed at the same time -> each had its own laws + regulations => let to legal pluralism

ex. King’s royal law binding on his subjects, Canon law binding on all catholics, Local law binding local citizens

  1. Impact of legal pluralism;
    Laws became confusing and often transcended legal boundaries

Ex. trade, diplomatic relations, maritime activities, navigation all required the same set of laws - dif laws made it difficult to settle disputes in these areas

  1. 2 legal concepts emerged to resolve this issue;

a) Ius gentium → law of the people / nations
Ex. customary rules regarding trade, taxation, etc.

b) Ius natural → law applicable everywhere to everyone
ex. Associated with idea of life, liberty, property

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5
Q

History - who was Francisco de Vittoria + what did he establish?

A
  • a Spanish philosopher in 16th century + one of the intr law fathers
  • Proponent (supporter) of Intr Law
  1. Developed concept of Just War Theory
  2. Believed intr law is rooted in natural law
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6
Q

Explain Just War Theory (according to Francisco de Vittoria)

A

A war can be justified for the proper moral reason (reason is rooted iun natural law)

=> his theory Indicates there are legitimate uses for war as well as set of moral boundaries

=> it had Large impact on international law + ethics + set stage for hugo grotius

criteria;
1. final aim = peace
2. must be fought for a just cause
2. Must be declared by a legitimate authority
3. Methods must be proportional to harm being inflicted
4. reasonable chance of success
5. non- combatans must be protected as much as possible

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7
Q

Explain why Francisco di Vittoria argued Intr law was rooted in natural law

A

Argued there were universal principles of justice + morality that should govern the behaviour of individuals and states, regardless of status or ethnicity, and should therefore guide actions in international relations

=> used this to critique Spanish + Portugese colonizers in the Americas - argued that the indigenous also had natural rights

=> in famouse “de indis” lectures - he questioned the legitimacy of spanish + protugese sovereignty in the lands they conquered

=> largely impacted development of intr law + HR

note:
- some colonial powers used intr law to justify colonialism

ex.
- doctrine of discovery = allowed european powers to claim sovereignty over land they ‘discovered’ bc non christian lands belonged to nobody

law of nations = legal princpiles that governed reltions between sovereign states -> info was interpreted + cherry picked to justify colonialism ex. ‘civilizing missions’

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8
Q

History - Hugo Grotius

(what did he do / concepts did he refine?)

A
  • 17th century (1538-1645)
  • the father of international law
  • He developed the idea that law may not only be given by nature (given by divine authority), but it can also be man-made
  • refined the concept of just war theory
  • refined the principle of the high seas
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9
Q

How did Hugo Grotius refine the concept of Just War Theory?

A
  • Justified war is necessary in order to decide who is wrong or right (since there is no higher authority) -> war solves conflicts
  • Basically said war is a substitute for a court, courts are substitutes for war (courts prevent war)
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10
Q

how did Hugo Grotius refine the principle of the high seas?

A

established a fundamental principle of maritime law = he viewed high sees as a common property of humankind

High seas = parts of the ocean that are not subject to the jurisdiction of any state

  • This principle allows states to navigate freely on the high seas without interference from coastal states
  • Coastal states have jurisdiction over their own **continental shelf **
  • The principle of enshrined in the** UN convention on the Law of the Sea**
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11
Q

History - peace of Westphalia

(when was it signed, what was it)

A
  • signed = 1648
  • Series of treaties marking the end of the 30 years war in Europe
  • Marks the transition from legal pluralism to legal monism (one single legal authority)
  • Shift from personal application of law (catholics bound to canon law, king law binding on his subjects) → into territorial application of law
  • This solidified the authority of the state within its borders + established the principle of territorial sovereignty
    = States became the most important political communities w/ ultimate authority over territories
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12
Q

History - era of positivism regarding international law

(18th - 19th century)

A

Positivism contributed to formation of principles emphasizing sovereignty + equality of states

  • No state may interfere / intervene into affairs of another state or exercise jurisdiction over another state
  • International law is an explicitly horizontal legal order; no higher authority than a state
  • A state is only bound by a rule when they decide to be bound by a rule - nobody else can tell a state what to do
  • The only ultimate source of international law is the will of sovereign states

note;
positivism = knowledge can be gained through systematic observation, experimentation, and analysis

legal positivism = emphasizes the importance of written laws and rules as the basis of legal authority

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13
Q

History - post WWII evolution of international law

A
  1. Institutionalization of international law = led to establishment of intr law ex. UN
  2. Globalization = Increased interconnectedness + interdependence among states and individuals
    ex. Economic globalization, technological advancements, mass migration, etc.
  3. Complexity of international relations = New issues emerged; ex. Global health crises, environment, transnational terrorism, economic interdependence
    => To solve issue, collaboration was necessary
  4. expansion of law = New areas of law emerged
    ex. environmental law, counter-terrorism law, HR law, international economic law
  5. Shift towards collaboration between states = Addressed common problems + achieve shared goals
    => Thus, international law is NOT only about coexistence
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14
Q

What is an international legal personality?

A

Subjects posses international legal personality, which gives them legal agency to act on international playing field

2 requirements;
1. Capable of possessing international rights and duties
2. Capable of maintaining those rights by bringing international claims

! If u have legal personality u are a subject of international law !

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15
Q

What are the 2 requirements for something to be an international legal personality?

A
  1. Capable of possessing international rights and duties
  2. Capable of maintaining those rights by bringing international claims
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16
Q

What are subjects of international law?

A

bearers of rights and duties in a particular legal system (thus they possess a legal personality)

  • Have rights + obligations
  • Can make international claims → dispute settlements, resolve differences, can make claims against one another before the ICJ
  • Incur responsibility for breaches of international obligations → others can make claims against you
17
Q

EXAMPLES of subjects of international law

A
  1. State actors
    = Have the right to govern their own territory
  2. Non-state actors
    = only have an international legal personality bc states agreed that these entities / subjects should / could have it

a) International organizations
- Right to bring cases to ICJ
- Right to treaties
- Principle of Speciality: they only have jurisdiction amongst health sectors
ex. World health organization → only has jurisdiction amongst health sectors

b) Individuals
- Have the right to diplomatic protections
- Only have the rights + obligations which states allow them to have
- Rights = international HR, international economic law, law of armed conflict
- Obligations = criminal prosecutions of individuals

c) Peoples - there must be something that defines them as a group together
- Right to self determination
(indigenous peoples, national peoples, religious identity)

d) Multinational Corporations

e) Holy see

18
Q

principle of speciality

A

power of international organizations is limited to the objectives entrusted to them by member states

ex. WHO only has jurisdiction amongst health sectors

19
Q

domestic law vs international law

A

domestic:
- hierarchical system
- vertical system
- Individuals / organizations only have rights and duties (a legal personality) that the states allow them to have → they become subjects of international law BECAUSE states recognize them as such

international:
- horizontal system
- individuals create the institutions + recognize and accept these entities as subjects under national law

20
Q

What is a state?

=> define it + criteria

(include article)

A

Art. 1 Montevideo Convention
1. permanent population
- size of population doesnt matter, can be ethnically diverse, convention makes it unclear if nomadic ppl (travelers) are included

  1. defined territory
    - size does not matter, Precise boundaries are NOT required-> thus territorial disputes are quite common
    - If territory disappears (ex. Climate change) = the state ceases to exist
  2. government
    - Form of gov (republic v monarchy) and political regime (democracy v autocracy) is not important
    - gov doesnt have to be effective - it should be effective for newly emerging countries
  3. capacity to enter into relations with other states = legal independence
    - this criteria allows us to differentiate between other entities that have a permanent pop, defined territory, and a gov (otherwise, groningen would be considered a state)
21
Q

Does a state have to be recognized by other states in order for it to be considered an official state?

according to what article?

A

Recognition of a state by other states is not a requirement according to Art. 3 Montevideo convention

22
Q

2 main theories on recognition of other states

A
  1. Declaratory Theory
  2. Constitutive Theory
23
Q

Declaratory Theory

(what is it + limitation)

A
  • A state exists without formal recognition by other states
  • Through recognition, other states acknowledge the existence of a state (not recognizing it doesn’t mean it doesn’t exist tho)

Limitation; not being recognized can create issues
*declaratory view is dominant

24
Q

Constitutive Theory
(what is it + limitation)

A
  • A state is only a state IF it is recognized by other states - recognition is essential act that indicates statehood

Limitation; unclear guidelines / regulation, who has the power to make this decision

25
Q

Define International Organizations;

(3 criteria)

A
  1. Must be established by a treaty (or other instrument)
  2. Must be government by international law
  3. Must possess their own international legal personality
26
Q

How are international organizations dif from states?

esp in terms of the power they have - how do they get it?

A
  • Have limited power → have only as much power as states give them to exercise specific functions
    → (unlike states who can do whatever they want)
  • International organizations fulfill certain functions + are NOT organized on a territorial basis (unlike states)
27
Q

ICJ Case: Reparation for Injuries suffered in the Services for the UN (1949)

A

Facts;
Count Fotte Bernadotte was a Swedish diplomat who worked as a UN mediator in Palestine

He was assassinated by Jewish extremist group

UN sought legal recourse - case was brought before the ICJ

Question:
Can the UN, as an international organization, claim reparations from a responsible government?

Does an international organization have the capacity to sue a state for the murder of a diplomat?

ICJ’s Answer:
Clarified the UN is an international organization + possesses a legal personality distinct (recognizably different) from its member states

Stated it is a subject of international law ⇒ therefore possesses its own rights and duties (dif rights + duties from states)

⇒ therefore has the capacity to maintain these rights by bringing international claims

Yes → argued the UN has a capacity to sue a state who violates their rights

= this case Impacted legal status of international organizations

28
Q

ICJ Case:

Legality of the Use of Nuclear Weapons (by a state) in Armed Conflict (1996)

A

Facts;
World Health Organization [WHO] addressed the issue of nuclear weapons and their humanitarian impact + requested an advisory opinion by the ICJ (legal advice - issued by courts)

International Court of Justice [ICJ] claimed the WHO lacked the competence to request an advisory opinion on such matters

UN General Assembly then requested an advisory opinion on the legality of use of nuclear weapons → hold greater competence so ICJ answered

ICJ Answer;
They sorta can because there is no prohibition of nuclear weapons when the survival of a state is at stake

impact;
In its answer, ICJ acknowledged the Principle of Speciality → power of international organizations is limited to the objectives entrusted to them by member states

Impacted legal status of international organizations