Words to Memorize

Question 1

Accession

Answer 1

The act whereby a state accepts the opportunity or offer of becoming a party to a treaty already signed by other states, though not necessarily yet in force.
Acheson Plan- allows the General Assembly w/in 24 hrs notice after veto by SCouncil to step in and organize the collective use of force against an aggressor

Question 2

Act of State Doctrine

Answer 2

Doctrine, operating essentially as a choice of law rule, that says the acts of a government within the boundaries of its own territory are not subject to judicial scrutiny in a foreign municipal court.

Question 3

Alien Tort Statute

Answer 3

1789: “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350 (1789). See Filartiga v. Pena-Irala; Sosa v. Alvarez-Machain

Question 4

Arbitration

Answer 4

(From Latin arbitrari: “to give judgment.”) The process by which parties to a dispute submit their differences to the judgment of an impartial third person or group selected by mutual consent; a method of settlement of disputes between states in which the disputed matter is submitted to selected parties whose decision is substituted for the judgment of a court.

Question 5

Armed conflict—

Answer 5

All cases of declared war or of any other armed conflict that may arise between two or more states, even if the state of war is not recognized by one of them; a hostile military engagement between nations that may or may not constitute a state of war. The scope of the four Geneva Conventions of 1949 extends to armed conflict, not just to formally declared war.

Question 6

Caroline Doctrine

Answer 6

Self-defense use of force if:
1. directly attacked 2. return use of force has to be to prevent further attack 3. known target 4. necessary and proportional force.

Question 7

Casus belli

Answer 7

An act or preceding of a provocation nature on the part of one state which, in the opinion of the offended state, justifies it in making or declaring war.

Question 8

Cession

Answer 8

Cession—(From Latin cessio: “to yield.”) Denotes any transfer of sovereignty over territory by one state to another. See “transfer.”

Question 9

Charming Betsy canon

Answer 9

Charming Betsy canon—The line of U.S. cases relevant for resolving conflicts between treaties and statutes; that crts & other authority must construe actions by the govt if at all possible in a way that is consistent w/ int’l law

Question 10

Article 3

Answer 10

Article in common to all four 1949 Geneva Conventions that provides rules governing conduct during cases of “armed conflict not of an international character occurring in the territory of one of the…Parties.”

Question 11

Erga omnes

Answer 11

Obligations erga omnes are “obligations of a state towards the international community as a whole.”

Question 12

Custom/Customary International Law

Answer 12

A long established tradition or usage becomes customary law if it is (a) consistently and regularly observed and (b) recognized by those states observing it as a practice that they must follow. That is, customary international law is evidenced by consistent state practice followed out of a sense of legal obligation.

Question 13

Fundamental Change in Circumstances

Answer 13

A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties” may only be invoked as a ground for terminating or withdrawing from the treaty in a limited number of circumstances. See Vienna Convention on the Law of Treaties, art. 62.

Question 14

high seas

Answer 14

The seas beyond areas of national jurisdiction. The high seas are open to all states and are therefore considered part of the global commons. Generally, the high seas are waters outside 200 miles of any state

Freedom- Includes, inter alia, the freedom of navigation and fishing, subject to a requirement that states give due regard to the interests of other states to engage in high seas freedoms.

Question 15

Jus Ad Bellum

Answer 15

Law governing whether use of force is permissible; the right to resort to war. See generally U.N. Charter arts. 2(4), 24, 39, 42 & 51. E.g., the Rainbow Warrior Affair

Question 16

Jus cogens-

Answer 16

Norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” Vienna Convention on the Law of Treaties, art. 53. Peremptory norms are those rules of law that are binding irrespective of the will of the individual parties.

Question 17

Jus in Bello

Answer 17

Law governing the conduct of warfare (sometimes referred to as “international humanitarian law,” or “the law of armed conflict”).

Question 18

ICJ

Answer 18

—International tribunal headquartered at the Hague, Netherlands, established by art. 7 of the U.N. Charter in 1946. Only states may be parties to disputes before the I.C.J., and because it is not a court of court of compulsory jurisdiction, states must consent to have the I.C.J. adjudicate their respective disputes. The I.C.J. has both advisory and adjudicative jurisdiction.

Question 19

International Humanitarian Law

Answer 19

(law of armed conflict) Body of law governing actions during armed conflict. International humanitarian law provides, inter alia, that all parties have a duty to prevent suffering that is unnecessary to achieving the military objective.

Question 20

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

Answer 20

(165 L.N.T.S. 19)—Convention providing the (generally regarded) standard definition of a state. A state: has a defined territory, a permanent population, is under control of its own government, and engages in (or has the capacity to engage in) formal relations with other states.

Question 21

Nation

Answer 21

a relatively stable community of people who share a common history & culture and 1 or more languages; a population bound by a sense of common identity.

Question 22

Natural Law

Answer 22

Theory which asserts that the rules of international law are drawn from the moral law of nature which had its roots in human reason, and which could therefore be discerned without any knowledge of positive law.

Question 23

Newly Independent State

Answer 23

“A successor state, the territory of which immediately before the date of the succession of states was a dependent territory for the international relations of which the predecessor state was responsible.” Vienna Convention on Succession of States in Respect to Treaties, art. 2.

Question 24

NGO’s -nongovernmental organizations

Answer 24

Transnational groups or entities (such as the Catholic Church, Greenpeace, and the International Olympic Committee) that interact with states, multinational corporations (MNCs), other NGOs and international organizations (IOs). Unlike IOs, which are created by treaties and consequently have their origins in international law, NGOs’ origins are in the domestic arena.
(red cross; Olympic organization)

Question 25

non-intervention

Answer 25

A fundamental principle of international law, enshrined in art. 2(4) of the U.N. Charter: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State….” See also U.N. Charter, art. 2(7) (“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…but this principle shall not prejudice the application of enforcement measures under Chapter VII”).

Question 26

Permissive customary international law

Answer 26

Subject to the prohibitory customary international law rule (see infra), states have a wide measure of discretion in applying their law to extraterritorial acts. The S.S. Lotus (France v. Turkey) 1927 P.C.I.J. (ser. A) No. 10.

Question 27

Persistent Objector

Answer 27

Rule asserting that even if a general or regional norm of customary international law has been shown to exist, a state that persistently objected to it when it was developing is not bound by that norm. So long as its objection does not undermine core. Split of authority whether a state may relieve itself of its obligations under customary int’l law…. but want states to participate in int’l system

Question 28

Plebiscite

Answer 28

The vote of the entire population of a country or area expressing choice for or against a proposed law; an expression of choice as to sovereignty.

Question 29

Preemption

Answer 29

invoked when it is impossible for a party to comply w/ both fed’l and state law and where the state law stands as an obstacle to the accomplishment & execution of the objectives of Congress

Question 30

Principle of Effectivity

Answer 30

(Quebec) even if what was once illegal, becomes legal over time; it does not apply retroactively to the previously illegal act & make it legal. An illegal act cannot retroactively create a legal right to engage in the act in the first place.Int’l recognition does not relate back to the act of secession (Quebec) so that its initially illegal secession had not become legal in the eyes of the community

Question 31

Private International Law

Answer 31

(conflict of laws) Expression referring to the branch of municipal law that deals with cases having a foreign element; rules which govern the choice of law in private matters (such as business contracts, marriage, etc.) when those questions arise in an international context. Central issues are a choice of jurisdiction and choice of law (with enforcement of foreign judgments as a subsidiary issue).

Question 32

Proportionality

Answer 32

A principle of international humanitarian law addressing whether the military response is proportionate to the threat posed by the opposition. Involves considerations of weapon choice, incidental injury, and collateral damage.

Question 33

Protective Principle

Answer 33

One of the four types of extraterritorial prescriptive jurisdiction. This principle provides: “[a] state has jurisdiction to prescribe laws to define, prevent and punish certain conduct outside its territory by persons, not its nationals, that is directed against the security of the state or against a limited class of other state interests.”

Question 34

Reciprocity

Answer 34

A concept that explains why states follow international law. One state limits its own sovereignty in exchange for a promise by another state to do the same

Question 35

Rendition

Answer 35

The rendition of criminals refers to the return of a fugitive, by the authorities of the capturing state, to the state from which he/she has fled. Rendition usually takes place under the terms of an extradition treaty, which is an agreement between countries on the rules governing the extradition of suspected or convicted criminals from one of the countries to another. Irregular rendition is that which takes place outside the bounds of regular extradition proceedings. rendition—The rendition of criminals refers to the return of a fugitive, by the authorities of the capturing state, to the state from which he/she has fled. Rendition usually takes place under the terms of an extradition treaty, which is an agreement between countries on the rules governing the extradition of suspected or convicted criminals from one of the countries to another. Irregular rendition is that which takes place outside the bounds of regular extradition proceedings. United States v. Alvarez-Machain

Question 36

reparation

Answer 36

See I.C.J. Statute, art. 36(2) (parties may confer on the court jurisdiction to determine “the nature or extent of reparation to be make for the breach of an international obligation”).

Question 37

Reprisal

Answer 37

A type of countermeasure/self-help remedy (not involving the use of force), otherwise illegal, taken by one state in response to another state’s internationally unlawful act. That is, reprisals are such injuries and otherwise illegal acts of one state against another for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency. To be acceptable in international law (if at all) reprisals may be used only to redress a breach of international law, a demand for redress must have gone unanswered, and the reprisal must be reasonably proportional to the injury suffered. PROPORTIONAL AND NECESSARY.

Question 38

Reservation

Answer 38

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 to modify the legal effect of certain provisions of the treaty in their application to that state. Vienna Convention on the Law of Treaties, art. 2(1)(d).

Question 39

Retortion

Answer 39

The taking of legal (but unfriendly) non-forceful countermeasures in response to another state’s discourteous act.

Question 40

Sanctions

Answer 40

Measures taken in support of law by the general authority. Sanctions can be punitive or preventative. See, e.g., U.N. Charter, arts. 41-42 (providing for the application of sanctions by the Security Council against a state guilty of a threat to the peace, breach of the peace, or act of aggression).

Question 41

Secession

Answer 41

A type of state succession whereby the old state remains, and one or more new states emerge (e.g., Bangladesh); the establishment of one or more new states on territory formerly part of a predecessor state without bringing about the complete disappearance thereof. Generally, there is a bias against secession because it presents a number of difficult succession questions (i.e., the continuity of international rights and obligations, membership in international organizations, property ownership, nationality of affected people). Refer to Vienna Convention on Succession of States in Respect to Treaties, arts. 34-35.

Question 42

Self-Defense

Answer 42

Under customary international law, self-defense is permitted only where the “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, an no moment for deliberation…[and] the act, justified by the necessity of self-defense must be limited by that necessity.” The Caroline Incident (1841) (Moore, Digest of International Law, Vol. 2, 25); Corfu Channel Case (U.K. v. Alb), 1949 I.C.J. 4. A right of individual or collective self-defense in response to an armed attack against a member of the U.N. is recognized in art. 51 of the U.N. Charter. It is unclear to what extent art. 51 supersedes customary international law rules.

Question 43

Self-determination

Answer 43

(Aaland Islands) Relates to group rights. The right of a people to freely decide the pol’l and legal status of that territory. Right to choose b/w two existing states. Art 1§2 U.N. Charter

Question 44

Internal self-determination

Answer 44

the right of people to determine their domestic political, economic and social systems w/in the framework of an existing state. Promote democratic institutions in order to respect the will of those governed.

Question 45

External Self-determination

Answer 45

the right of people to determine their institutions and way of life w/o outside control or interference. (ie. Assertion of unilateral right of secession)
Freedom from alien/foreign rule; A people implementing the right of self-determination by themselves by est a sovereign state, freely associate w/ another independent state or come into any other pol’l status

Question 46

Self-help Measures

Answer 46

Measures (forcible or non-forcible) taken by a state in response to unfriendly and illegal acts by another state; a state’s extrajudicial action to remedy another state’s violation of international law. If the initial act is unfriendly and the response not contrary to international law, the response is called “retorsion”; if the initial act is illegal and the response would otherwise be contrary to international law, the response is called “reprisal.”

Question 47

Soft Law

Answer 47

Generally, this refers to international norms that, while not enforceable, might carry normative force (e.g. UNCED Declaration of Principles, UNFAO Code of Conduct for Responsible Fisheries).

Question 48

Soverign

Answer 48

The supreme repository of power in a political state. A sovereign state is a political entity comprised of a territory and a government that possesses and exercises exclusive power over that territory. Sovereign states are the principal subjects of international law.

Question 49

Sovereignty

Answer 49

Sovereignty is not absolute in the sense of permitting a state to act as it will regardless of international law. “We can no longer regard sovereignty as an absolute and individual right of every State, as used to be the case under the old law founded on the individualist regime, according to which States were only bound by the rules which they had accepted. To-day, owning to social interdependence and to the predominance of general interest, the states are bound by many rules which have not been ordered by their will.”

Question 50

Statehood

Answer 50

The generally accepted criteria for determining statehood: to be a person of int’l law it possesses: A permanent population; A defined territory; Governement; The capacity to enter into diplomatic relations w/ other states . “Montevideo Convention on the Rights and Duties of States.”

Question 51

Status Quo Ante Bellum

Answer 51

A principle embodied in a treaty ending a war that says that state boundaries/borders will be restored to pre-war positions. Frontier Dispute (Burkina Faso v. Mali) 1986 I.C.J. 554 (Dec. 22). Compare with “uti possidetis.”

Question 52

Succession

Answer 52

The branch of international law addressing the legal consequences of a change of sovereignty over a territory; “the replacement of one State by another in the responsibility for the international relations of the territory.” Vienna Convention on Succession of States in Respect to Treaties, art. 2. There are a number of ways in which succession occurs: transfer, absorption, merger, decolonization, secession, and dissolution. Refer to Vienna Convention on the Law of Treaties, art. 73; Restatement (Third) of Foreign Relations § 210. A change in government does not give rise to a succession question because internal governmental changes do not alter a state’s international obligations. Tinoco Arbitration

Question 53

Treaty

Answer 53

An agreement between two or more independent states.

Amendment to treaty- Begin with the text of the treaty. Refer to the Vienna Convention on the Law of Treaties, arts. 39-41, for default rules.

Question 54

Treaty, self-executing

Answer 54

Doctrine in dualist states dictating whether international treaties apply in domestic law systems without implementing domestic legislation. To determine if a treaty is self-executing, see Restatement (Third) of Foreign Relations, § 111(4). See also Sei Fujii v. State, 242 P.2d 617 (CAL. 1952) (holding that the preamble and art. 1 of the U.N. Charter are not self-executing); Asakura v. City of Seattle, 265 U.S. 332 (1924) (holding that a treaty of Friendship, Commerce, and Navigation between the U.S. and Japan grating Japanese nationals employment rights in the U.S. is self-executing).

Question 55

Treaty, remedy for breach

Answer 55

Under international law, a state that has violated a legal obligation to another state is required to terminate the violation and, ordinarily, to make reparation, including in appropriate circumstances restitution or compensation for loss or injury.” Restatement (Third) of Foreign Relations § 901.

Question 56

Treaty, Terminaton of

Answer 56

Start with text of the treaty. See Vienna Convention on the Law of Treaties, arts. 56, 60 & 62, for default rules. Refer to “rebus sic stantibus.”

Question 57

Treaty, non-self executing

Answer 57

A treaty that requires states parties to enact enabling municipal legislation before it becomes effective domestically. The provisions of a non-self-executing treaty, in contrast to those of a self-executing treaty, require a formal or specific act of incorporation by state authorities before becoming part of the law of the land and enforceable in municipal courts.

Question 58

Treaty, validity of

Answer 58

The grounds for invalidating a treaty are described in the Vienna Convention on the Law of Treaties. A treaty is voidable for manifest lack of capacity (arts. 46-47), error (art. 48), fraud (art. 49), or corruption (art. 50). A treaty is void for coercion (arts. 51-52), or if it conflicts with a peremptory norm (arts. 53 & 64).

Question 59

Vienna Convention

Answer 59

International convention containing, inter alia, provisions for the resolution of ambiguities in treaties, termination of treaties, and suspension of treaty rights and obligations. The U.S. is not a party to this convention but accepts the majority of its provisions as a codification of customary international law.

Question 60

Treaties in force

Answer 60

TIF)—Treaties in Force— US publication that list all the treaties the US is a party too