Words to Memorize Flashcards
Accession
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
Act of State Doctrine
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.
Alien Tort Statute
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
Arbitration
(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.
Armed conflict—
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.
Caroline Doctrine
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.
Casus belli
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.
Cession
Cession—(From Latin cessio: “to yield.”) Denotes any transfer of sovereignty over territory by one state to another. See “transfer.”
Charming Betsy canon
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
Article 3
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.”
Erga omnes
Obligations erga omnes are “obligations of a state towards the international community as a whole.”
Custom/Customary International Law
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.
Fundamental Change in Circumstances
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.
high seas
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.
Jus Ad Bellum
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
Jus cogens-
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.
Jus in Bello
Law governing the conduct of warfare (sometimes referred to as “international humanitarian law,” or “the law of armed conflict”).
ICJ
—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.
International Humanitarian Law
(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.
Montevideo Convention on the Rights and Duties of States (1933)
(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.
Nation
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.
Natural Law
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.
Newly Independent State
“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.
NGO’s -nongovernmental organizations
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)
non-intervention
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”).
Permissive customary international law
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.
Persistent Objector
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
Plebiscite
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.
Preemption
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
Principle of Effectivity
(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
Private International Law
(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).
Proportionality
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.
Protective Principle
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.”
Reciprocity
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
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. 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
reparation
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”).
Reprisal
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.
Reservation
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).
Retortion
The taking of legal (but unfriendly) non-forceful countermeasures in response to another state’s discourteous act.
Sanctions
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).
Secession
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.
Self-Defense
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.
Self-determination
(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
Internal self-determination
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.
External Self-determination
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
Self-help Measures
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.”
Soft Law
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).
Soverign
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.
Sovereignty
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.”
Statehood
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.”
Status Quo Ante Bellum
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.”
Succession
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
Treaty
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.
Treaty, self-executing
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).
Treaty, remedy for breach
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.
Treaty, Terminaton of
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.”
Treaty, non-self executing
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.
Treaty, validity of
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).
Vienna Convention
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.
Treaties in force
TIF)—Treaties in Force— US publication that list all the treaties the US is a party too
