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202 Cards in this Set
- Front
- Back
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Why do states comply to international law? (Two Theories) |
1. Command Theory 2. Self-Interest Theory |
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Command Theory (Thinker + Details + Problems |
Thinker: Austin Details: States follow international law because they are commanded to do so, or there will be consequences for not obeying the law Problems: Does not tell us things we have to do. Also, who commands? Law as a horizontal process... |
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Self Interest Theory (Details) |
States obey the law because it is in their interest to do so, even when they are losing their case - Think about what happens if everyone cheats the law, rational maximizers |
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Melian Dialogue |
"The strong do what they can, and the weak suffer" or "Join the empire or else" |
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Is international law a "horizontal" or "vertical" system? What does that mean? |
- Law is a "horizontal" system - It is a law between states, not a law of one state above another |
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Ius Cogens
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"Fundamental Norms" that all states share; reflects a natural law approach. |
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Ius Gentium |
"Law of Nations"; based on the roman legal system. A source that is found above states. |
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Ubi societas, Ibi Jus |
"Where there is society, there is law": Similar laws apply across cultures, you find the same reoccurring rules, something fundamental to that rule |
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Pacta sunt servenda |
"Agreements must be kept", why positive law works, gives an obligation to consent to the law |
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Why should international law be binding? (2 Approaches) |
1. Natural Law 2. Positivism |
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Natural Law (definition (4), problems) |
Definition: 1.Law is found, not made. It comes from some transcendental authority ("divine"). 2.The law applies to everyone 3. The law is above states. 4. Actors are bound by reason/god/nature Problems: Different interpretations, no text of Natural Law, what happens when fundamentals do not exist or are not agreed upon? |
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Positivism (definition (4)) |
Definition: 1.The Law is made — by states. Look to the agreements and practices between states. 2. The law applies to states, with states as the dominant actors 3.The law exists between states (horizontal), 4. States are bound by their consent. |
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History of Progression of IR |
1) 19th Century Liberal and anit-war movments, seeking international cooperation and reduce violence using western legal systems as a model 2) Development of specific processes (e.g. arbitration, permanent court of international justice) 3) Collapse of those institutions, WWII, and creation of new institutions (UN, ICJ) Liberalism --> Realism |
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Domestic Law/Political Institutions equivalent with International ("misleading" and real |
Legislative Branch: Misleading: UNGA. Real: UNGA to a very limited degree. The creation of treaties, customs and general principles of laws Executive: Misleading: Security council Real: Security council to some degree, self-help, self-interest Judicial: Misleading: ICJ Real: ICJ, ICC, tribunals, international law in domestic courts, within limits. |
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Self-Help Notions of international law: |
Notion of RETORSION and REPRISAL, the retaliation actions |
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Why are weak and strong states willing to follow international law? What is the longer-term benefit? (4) |
1. ORDERLY ENVIRONMENT: Uncertainty has price, less cost of "buying insurance" 2. REPUTATION: Willingness to follow rules (or break rules) will have consequences of how others view you. Future agreements, etc. 3. CONSTRAINS STRONGER STATES: For weaker states, you know the rules of the game. Can hold to some account. 4. STRONG STATES PLAY ROLE IN WRITING RULES. |
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Law as a "culture of agreement": (and example) |
CThis says law is a way of arguing. It is an evolving conversation, where situations are defined and conclusions/justifications/excuses are made. - E.g. concept of self-defence, pre-emptive strike evolving after 9/11 |
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Which case is broadly accepted as the foundation for the principle of self-defence? |
Caroline Case |
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What does it mean if the "law is not neutral": |
Once you define something in a specific way, you now rule out other definitions of that situation. It now is what it is. |
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Monism vs. Dualism |
Monism: Both international and domestic law are assumed to be continuous; takes route with natural law, some divine source of law that applies in both contexts Dualism: A clear distinction between international and domestic legal systems, taking a stronger route in positivism where laws are created. |
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Social Process Approach (thinker + definition) |
Thinker: McDougal - International Law resembles whatever US foreign policy is at the time |
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What is considered the point of origin of international law? |
- The rise of the state; the Peace of Westphalia |
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Problems with Austin's Command Theory (4) |
1. The law does not just demand or prohibit; it facilitates, creating capacity for actors to do things. 2. It is impossible to force sanctions on everyone; as people accept rules as legitimate, it becomes easier to enforce 3. Customs vs. comity; 4. Language and behavioural appeals to the law, state's conduct challenges Command Theory |
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Implied Consent/Tacit Consent |
When a new state emerges in the world, it is still bound by the previous international customary law. |
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Lex Lata |
The law as written |
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Lex Ferenda |
The law we might like to see, the law we advocate for |
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Codes of Conduct in international law |
Voluntary guidelines (non-binding). May eventually be accepted as IL, but not actually law at the time. |
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What is a source of international law? (Definition) |
The law-creating or legislative process. What gives rules legally binding character. |
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What is an evidence of international law? (Definiton) |
An evidence of international law is something we look for to determine the existence and context of a rule. |
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Seven broad categories of sources and evidence (+ eight that is neither) |
1. Treaties 2. Customs 3. General principle of law recognised by civilised nations 4. Judicial decisions and writings of qualified publishists 5. Unilateral declarations by states 6. Ius Cogens: Peremptory norms of general international law 7. Acts of international organizations 8. Decisions ex aequo et bono: (neither source or evidence)
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Treaties (definition, source, evidence) |
"An international agreement between two or more states in written form and governed by international law"; e.g. not everything signed is a treaty, needs to have legal binding. May be treated as a source if it creates a new rule. It is not a source if it only codifies an already existing custom. - New treaties take precedence over old treaties if they contradict It is then an evidence of that rule. |
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Attraction of multilateral treaties (2) |
1. A quick response to a problem 2. New states can explicitly be involved in the rule-creating process |
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Clausula Rebus Sic Stantibus |
"Things thus standing": A treaty only is in place as long as the conditions of when it was signed persist. This argument is contentious. |
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Reservation: |
To agree to everything in a treaty, except for a certain part. E.g. I sign the treaty, someone I don't recognise signs the treaty, doesn't mean I now recognise that someone |
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Amendment |
To change a clause of a treaty. Is only legally binding on states that sign on to the amendment of the clause. |
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Two wrinkles of treaties: |
1. Interpretation: The written rules are subject to interpretation to find out what the provisions mean 2. Desuetude: For a rule to not be used or objected to for such a long time that it falls into disuse. Courts can say it no longer applies if long enough time of desuetude. |
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Custom (definition, source, evidence) |
A custom implies a practice has legal standing. It is a source of evidence. It is a source of international law, but cannot be cited as evidence of international law. |
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Four things to look for when determining if a custom exists |
1. Generality: The number of states that are involved in the behaviour in a similar manner. 2. Duration: How long the states have engaged in this behaviour. 3. Acquiescence: Do other states protest when you partake in a practice? When states do not protest, it implies this behaviour is not illegal 4. Opinio juris: A feeling of legality or the legal standing of this practice. Most important part. |
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What do we look for to establish the existence of a custom? (5) |
1. What states do, what they say... 2. Look for a treaty that codifies the custom 3. Look at previous judicial decisions and writers 4. Look at national legislation 5. Look at GA resolutions (note, not legally binding itself): Look at who voted for it, who voted against it... sense of opinion amongst countries |
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"Soft-Law" |
- Soft law isn't law, its more voluntary guidelines. Actors may or may not participate in. May evolve into law over time. |
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Persistent Objector (definition + e.g.) |
As a practice develops, if a country continuously protests before the rule is accepted as a rule, it might bot apply. E.g. Anglo-Norway Fisheries Case: Customary law says boundary is 3 miles, but Norway has always claimed 4 miles. Therefore, ICJ says 4 mile limit for Norway is allowed. |
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General Principles of Law Recognized by Civilised Nations (Definition, source, evidence) |
A back-stop category, looking for the common basis to apply to a case in the absence of specific treaties/customs A source of law, but not an evidence of law. |
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Prescription: (+2 case e.g.) |
If you have a right in law, and you fail to behave long enough to exercise that right, you may lose that right E.g. 1: Gentini: Italian national living in Venezuela. Suffered damages from Venezuela, took 30 years to take claim to Italy. Did not apply because took so long to take claim. E.g. 2: Island of Palmas: Spain claimed the island, but ignored the island so long, even with Dutch activity on it, that it lost claim to the island. |
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Estoppel: (+3 eg) |
A state is entitled to rely on the statements and behaviours of another state. You cannot change your mind after you says something or do something if someone else relies on it. E.g. 1: Right of Passage: Portugal was entitled to rely on the behaviour of India regarding the passage of Portugese forces from enclaves in Goa. India estopped from blocking forces. E.g. 2: East Greenland: Norwegian Foreign Minister madea statement, that Norway would not challenge Denmark’s claim to East Greenlandif Denmark does not challenge Norway’s claim to Spitsbergen. |
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Judicialdecisions and writings of the most qualified publicists (definition + source, evidence) |
- Citing cases and the writing of qualified writers as evidence of a law being in place. - Does not create law (not a source), but is evidence of law. |
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Stare Decisis |
"Let the Decision Stand", the law of precedence - ICJ is not bound by the law of precedence in a strict sense. |
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Unilateral Declarations by states (Definition, source, evidence) |
- Makes a binding obligations and rules on itself. - These statements are sources of international law on itself - These statements may be cited as evidence |
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Ius Cogen as a source/evidence of international law |
- Remnant of natural law, things that are so fundamental that these norms premit no exception. - Only real ones that apply today: Genocide, aggression, crimes against humanity |
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Acts of International Organizations as a source/evidence of law |
- UN is not a world government, their resolutions they pass may be binding on the operations of the united nations. - Security Council may be an exception of a source of international law - UN Votes may give evidence of the gelling of a custom, look at vote patterns. |
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Decisions ex aequo et bono*: |
A strict application of the law would produce an unfair result. Need the agreement of all parties that this strict application would be unfair. Is not a source or evidence of international law for our purposes. |
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CASE: Paquete Habana and The Lola |
Cuban vessel seised by USA, with a ship that was catching and selling fresh fish off the coast of Cuba. It was illegal for the USA to seize this boat in "prize law". Reasoning: A custom exists that exempts boats that are fresh fishing in the time of war. Concepts that occur: - Lex Lata vs. Lex Verenda - Customary law |
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Transformation: |
The process of explicitly incorporating law from one system (i.e. international law) into another system (i.e. domestic/municipal law). This is seen in dualism views of law. |
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Incorporation: |
Customary law becomes a part of municipal law, without any specific act. This is seen in monism views of law. |
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Co-ordination theory (thinker + definition) |
Thinker: Brownlie Definition: Usually, states are consistent in their practices of law because municipal and international law operate in their own sphere, and each is supreme in its own sphere. When a conflict between municipal law and international law does occur, the municipal law is not invalidated at the municipal level, however, the state may have international repercussions. |
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Treaty Law comparison between USA and Commonwealth |
USA: A statue may be in place. The ratification of a treaty will make that statue void. However, the passing of a new statue after ratification can make the treaty now void. Commonwealth: Crown may negotiate treaty. New statues dominate over old statues like before, and treaties are only implemented with parliamentary statute. Provincial legislation (in their jurisdiction) can override statute. |
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Custom Law at the municipal level |
Theory is incorporation. Customs will become automatically law. E.g. British Law, colonies will automatically bound by british customs. |
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2 difficulties with incorporation |
1. Stare decisis; later court rulings limited by previous court rulings 2. Statutes and case law can override customary law. |
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Ultra vires |
"Beyond authority" |
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International Legal Personality list (6)
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1. States 2. International organisations 3. Belligerents 4. Peoples, nations, minorities 5. Private organisations 6. Individuals |
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Three elements of an actor being an International Legal Person |
1. An ILP has duties and responsibilities under international law 2. An ILP has the capacity to have agreements with other ILPs 3. An ILP has the capacity the capacity to claim those rights on its own behalf before an internationaltribunal. Third most important. |
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Primary vs. Secondary subjects of International Law |
Currie's distinctions... Primary: States Secondary: Everyone else |
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States as ILPs |
- States are the dominant ILPs in IL - Sovereign and independent, fully capable subjects of IL - Can create and abolish other ILPs |
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What are the four criteria of being a state? |
1. Territory: Can claim jurisdiction over some territory 2. Population: People need to live there, permanently. Does not require homogeneous population. 3. Government: The management body of the organisation of the state. 4. Sovereignty: To have control over own self-interest and determination. Not a legally a subordinate. |
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Intergovernmental Organisations |
- Organisations of states, e.g. the EU, USSR - Legal character is case-specific - Politics can get in the way |
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Brownlie Criteria for recognizing an intergovernmental organisation as an ILP (3) |
1) Must be a permanent associationof states formed with a lawful purpose and with its own organs or institutions 2) Must be a distinction betweenthat organization and member states in terms of its legal powers andcapacities. Certain powers and capacities must be assigned to the organization 3) Legal rights and dutiesexercisable in the international legal system; i.e. signing treaties withstates. Not merely in the domestic law of a state. |
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Belligerents as ILP |
If a rebellion in a country is large scale, and the rebels conduct self in the laws of war, other states may say rebellion is sufficiently large enough to have international legal consequences. Rebels now called belligerents. |
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Law of Neutrality |
If rebels have not been recognised as belligerents, it is still legal for a foreign government to give legal aid to the government in power. If rebels have been recognised as belligerents, it is not legal for a foreign government to give assistance to either side of the conflict. |
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Minorities, Nations and Peoples as ILP (issues and examples) |
- Usually, issues surround self-determination - E.g. Yugoslavia break-up, Nigeria Sometimes, self-determination granted to colonies, but not to subgroups within the colonies. Self-Determination: You have the right to try but not the right to succeed |
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Private Organisations as ILPs |
- Some given certain functions under international law, e.g. the Red Cross - Initial international charter to regulate MNCs went no where - Today, voluntary guidelines, some agreements... |
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Individuals as ILP |
- No real right to bring a claim to an international tribunal - Still have responsibilities, i.e. as seen in the Nuremberg trials |
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Recognition (Definition) |
- To acknowledge a situation and grant the legal consequences that then follow |
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Two Theories of Recognition |
1. Constitutive 2. Declarative |
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Constitutive Theory of Recognition |
- Mainly found at the municipal level, but sometimes found at the international level - A legal recognition of the existence explicitly creates a legal fact |
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Declaratory Theory of Recognition |
- Supported at the international level - Recognition merely acknowledges a situation exists, and applies legal consequences - Does not create the situation
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Estrada Doctrine |
- States do not recognise the governments of other states. Rather, they just recognise whether the state itself. |
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Explicit vs. Implicit recognition |
Explicit: A material, observable claim made by a state that recognises a situation. e.g. a new country appears, our state sends a telegram of congratulations. Implicit: Looking at the behaviour of states to try to infer whether recognition is being granted. |
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Doctrine of the Continuity of States |
A mere change in government does not change international legal personality itself, nor does it change the rights or obligations under international law |
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Dispositive Treaties and Servitude |
These treaties that serve the international community (e.g. a canal, or international channel) may continue to be in effect, even after succession |
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Consequences of Universal Succession (6) |
1. Treaties: Treaties signed by old state disappear with it (exceptions: dispositive treaties) 2. Claims do not necessarily succeed, e.g. WestrandCentral Mining v. The King. 3. Nationality changes to the new state, or may create stateless persons 4. Public property goes to the new state. 5. New state can impose new private property law, may give transition time, may result in rights of aliens cases with foreign ownership 6. Foreign debt should succeed, but not necessarily debt to its own people. |
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Consequences of Partial Succession (6) |
1. Treaties: New state does not succeed on rights and obligations of territory that is now in their control. However, dispositive treaties with the land still apply. 2. Rights and obligations lapse regarding the lost territory 3. State that takes over territory may grant nationality to inhabitants, may allow to move... NOT STATELESS THOUGH (original state still exists) 4. Public property in area transfers 5. Private property in area may change over time, regarding the new state in control 6. New state should succeed on part of national debt |
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Consequences of Secession, Colony (6) |
1. Dispositive treaties still apply, but "clean slate" doctrine means new treaties can be created that now apply and may choose what old treaties/agreements to continue 2. Claims: Clean slate 3. Nationality normally changes, may allow to keep old nationality 4. New state succeeds on public property 5. New government puts new system for private property 6. New state may succeed to debt as part of local expenditures |
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Why is territory a basis for international law? |
Who has control of a territory will determine who has can allocate jurisdiction over that territory. It regulates the enforcement of regulations over that territory. |
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Terra Nullius / Res Nullius |
Land that belongs to no one (no state) |
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Terra Communis or Res Communis |
- Common property, e.g. high seas |
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Cession |
The transfer of territory from one state to another. YOU NEED TO HAVE GOOD TITLE ORIGINALLY TO DO THIS! |
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Nemo dat quod non habet |
You cannot transfer what you do not have; important concept for cession |
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Conquest for territory |
Conquest for territory is now dubious. Old days, it was okay. May have de facto control, but now, it requires de jure recognition. |
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Accretion |
Acts of nature that create new territory or change/alter territory |
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Uti Possidetis |
"As you possess" - During decolonisation and independence, the boundaries you have as a colony should remain unchanged |
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Contiguity |
A chunk of land that is next to what is definitely ours is probably also ours, especially if it is uninhabited. THIS IS A WEAK CLAIM. |
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Title to territory: Prescription,Acquiescence, Recognition |
Prescription: If you fail to exercise that you have title to territory, you may lose title to that territory Acquiescence: If states tolerate your presence on a territory, you may claim that it is yours Recognition: If a state formally recognises that you have title to that territory, you have title. |
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Critical Date |
If you have a dispute with another country with regard toterritory, and you say “by this date, we have good title”, this means that youractivity after that date doesn’t count to establish your claim |
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Boundaries on Land |
1. Fixed by an agreement or treaty, e.g. Point Roberts is USA because of 49th parallel treaty; 2. Fixed by salient natural features (e.g. mountains, rivers...) |
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THALWEG PRINCIPLE |
Theborder moves down the middle of the navigable channel in a river. |
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The Asylum Case: Columbia vs. Peru |
What happened: Peruvian leader granted asylum in the Colombian embassy in Peru, and seeking safe passage out of country. Colombia was not entitled to qualify the offense in a unilateral decision binding Peru. Reasoning: Agreements Colombia stated allowed it to make obligations on Peru to allow Torre passage because HE'S STILL ON PERU TERRITORY. Also, lex lata vs. lex verenda, |
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Case: Mortensen v. Peters |
Topics: International/Municipal Law What was happening: Mortesen, a Dane living in England, was master of a Norway-registered fishing vessel. Found guilty of using otter-trawining in the Firth. Appealed, upheld conviction though. Why? - Statute applies to every person in British territory, regardless of nationality - Though contrary to international law, the municipal law had stood (Raised in British court) |
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Inter fauces terrae |
Waters so closely associated with theland, they’re enclosed and a part of territory, even beyond 3 mile limit |
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Case: The USA v. the PLO |
Topics: Municipal/International Law What happened: There was a PLO office in USA, as an observer in the UN. New legislation passed (Anti-Terrorism Act), did the PLO office now have to close? No. Reasoning: Statues and Treaties both treated as supreme law, and both given effect when possible. The Anti-Terrorism Act never mentioned the PLO mission or the Headquarters agreement, therefore this agreement still stands. |
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Case: Reparation for Injuries Suffered in the Service of the United Nations |
Topics: International Legal Persons What Happened: UN went to ICJ for advice. Count Bernadotte, while performing duties for the UN, was assassinated. Does the UN have a right to bring an international claim against the government to secure reparation for damages? Yes. Reasoning: To achieve the purposes of the UN, ILP is indispensible. As an agent of the UN performing duties of the UN, it is essential that the UN may lay claims for reparation for injuries. |
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Case: Luther v. Sagor |
Topics: Recognition, Commonwealth Legal System (new statue precedence) What was happening: A Russian nationalized company sold some goods to a British company. British company (Sagor) wants products after USSR seizure. However, USSR not recognised at time. Result: Sagor appealed, and Britain recognised USSR eventually, meaning acts by Luther now valid by British courts, even prior to recognition. |
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Case: The Helana |
Topics: Recognition What's happening: A British ship (the Helena) seized by Barbary pirates, then given to the Dey of Algiers (ruler). He was recognised by Britian. He sold the ship, and the original owners tried to get it back Result: Because Dey was recognised, transfer or property was upheld. |
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Jurisdiction (definition) |
A claim to jurisdiction is the right to regulate or enforce something or someone |
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Are states required to assert jurisdiction? |
No: Jurisdiction is permissive, a state may act where it has jurisdiction, but it does not have to act. |
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Exceptions to exclusive jurisdiction within territory (2) |
1. Rights of Aliens 2. Diplomatic immunities |
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Prescriptive vs. Enforcement jurisdiction |
Prescriptive: The ability to make rules (through domestic law, legislation) and interpret these rules to govern people, property, and transactions. Enforcement: The ability to take action consequent of rules to secure compliance to the rules, e.g. through arrest, investigate, prosecute... |
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Territorial Jurisdiction: Subjective vs. Objective |
Occurs where the action in one territory effects that of another Subjective: To regulate the activity where it originates Objective: To permit where the activity is felt to regulate the activity E.g. A person in State A fires a gun into State B. State A has subjective jurisdiction, State B has objective jurisdiction. |
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Concurrent Jurisdiction (and how it may be resolved) |
The ability for more than one state to have a claim over an object. To enforce the jurisdiction, depends on who has him. |
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Method of getting enforcement jurisdiction when not in own territory (and case) |
Illegal kidnapping/abductions - May be illegal under domestic laws, but international law does not care how a person gets into a country for them to exercise jurisdiction. - Case: Eichmann. Nazi who fled to Argentina, Israel kidnapped him from Argentina and Argentina did not care. Israel could then exercise jurisdiction. |
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Nationality as a basis for jurisdiction (and case example) (and potential complication) |
To assert jurisdiction over a person or corporation that is your national. May have consequences beyond border, and enforce when you come back into territory. Need to establish a genuine and effective link between state asserting jurisdiction and alleged offender - E.g. Nottebohm: There was no effective link between Liechenstein and Nottebohm Complication: More than one nationality? Whoever has a hold of him may enforce jurisdiction |
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What happens if your nationality changes after you alleged to commit a crime? |
Doesn't matter. Claim is based on nationality at the time of the offence |
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Passive Personality |
If you go beyond the territory, you carry the protection of the laws of your own state. It may be a basis for the state asserting jurisdiction over alleged offender if injured abroad. Problem: "Shaking hands the wrong way" may not be illegal in Canada, but in other countries? Contentious. |
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Protective Principle |
In very narrow circumstances, laws that are illegal in one country (that pose a threat to the state) may be enforced in another country E.g. Counterfeiting operations, espionage |
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Jurisdiction: Universality (examples where it is applied) |
All states may exercise jurisdiction because the crime is an offence to international public order e.g. piracy in international waters, any state may seize him and try him e.g. War Crimes, genocide |
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Hostes humani generis |
"Enemies of the human race" - Reason for universal jurisdiction |
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Case: S.S. Lotus |
Topics: Jurisdiction, phrasing of the question importance What's happening: A French ship, the Lotus, collided with and sank a Turkish Ship. Turkey arrested officer of Lotus and charged him, under passive personalty of the Turkish victims. Asked PCIJ if it was illegal under IL for Turkey to do this. Court says no, it was fine under objective territoriality (considered the Turkish ship part of territory at the time). It was up to France to prove that Turkey could not have right to jurisdiction rather than for Turkey to prove it could exercise jurisdiction because question was phrased in a way to see if they were contrary to IL. Turkey argues Passive Personality, Court decides on Objective Territoriality Reasoning: Because concurrent Jurisdiction, Turkey could charge Demons (officer of Lotus). Note: Law was good at time, but ILOS now presents specific rules on what to do, would not hold today. |
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Maritime Boundaries under UNCLOS III, and amount of jurisdiction |
Baseline: The low-tide mark on the coast. Measurements are out from this point. Internal Waters: From baseline inwards. Full sovereign jurisdiction, no right of passage, need to have permission to dock. Territorial Sea: 12 nautical miles. Exclusive jurisdiction over sea and airspace above. Right of innocent passage allowed for SHIPS (not planes) May suspend innocent passage indiscriminately for security reasons with prior notice. Foreign naval vessels immune.
Bays: Must be less than 24 miles across, and indentation area must be greater than or equal to a semi-circle with the line as the diameter. Internal waters. Continguous zone: From 12 miles to 24 miles. Limited jurisdiction, only with regards to stopping trafficking/smuggling, immigration, sanitation. Naval vessels immune. Surface only, may expand past 24 miles if mothership supplying small trafficking boats exits. E.g. Pulos case, Italian seize small boats smuggling cigarettes and go after mothership. Historic Bays: Inter fauces terrae, e.g. Delaware Bay (greater than 24 miles across) Exclusive Economic Zone: Have rights to resources in water column and seabed 200 miles out. "Legal continental shelf". International airspace: Greater than 12 miles out. High Seas: Greater than 200 miles out. Terra communilius. May have universal jurisdiction (e.g. piracy) or engaging in hot pursuit. |
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Archipelagic Zone |
For island nations (e.g. Indonesia), trouble drawing baseline around whole chain of islands and declaring everything inside internal waters. This zone is in between the islands, maintaining right of innocent passage. Land/water ratio must be between 1:1 and 1:9 |
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Hot Pursuit (rules) |
If a ship commits a crime in your territorial waters, it is permitted under UNCLOS III and customary law to continue pursuing it. 1. A government-authorised vessel must give visual or auditory signal to stop to be boarded first. (not radio) 2. Then, may pursue if they ignore it. May pass of pursuit to other vessels or planes 3. Once in another state's sea, must break off hot pursuit unless you have an agreement that you can continue pursuing. |
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High Sea Vessels |
- Must be registered with a state, all state-registered vessels have a right to sail. - Flag state has exclusive jurisdiction over that vessel - Genuine connection of nationality between vessel and state |
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Right of Approach |
I am a government vessel of State A. I see you and think you're engaged in piracy, slave trade. You're not identifying your flag. I may approach you, board you, try to find out what is going on. |
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Nationality (definition and outcome) |
The status of belonging to a state for certainpurposes. May be a basis for jurisdiction. - In IL, not based on ethnic, language, etc. It is simply the bond between person and state. |
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How to acquire nationality (2 mechanisms) |
By Birth: Where he is born or by blood (jus soli or jus sanguinis) By naturalisation |
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Citizenship vs. Nationality |
Citizenship: The internal mechanisms a state delegates rights to its people Nationality: A link between a state and a person. Does not necessarily grant citizenship rights. |
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Jus soil vs. Jus sanguinis |
"By birth" nationality. Jus soli = if you were born in that state, you are a national of that state. Jus sanguinis = by parental nationality Different states may have different laws of what grants citizenship. May result in dual nationality, or even stateless persons. It is a matter of domestic law to grant nationality |
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Naturalisation |
To travel to a new country and gain that nationality status. May maintain old nationality, matter of domestic law. |
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Involuntary Naturalisation |
1. By marriage 2. By territory exchanging between states 3. By being stripped of nationality |
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Nationality of Corporations in Canada (4 categories) |
1. Majority shareholders Canadian and incorporated in Canada: A canadian national, state obligated to intervene on its behalf 2. Majority shareholders Canadian but not incorporated in Canada: IL bars claims of protection, but may offer good offices, help find agreements and end disputes. 3. Incorporated in Canada, but not majority Canadian shareholders: Will not claim right of protection unless Canadian interest involved 4. Not incorporated in Canada and not majority shareholders: May not act on behalf of company, but may protect Canadian shareholders if needed. ONLY ONE CATEGORY (THE FIRST ONE) GIVES NATIONALITY STATUS WITH OBLIGATION FOR STATE TO INTERVENE ON BEHALF OF NATIONAL. |
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When may you exercise jurisdiction in the territorial sea? (4) |
1. Threatens the peace of the port 2. Master of shop or flag state asks for help 3. Consequences of crime extend to coast 4. Narcotics/drug trade |
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Stateless Persons |
They do not have nationally attached to them anymore. May be through universal succession (state dissapeared), state has stripped their nationality, some strange quirk with nationality. You are an alien wherever you go, and no state may exercise diplomatic protection for you. |
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Refugee |
May be stateless, but may not. Fleeing home state for political or persecution in that state. - Economic refugee - Political refugee - Climate refugee Different states have different requirements of what is a refugee. May expel refugee if seen as not legitimate, but should not return to country fleeing from. |
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Waves of human rights |
1st wave: Civil and Political 2nd wave: Social, economic and cultural 3rd wave: Economic, social development, self-determination, peace From "broad rights" --> "focused rights" |
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Currie's problems with human rights vis-a-vis government |
1. Waves of human rights, as gotten more narrow, less states sign treaties, too much intrusion 2. Universalistic language; cultural imperialism 3. Role of state vs. independent origin of rights; positivism vs. natural law, i.e. your grants are strictly given to you by the state, or some transcendental authority. Jus Cogens only really applies to genocide, war crimes, aggression.. 4. Problem with enforcement |
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Erga omnes |
Against all, with respect to all - In regards to human rights, they are obligations to all states to fulfil. Other states may complain about your human rights violations. |
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History of the HRC |
Charter mentions human rights, declaration of human rights in the '40s. UNCHR set up 1946, didn't really do anythign until 1967. Form letter responses. UNCHR after 1967 could investigate complaints, and after 1971 could debate complaints and make recommendations Highly politicised, becomes Human Rights Council in 2006. |
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Mechanisms fo HRC (2) |
Communications and Situations Communications: Receives complaints and screens them from individuals or groups. May reject if (1) politically motivated, (2) do not contain reliable claims, (3) domestic remedy not exhausted, (4) anonymous, (5) situation already covered by specific procedure If not rejected, SITUATIONS than takes up claim, asks for comment, can recommend, assign experts, keep under review. Source of pressure, but NO LEGAL BINDING STATUS.
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ICCPR (mechanism) |
International Covenant on civil and political rights - Took forever to get signed and come into force, very complex Mechanism - States may file complaints against other states (reciprocity), then hope to facilitate reconciliation (NOT LEGALLY BINDING) - Must exhaust local remedies, negotiations between states must have failed |
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Optional Protocol of ICCPR |
If signed, individuals (own nationals) may make claims to ICCPR about its state. Need to exhaust local remedy, not anonymous, submitted in writing... - If complaint survives process, may help achieve resolution. |
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European Court of Human Rights |
- Is a COURT, has legally binding power. Enforce sanctions - Originally set up for states to take other states to the court - Now, individuals and states may go to court, and represent themselves. Can give nationals within countries to appear on their own behalf. |
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Alien (5 points) |
- A national of one state in the territory of another - Admitted to the territorial state at their own discretion - Must obey laws of territorial state and afforded narrower rights (e.g. usually can't vote, property owning, employment) - May be expelled with due process - Your state may exercise diplomatic protection on your behalf. THEIR OWN DISCRETION; your state DOES NOT HAVE TO exercise right.
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Right of Diplomatic Protection (3 requirements and 3 outcomes) |
Requirements 1. State is injured in the person of its national 2. Gives rise to a claim between states 3. Bond of nationality Outcomes, state's discretion in regard to 1. Raising the claim 2. Settling the claim 3. Who gets compensation |
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Admission and Expulsion of aliens |
Admission - State's discretion on who to let in - Immigration: Social policy, certain categories may be deemed not suitable for immigration Expulsion - If you are a threat to public order - If you violate your terms of entry |
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Treatment of aliens to give rise of RoDP (2 approaches) |
1. National Treatment; you are treated on the same basis as the nationals of the territory state. Evoked to protect territorial state from foreign interference. 2. Minimum International Standard; may be less than or more than national treatment, argued by Western states, invoked due to deficient national treatment. May be linked to a human rights norm. |
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Calvo Clause |
Developed by Argentine International Lawyer; if we promise you,foreign company, to treat same way as nationals, you cannot go running to USA |
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Neer Claim |
Arguing for basis of international minimum standard of alien treatment. - After American killed in Mexico, America argued Mexico had not adequately investigated the perpetrators. - "Outrageous" and "bad faith" conduct of a state to fail to protect the alien or treat the alien. Reasonable man would consider insufficient. |
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Detention of foreign nationals |
- Minimum treatment, if jailed an alien, territorial state now responsible for his well-being. Should not suffer an injury under state's jail. |
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Territorial State Responsibility for aliens |
1. States cannot use domestic law to get out of International Law responsibility 2. State is responsible for the actions of higher officials, or failure to discipline lower officials 3. Responsibility for actions of private citizens if no reasonable protection/encourages a mob, or failure to punish individuals responsible (e.g. Janes case, lack of due diligence to pursue murderer) 4. Denial of justice |
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Denial of Justice (alien treatment, 4 preliminary objections) |
- Evokes territorial responsibility if 1) Unwarranted delay in bringing claim (e.g. Gentini) will throw out case 2) Alien should have "clean hands", i.e. injury suffered should not be disproportionate to his wrongdoing. 3) Injury should rise through a breach of domestic and international law. A denial of justice is a breach in international law, need to exhaust local remedies, or local remedies must violate international law (i.e. Morteson vs. Peters) 4) Bond of nationality, maintained from start to finish of process |
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Bonds of nationality in case of dual nationalism for making claims (2 positions) |
1. Orthodox position; neither can make a claim against the otehr 2. Master nationality; state with the stronger link to nationality may make a claim against the weaker link. e.g. Nottbohm. |
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North American Dredging Case |
Topics: Calvo Clause, Rights of Aliens, Right of Diplomatic Protection What's Happening: American company (North American Dredging) sign contract in Mexico with Calvo Clause, saying you cannot file claims against us foreign intervention, afforded national treatment. Still, company tries to file claim. Result: Court says USA may file claims against Mexico, because contract only binding to the company, not the State. However, breach of International Law must occur (i.e. denial of justice). Local remedies have not been exhausted yet, therefore North American Dredging cannot file case yet. |
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Seizing Property (of aliens) under international law |
- it is perfectly fine to a state to seize property under International Law, so long as it is for a public purpose, and is done indiscriminently and dealing out compensation |
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Compensation (2 mechanisms) |
1. Prompt, adequate and effective compensation - Argued for, especially by Western states, fits with minimum international standard - Full value of property should be compensated for - E.g. Sabbatino case, iffy compensation (need to buy sugar at inflated price to get bonds with low interest) 2. Lump-sum compensation - Challenges Prompt, Adequete and Effective compensation. But used in practice? - E.g. Canada v. Cuba, nationalisation of Canadian property there would be settled for $850000 - States may choose to settle how they wish. This is why this is allowed. |
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UNGA Resolutions dealing with Compensation |
1. 1962: Countries have permenant sovereignty over natural resources, may chose to expropriate, appropriate compensation paid after nationalisation. Compensation in accordance with international and local law, if dispute occurs, local remedies must be exhausted. 2. 1974: Charter on economic rights and duties of states, notes right of expropriation, and compensation should be set by DOMESTIC LAW only. Remember, UN resolutions are not law, give general opinion though. Clause in 1974 stating codifiying customary law was deleted. |
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IMMUNITIES (2) |
1. Diplomatic Immunities 2. Immunities of Commercial Activity by State Agencies |
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Case: Schooner Exchange v. MacFaddon |
Topics: Immunities, Jurisdiction What's happening: American boat (Schooner Exchange) seized by Napoleon and turned into navy vessel of France. Americans (MacFaddon) wanted to get it back. Result: Americans could not get it back, because France and America were at peace, and boat was a symbolic representation of the sovereign of France. Sovereign have immunity to local territorial jurisdiction. |
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Diplomatic Immunities (2 levels) |
1. Diplomatic Agents; Granted ratione personae (personal immunity). Cannot be arrested, cannot go into residence, cannot be subpoenated, may not be prosecuted, immunites extened to family 2. Consular Official, lower level of function. Granted ratione materiae (immunity from official acts), but may be arrested for a felony, prosecution, does not extend to family |
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Reason for diplomatic immunties (2) |
1. Early, archaic reason, diplomats are a symbol of the sovereign. You cannot enforce your jurisdiction over another sovereign. 2. Modern reason, functional theory of immunity. Immunities are provided to allow diplomats to perform their tasks |
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Functions of a diplomat (4) |
- Laid out in Vienna Convention 1) Represents sending state to the receiving state, symbolic or active role 2) Diplomatic protections interests of sending state 3) Negotiates with representatives of the receiving state 4) Diplomat reports to sending state on conditions in the receiving state through lawful means |
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Functions of a consular official (2) |
1. Promote trade 2. Provide assistance to nationals in the receiving territorial state Does NOT represent the sending state to the government of the receiving state. |
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Requirements for diplomatic relations |
1. Sending state receives consent from receiving state. There is no right to have an embassy. 2. Sending state must send name of ambassador and there attaches. Receiving state may say "no" to these people. 3. Ambassadors may be recalled, as a sign of displeasure. 4. Receiving state must acknowledge diplomat's status, possibly through diplomat visa or official list of diplomatic personnel |
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Withdrawing diplomaic status |
PERSONA NON GRATA, person not appreciated. Abuse of diplomatic privilages, receiving state can request immunity to be waived by sending state. Can expel diplomat if not waived |
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Diplomatic Missions (e.g. Embassy, Consular Offices) |
- Still the territory of the receiving state, however, receiving state does not have jurisdiction. Foreign officials cannot enter without permission. - E.g. Protesters sought refuge inSouth Africa in a foreign consular office. South Africa could not go in, but could block route to bathroom. - Duty to protect these places - Diplomatic Pouch, e.g. courier, documents and communication should have protection too. E.G. TEHRAN HOSTAGE CASE, America embassy not protected. |
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Tehran Hostage Case |
Topics: Diplomatic Immunities, Embassys What is happening: US Embassy in Iran seized by mob. No Iran security protection. Iran took steps in previous occasions to protect US premises. Iran did not partake of proceedings, but case wnet forward. Result: Because of customary law to protect ambassador security (very old customary law!), Iran failed to act to protect, and Iran approved occupation (protect safety of student mob). Iran violated international law, could have expelled diplomats earlier if displeased. |
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Immunity for Foreign Corporation Actions (2 theories) |
1. Absolute Immunity: Sovereign enjoys immunity in aforeign court. Cannot be sued without consent. 2. Restrictive immunity, there is a distinction between acts jure imperii and acts jure gestionis. Acts jure imperii given immunity. |
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Jure imperii vs. Jure gestionis |
Looking at the purpose or the nature of the activity. Jure imperii: Acts that are sovereign/governmental in nature Jure gestionis: Acts that are private in nature. |
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Case: Victory Transport |
Topics: Immunity of Foreign Corporations acts What's happening: A foreign agency of Spain (comisaira) was being sued by Victory Transport because their chartered boat was damaged in a port which was unsafe. Could it be sued? Result: The Comisaria could be sued because they were engaged in an ordinary commercial transaction (jure gestionis). Restrictive immunity approach. Tate Letter announced intention to follow restrictive theory of immunity. State Departnent did not suggest immunity, either. Arbitratoin clause significant proof for commercial act. Cited case where even wartime transport of grain was not considered Jure imperii. |
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Ways to settle disputes peacefully (7) |
Direct Talks: Political and bilateral, not legally binding, voluntary. Most common way. Creates a communication channel, delays response, get information out of a state, embarrass you, project image of being reasonable. Good office: Third party provides, political, voluntary. Third-party does not impose settlement. Way to induce direct talks, provide neutral facilities. No obligation to accept. Mediation: Third party talks between states, states cannot even be in same room, may see both positions and offer suggestion to resolution Inquiry: Political, third-party. Based on idea to establish facts, find a clear narrative. Move towards a settlement. Concilliation: Includes both mediation and inquiry. Offer resolution/settlement, but not legally required or obligated to accept settlement. Arbitration: Legal, third party. You choose panel, you chose question. you specify rules and you specify nature of the reward. Compromis - governs the terms of the arbitration. Judicial Settlement - E.g. ICJ, statue sets up rules of the court. Judges already selected, but you can nominate a national if not there.
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Judiciable vs. Non-judiciable |
Judiciable: Willing to use legal means to settle a dispute Non-judiciable: Not guided by legal principles to settle a dispute. In theory, everything judiciable. In practice, sometimes do not use legal means, because law may be seen as unsatisfactory (european imperialism), or "i know i'm right so why go legal"... |
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Why move to legal means of settling disputes? |
You have less power in the outcome, however 1) ISOLATES the dispute from broader relations 2) DOMESTIC POPULATION DEMANDS 3) Threat to be taken more seriously 4) POWER DISCREPANCY, more powerful does not wish to be seen as bully. Third-party ok. 5) CLARIFICATION of the law 6) Break STALEMATES 7) Think you'll WIN THE CASE |
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Motives for accepting a loss in a legal method of settling a dispute (3) |
1. Established clarification of the rules for the future 2. REPUTATION of being law-abiding 3. Court may give a graceful way out. To public: Don't blame us, the court says we need to do this. |
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Limitations of the ICJ to have a case heard (4) |
1. Contentious cases between states 2. Standing, must have material interest or involvement (cannot drag third party in) 3. Decisions are binding and final 4. Decisions left to states to carry out, but may go to Sec Council to help enforce (rare, only done once or twice e.g. Corfu Channel) |
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How to determine whether the ICJ has jurisdiction over a case |
1. States must consent to be broght before th court. May give consent by case-by -case basis, may have signed treaty with other state, or may have signed compulsory jurisdiction clause 2. Reciprocity, see if conditions between two states overlap |
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Compulsory Jurisdiction Clause |
1) Optional clause, countries choose whether to sign it or not 2) If signed, they agree that they may be brought to the court with respect to any other country that has also signed it 3) May impose reservations onto the clause of which it is not able to be brought to the court. Cannot bring others to the court with these reservations; reciprocity. |
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Case: Nicaragua Case |
Topics: ICJ jurisdiction What was happening: Nicaragua, not party of PCIJ, brings USA to ICJ over their military operations in the country. USA says no jurisdiction, because three days before sent letter modifying acceptance to Article 36. Previous, 6 month termination notice in USA acceptance to Article 36. ICJ did have jurisdiction Reasoning: Though never ratified PCIJ, no states protested it rolling over into ICJ (acquiescence). USA also has obligation to accept six-month termination term originally when signed. USA argued that acceptance was less restrictive, therefore Nicragua should respect therefore could terminate. USA argue political case, should be sent to Security Council. ICJ does not find practice of Security Council to deny ICJ jurisdiction. USA did not participate in proceedings. |
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Canada's acceptance to ICJ compulsory jurisdiction |
- Accept compulsory jurisdiction accept in matters 1) That agreed to have other method of peaceful settlement 2) Commonwealth countries 3) Disputes regarding questions which IL fall exclusively within the jurisdiction of Canada (e.g. Arctic navigation issues Canada can notify at any time changes to status under clause, and have immediate effect. |
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Uses of Force short of war (8) |
1. Retorsion 2. Reprisal 3. Blockade; pacific and belligerant 4. Sanction (UN backed and other) 5. Humanitarian Intervention 6. Self-Defence (Article 51) 7. Other minor 8. UN Enforcement Action |
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Use of force before UN Charter |
- Uses of force were seen as normal instruments of foreign policy. IL today is result of post-charter era |
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Article 2(4), and exceptions: |
All membersshould refrain from the threat or use of force against the territorial integrityor political independency of any state, or in any other manner inconsistentwith the purpose of the UN. EXCEPT in limiting circumstances: e.g. self-defence |
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Retorsion |
- Acts that are unfriendly, but legal. - E.g. terminating a treaty, calling home diplomats - Doesn't include the use of force, so legal under Article 2(4) |
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Reprisal (3 conditions) and case e.g. |
- Action that is normally considered illegal under IL, but is in response to a previous illegality. Reprisal is legal if: 1) There was a previously illegal act committed against it 2) Seek of redress was unsatisfactory 3) Proportionate action response Case: The Naulilaa |
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Case: The Naulilaa |
Topics: Use of force (reprisal) What's happening: This is pre-Charter era. Missunderstanding between Germany and Portugal, resulting in German forces killed. Germany sent troops to attack Portugese forts in Angola. Attacks were not legal. Reasons: 1) There was no prior illegal act contrary to international law, rather it was a misunderstanding. 2) There was no attempts to try to get redress. 3) The German response was out of proportion to the acts against the soldiers. |
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Blockades (2 types and e.g.) |
Pacific Blockades: Party stops shipping of the state it is blockading, e.g. Britain, Germany and Italy blockade Venezuela in early 20th century initally pacific. Belligerant: Stop ALL THE SHIPPING from getting through, preventing contraband from getting to the state. All shipping to targeted state is stopped. Act of war. Famous e.g. Cuban Missile Crisis, all shipping blocked to Cuba, not called a "belligerent blockade" because implies war. "Quarantine" euphemism for blockade. |
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Sanctions (and e.g.) |
- May be diplomatic (e.g. expel people) or economic - May be used by the Security Council to pressure, first step in the use of force. E..g UN Sanctions against Iraq from 1990 - 2003. Through 661 committee (freeze Iraqi assets abroad, though could import certain items still) and Resolution 687 (sanctions continue to encourage disarmament) |
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"Smart Sanctions" |
Targetting key figures to give pressure at amore narrow focus, get at elites as to not impose hardship on the entire population |
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Humanitarian Intervention |
- States can send assistance to de jure government to deal with rebellion. Legal if not considered belligerents - State can intervene at request of government in civil disorder, and evacuate nationals peacefully |
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Responsibility to Protect (R2P) |
When states broke down and incapable offunctioning, or when themselves engaged in massive persecution of population,then International Community has responsibility (/option) to get intosituation, including by use of force Article 2 Paragraph 7: Security council can get involved in threats to international peace and security. May also suggest that even without Security Council approval, under certain exceptional circumstances, okay to go in. (E.g. Kosovo, Libya) |
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Self-Defence (and case |
Article 51: You can defend yourself against an attack and your allies can too. Should report to security council, and defend self until SC takes action. Case: Caroline Case |
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Caroline Case |
Topic: Self-Defence What's happening: Caroline, an American ship, set on fire and over Niagara falls by British/Canadians. Britain claimed was self-defence. Webster responded, giving two condition for self defence: 1) Suffer armed attack with no other recourse 2) Response is not disproportionate |
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States claiming self-defence must show: |
1) They suffered an armed attack, with no toher recourse or means 2) Response is not disproportionate. |
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Case: Osirak reactor |
Topic: Self-Defence What's happening: Israel attack Iraq nuclear reactor Osirak reactor. Was not legal. Reasoning: Threat was not imminent. |
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Minor uses of force short of war (and e.g.) |
Neutral states must not use their territory to be used by belligerent states when they are at war to attack another state E.g. Switzerland; shot at both allies and axis aircraft during war Use of force to defend neutrality is legal. |
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UN Enforcement actions |
- When the UN is allowed to use force in response to a breach of the peace. Few examples: 1) Korean War 2) Iraq invasion of Kuwait response |
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Military Staff Committee |
Part of the security council to be used in UN enforcement actions. Never actually fulfiled role in Korea war or Gulf war. Korea: Run by Americans Gulf: Run by Americans |
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Iraq invasion of 2003 |
After resolutions 1441 and resolutions 687 were felt not enforced, USA (with Australia and Britain) said they would enforce them anyways. DID NOT ENVOKE ARTICLE 51 Still seen as illegal action. |
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Use of War |
Before league of nations: Seen as an instrument of foreign policy. After league of nations: Attempt to low down resort to war. Did not directly outlaw war. Kellogg-Braind Pact: Signatories should not go to war |
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What is aggression |
- Outlined by UNGA in 1974: First use of force prima facie is illegal, unless SC says so. Aggressive acts include: Invasion/attack, bombardment, blockade, attacks against forces, use of armed forces in another territory, allowing territory to be used by third state to use force against someone, sending mercenaries |
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Resorting to force Rules |
Jus ad bellum; the right to resort to war Jus In bello; laws within war |
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Jus ad bellum |
- War must be declared between states - Just War Theory: Just cause to go to war, reasonable cost, exhausted peaceful alternatives, and right intent |
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Jus in bellow (3 principles) |
1. Necessity: Force only used within the international restrictions of the conflict. Compel submission to the purpose of the war. 2. Humanity: Cannot inflict suffering or destruction, should not target civilians, should only target military functions 3. Chivalry: Certain formalities observed, e.g. not misusing truce flags, proper surrender, treatment of POWs |
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Regulated weapons in war |
1. Some weapons outlawed altogether (e.g. biological/chemical) 2. White-phosphrous 3. Cluster ammunitions 4. Land mines 5. Nuclear weapons to a degree |
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Nullen crimen sine legum |
No crime without law |
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Case: The Hostages Case, Wilhelm List |
Topics: Laws of War What's happening: Could defendants claim superior order for their execution of hostages of civilians? No. Could not claim ex post facto law. Reasons: Only lawful orders may of superior may be used as defence, orders were not lawful. Also, law against war crimes already exist. Must give hostages due process, look at every available process before taking hostages. Reprisal out of proportion, and cannot destroy with the intent just to destroy (not just, not right intent) |
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ICC |
An attempt to take individuals before a court for their war crimes. Not meant as first legal line of action, rather, when domestic law cannot carry out function. - States may refer cases to ICC - UNSC may refer to ICC - ICC prosecutor may intiate invstegation |
