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108 Cards in this Set
- Front
- Back
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Nicaragua v. US
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-US got involved in Nicaraguan affairs- helped paramilitary groups and embargoed goods to get at Nicaraguan government
-most famous ICJ case -US refused to recognize ICJ jurisdiction -US tried to get out of ICJ obligation, but couldn't because of Vienna Convention on the Law of Treaties (must give 6 months notice) -US never paid judgment; ultimately withdrew from ICJ -elevated status of ICJ: ruled on something that was already before the Security Council |
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International Criminal Court
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-tries individuals
-International Criminal Court -special role of prosecutor -located in the Hague -tried Lubanga (Congo) -US, Russia, and China not members -permanent, independent court -difficult to complete cases -only steps in when country is deemed incapable of dealing with situation -18 judges |
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International Court of Justice
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-purpose: to resolve disputes and give advisory opinions on issues that arise under International Law
-UN Charter articles 92-96 -15 judges, each from different UN member state -serve 9 year term -must be independent -can only be dismissed by ICJ vote -noncompulsory jurisdiction: states must consent to be a party, but, if consent, must comply with the decision (if don't, SC can use enforcement measures) -a state may consent at any time -national declaration to accept ICJ jurisdiction unconditionally, for a limited time, or on the condition of reciprocity -tries states, not individuals -no judicial review -no stare decisis -no bailiff or prison system to detain defendants |
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Nuremberg
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-precursor to ICC
-tried Nazi war criminals -12 trials held -principles: crime of aggression is punishable -responsible leaders have individual criminal liability |
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Rome statute
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-created ICC
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ICC cases
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-Northern Uganda
-Congo -Darfur -Central African Republic -Kenya -Libya -Cote d'Ivoire -Mali |
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Principle of Effective Nationality (Nottebohm Principle)
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-legal bond with requirements:
-social fact of attachment -genuine connection of existence, interests, and sentiments -reciprocal rights and duties -came from Liechtenstein v. Guatemala |
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Liechtenstein v. Guatemala
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-Nottebohm = German living in Guatemala
-Guatemala was arresting Germans in WWII era -obtained citizenship from Liechtenstein -Left Guatemala and was arrested upon return -Guatemala went to ICJ saying Liechtenstein couldn't give citizenship -ICJ says he either has to go back to Liechtenstein or risk imprisonment in Guatemala |
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Dual nationality
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-person born in one country from parents of another, OR
-person acquiring new nationality without forfeiting the original -subject to conflicting obligations |
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Refugees
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-person fearing political persecution who is outside the home country and unwilling to return to it
-must reach border of other state in order for that state to be bound to protect them through asylum |
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Nonrefoulment
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-duty of non-return
-States can't forcibly return refugees to home state if lives in danger -only applies to aliens physically in host country |
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wet foot, dry foot
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-US policy for Cuban refugees
-a Cuban caught in waters between the two nations would be sent home -Cuban who makes it to shore can remain in US and may qualify for expedited status as legal permanent resident of US |
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UN Convention Relating to the Status of Refugees
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-no state shall expel a refugee whose life is in danger
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Elian Gonzales
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-Cuban kid whose mom died fleeing to America
-lived with uncle in FL -dad in Cuba wanted him back -Court sent him back to Cuba -Now Cuban politician |
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Statelessness
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-individuals without legal bond of nationality with any state
-undocumented or refugee with no proof of nationality -state doesn't have to grant citizenship -US: if born here, guaranteed citizenship regardless of parent status |
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Home State Rule
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-state of incorporation has capacity to represent corporation in international proceedings
-corporations only have one state, which is the state in which they are registered |
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Barcelona Traction, Light and Power case
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-ICJ case
-Company operated mostly in Spain, but most investors were Belgian, but had Canadian PO box -ruling: only Canada had standing to represent the company in international Court -case dismissed because Canada didn't care |
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Permanent Court of International Justice (PCIJ)
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-established with League of Nations
-activity ended at beginning of WWII -precursor to ICJ -1922-1946 |
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nationality principle
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-state can regulate conduct of citizens even if the conduct occurs abroad
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territorial principle
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-jurisdiction determined by the location of the defendant's act
-can start and end within the same state, or can start in other state and have effect in that state |
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Effects Doctrine
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-if an act in state X has an effect in state Y, state Y has jurisdiction
-SS Lotus case |
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SS Lotus case
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-tried in PCIJ
-French steamship hit Turkish steamship and killed some Turkish people -French captain (Demonde) was arrested in Turkey for negligence -French said since they were on a French boat, Turkey didn't have jurisdiction -PCIJ sided with Turkey because of Effects Doctrine -said they had concurrent jurisdiction |
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Passive Personality Principle
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-jurisdiction based on the nationality of the victim when the crime occurs outside the prosecuting state's territory
-least applied jurisdictional principle -means potential prosecution of anyone anywhere who harms citizens of prosecuting state |
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Special Maritime and Territorial Jurisdiction
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-US law
-US has jurisdiction over crimes committed on a ship if: 1. ship is US-owned vessel 2. crime occurs in US territorial sea 3. Victim or perpetrator is US national on any vessel that departed from or will arrive in a US port -extends ability of US to enforce fed laws in international waters -federalizes common law and state law criminal offenses to the high seas, which are committed beyond jurisdiction of any state |
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US v. Roberts
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-Roberts charged with sexual abuse of a minor on a Carnival Cruise
-ship was in international waters -Roberts was a national of St Vincent and the Grenadines; employed on the ship -victim was US citizen |
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Protective Principle
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-conduct must threaten the security, territorial integrity, or political independence of the State
-permits prosecution of citizens and non-citizens outside the state -doesn't need to be an actual effect within the state -usually not used unless accompanied by something else -used by US with suspected terrorists -pre-empt the effect by unilaterally asserting jurisdiction |
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Universality Principle
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-"Nowhere to Hide" principle
-recognized crimes: 1. genocide 2. torture 3. piracy 4. slavery 5. war crimes |
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Israel v. Eichmann case
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-Israelis took guy who committed genocide at Auschwitz out of Argentina and executed him
-Israel wasn't even a state at the time, so no jurisdiction |
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Peremptory Norms (jus cogens)
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-fundamental principle that is accepted by all states as a norm that cannot be deviated from
-crimes: aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture. -Article 53 of the Vienna Convention on the Law of Treaties: any treaty that conflicts with a peremptory norm is void |
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Article 53 of Vienna Convention on the Law of Treaties
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-any treaty that conflicts with a peremptory norm is void
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Political Question Doctrine
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-an exception to jurisdiction under US law
-judiciary doesn't resolve controversies that fall within province of political branches |
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Act of State Doctrine
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-an exception to jurisdiction under US law
-avoids judicial resolution of challenges to the conduct of foreign leaders within their own territories -Hickenlooper Amendment: must ask the state department for permission to try these cases |
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Extradition
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-process by which one nation surrenders someone accused of a crime to another nation
-there is no duty to surrender an accused to another country in the absence of an extradition treaty -extradition treaties must delineate extraditable offenses -a nation can't use irregular alternatives to extradition |
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Clean Hands Doctrine
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-a state must come to court with "clean hands"
-can't use irregular or illegal means to obtain a wanted criminal and bring him back to the State for trial |
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Alvarez-Machain case
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-Alvarez-Machain was a Mexican doctor who healed a DEA agent after being tortured just so the drug lords could continue torturing him
-US went and took him without waiting for Mexico to extradite him -CA judge dismissed the case due to "unclean hands"; SCOTUS ruled that the case could move forward; CA judge dismisses it again on grounds that the prosecutor failed to present evidence -he then filed suit against the DEA for kidnapping -he lost because of Alien Torts Claim Act |
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Alien Torts Claim Act
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-old law (1789)
-says that a civil suit can be filed in US court between two foreign citizens for human rights violations committed abroad -district courts have original jurisdiction of a civil action by an alien of a tort committed in violation of the law of nations or a US treaty -parties must be aliens -defendant must be served in the US -must be violation of a "well-established, universally recognized norm of international law" |
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Political Offense Exception
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-an exception to extradition
-extradition can be denied when the requested State classifies the crime as a "political offense" -basically, they don't have to turn someone over if they believe there will be political fallout |
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Human Rights Exception
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-an exception to extradition
-extradition can be denied if the laws of the requesting state are perceived to violate human rights |
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Kiobel v. Royal Dutch Petrolium
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-SCOTUS case
-Question: can a corporation be held liable for violations of a law of nations just like a private party? -SCOTUS said the Alien Torts Claim Act was never meant to extend far enough to apply to these cases |
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Treaty
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-international agreement in writing
-governed by international law -can be made between states and international organizations -bilateral = agreement between two states affecting only them (example: extradition) -multilateral = international agreement between 3+ states (example: UN Charter, OAS treaty) |
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1969 Vienna Convention on the Law of Treaties
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-Deals only with written State treaties
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1986 Vienna Convention on the Law of Treaties Between States and International Organizations
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-deals both with states and international organizations
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Eastern Greenland case
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-established that a treaty must be in writing; oral agreements are not binding
-Norwegian foreign minister (Ihlen) said that Norway would not prevent Denmark from exerting sovereignty over Greenland -case went to PCIJ |
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self-executing treaty
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-international agreement requiring no further action (like ratification) to impose binding obligation on its signatories
-instantly incorporated into international law and the internal law of each signatory -most bilateral treaties -individual states cannot enact conflicting legislation |
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Declaration of intent
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-international agreement that establishes a standard of achievement for all parties
-requires individual state action after signing the treaty -multilateral treaties: must be ratified -ex: UN Charter |
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United States Conflict Resolution Laws
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-executive can make treaties with 2/3 agreement of Senate
-treaties and federal statutes are on the same footing (Article VI) -last in time principle: most recent wins -treaties trump agreements under the Constitution |
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ICJ Reservations case
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-Genocide Convention
-US made reservation to Genocide Convention for cases of "national security" -ICJ ruled that that was too broad and defeats the purpose of the Convention -established that reservations to treaties must be compatible with the "object and purpose" of the treaty |
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Steps in creating a multilateral treaty
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-negotiation
-signature -ratification -entry into force -registration Possibilities: -reservation -invalidity |
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Reservation
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- a state's unilateral variation from the language of a general term contained in the text of a treaty
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Negotiation
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-State representatives must meet at a conference to hash out the terms of a treaty
-State representatives must have the authority to negotiate, or else treaty is invalid |
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Entry into Force
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-provision in multilateral treaty to ensure that an agreed upon minimum number of states ratify the treaty before it goes into effect
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Registration
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-treaty sent to the UN Secretariat or appropriate international organization for public dissemination
-intended to avoid secret treaties |
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invalidity
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-treaty is invalid if State officials don't have the authority to negotiate
-use of coercion or unequal bargaining power invalidates the treaty's legality -VCLT Article 53: a treaty is void if it was procured by threat or force |
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Vienna Convention Law of Treaties Article 53
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-statute that states that a treaty is void if it was procured by threat or force
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Peru v. Colombia
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-asylum case
-Peruvian ambassador in Colombia (Victor Raul Haya de la Torre) charged with inciting a riot in Peru, but offered asylum in Colombia -ICJ ruled that the grant of asylum was improper; he was not in danger of being persecuted for political reasons |
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North Sea Continental Shelf cases
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-ICJ cases
-Germany v. Denmark and Germany v. the Netherlands -Denmark and the Netherlands argued for equidistance; Germany argued for equitable distribution -ICJ sided with Germany |
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Equidistance Principle
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-used for determining which waters belong to which State
-draw straight line out from the shoreline until it meets that of the other state; that is your territory |
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Equity Principle
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-used for determining which waters belong to which State
-says States must negotiate and come up with equitably distributed sections of the sea -based on US/Canada |
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Persons with standing under international law
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-international orgs
-nations -nongovernmental orgs -corporations -individuals examples: UN, NATO, China, Greenpeace, Wal-Mart, Peter Varlan |
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Public International Law
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-aka Law of Nations
-body of rules that nations consider to be binding on their mutual relations -law based on the consent of nation-states |
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Private International Law
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-involves conflict of laws
-body of substantive law that a nation applies to private transactions that involve two different states -States are not required to defend the interests of their citizens in these disputes example: breach of contract suit between corporations or individuals of different countries |
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Hugo Grotius
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-father of International Law
-wrote "The Rights of War and Peace" |
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Rule of Law
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-beginnings of international law
-challenged Church control -natural law: immutable norms inherent in any ordered system -positive law: man-made law based on consent -enforcement through mutual cooperation -no International Organization |
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Peace of Westphalia (1648)
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-ended the 30 Years War
-formally established the nation-state system -established right of states to establish own religion -established concept of state sovereignty -established concept of territorial integrity -established right of noninterference by other states |
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The Hague Conferences
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-1899 and 1907
-created first international legal mechanisms -established principle of universality |
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Concert of Europe
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-1815-1878
-shift from bilateral to multilateral diplomacy -introduced concept of collective action -introduced concept of special status of "great powers" |
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Sources of International Law
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1. International Conventions or Treaties
2. International Custom 3. General Principles 4. Judicial Decisions 5. Scholarly Writings 6. UN Resolutions |
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International Conventions and Treaties
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-one source of International Law
-international written agreement of rights and obligations concluded between states and governed by international law -may bind nonparties as a matter of CIL if it codifies the general practice of many -examples: UN Charter, OAS Charter |
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International Custom
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-one source of international law
-established state practice accepted by many nations -can be regional or universal -4 elements: 1. duration or passage of time 2. Substantial uniformity or consistency of usage between states 3. Generality of the practice, or degree of abstention 4. Opinio Juris: recognition that it is binding |
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4 Elements of Customary International Law
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1. Duration or passage of time
2. Uniformity or consistency of usage between states 3. Recognition by states that the custom is binding (opinio juris) 4. Degree of abstention or generality of the practice |
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Julian Assange
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-creater of WikiLeaks
-wanted by US for espionage and by Sweden for sexual assault -granted asylum in Ecuadorian embassy in London |
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General Principles
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-one source of International Law
-principles of national law that are generally applied by many nations -serve as stopgaps for judges when treaties/CIL fail examples: good faith, equity, judicial independence |
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Judicial Decisions
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-one source of International Law
-International Tribunal looks to national court decisions -decisions from one State can't create or modify international law -national courts look to the decision of a foreign court |
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UN Resolutions
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-General Assembly: recommendations having no legally binding force for member states
-Security Council: reactions to violations of existing international law principles |
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Scholarly writings
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-source of international law
-courts look to recognized, unbiased publicists -writings memorialize historical and contemporary developments and trends in state practices |
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State
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-a person of international law that has special rights and obligations in international relations
-4 elements: 1. permanent population 2. defined territory 3. effective government in control 4. capacity to enter into relations with other states |
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Elements of Statehood
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1. Permanent population
-can be small and transient -does not require express grant of nationality 2. Defined territory -doesn't need to be fixed by definite boundaries (like the US during expansion period) 3. Effective government in control -civil authorities must be able to assert control over the population/territory without foreign assistance (such as security responsibility) 4. Capacity to enter into foreign relations -most important criterion -only the national government has this capacity |
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Recognition of States
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-one state's willingness to establish official relations with another state or government
-3 types: 1. decision to recognize another state -recognized state fulfills criteria for statehood (de facto) -states recognize "equality" under international law -doesn't play a role in whether or not an entity is actually a state 2. decision to recognize the new government of another state 3. decision to recognize a condition of belligerency or rebellion in another state -third-party state must remain neutral |
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Collective Recognition
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UN: doesn't recognize states or governments
EU: 5 requirements: 1. Respect for UN Charter 2. Guarantee human rights protections for minorities 3. respect for inviolability of frontiers 4. acceptance of international commitments regarding disarmament and nuclear programs 5. must commit to arbitration of all disputes |
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Duty to Remain Neutral
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-required of states under international law when there is a condition of conflict to which the state is not a party
-no taking sides or assisting either party to a conflict -no allowing your own territory to be used as a base for hostilities by either side of a conflict -no acquiescing to restrictions imposed by the parties -must accept responsibility under international law for any violation of duty of neutrality example: conflict between Russia and Georgia, French intervention in Mali |
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Succession
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-one state takes over the territory or government of another state, which ceases to exist
Methods: 1. Conquest (Iraqi invasion of Kuwait) 2. Merger (East/West Germany) 3. Occupation (US in Iraq) 4. Independence and Partition (India/Pakistan) |
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Effects of Succession on Successor State
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1. Treaty Obligations
-no general rule for bilateral treaty obligations -political treaties (like alliances, neutrality, or trade treaties) usually cease to exist except in mergers -multilateral treaties survive succession if they are rooted in CIL (like Genocide Convention) 2. Property and Debt Obligations -property and debts of extinct state become property and debts of successor state, unless the obligations violate the public policy of the successor state -1983 Vienna Convention on Succession of States in Respect of Property, Archives, and Debts: succession does not extinguish obligations owed by former state to public or private creditors 3. Citizens and the Successor State -when a state ceases to exist, so does its citizenship -Successor State confers its citizenship on citizens -successor state can't force its citizenship on individuals, but must offer it 4. Succession of Governments -new government can't claim a clean slate |
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Doctrine of Habitual Residence
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-successor state must confer its citizenship on those who were citizens of the extinct state
-can't force citizenship on individuals, but must offer it |
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Secession
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-break-up of a state to achieve independence
-effects: -states that have seceded get a "clean slate" except for treaties that embody CIL |
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Self-determination
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-indigenous population has right to choose self-governance or some form of autonomy (ex: decolonization of Africa)
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State sponsor of terrorism
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-a state proactively giving tangible support to terrorist organizations, such as money and weapons, or verbally publicly condoning terrorist actions
ex: Iran verbally acknowledges/condones certain Hezbollah actions and gives them money, so could be held accountable |
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State Responsibility
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-failure to observe a norm of State practice or a treaty obligation renders the state responsible under international law for its wrongful act or omission
-when a state commits a wrongful act act or omission against another state, it is required to make reparations for that harm -3 elements triggering state responsibility: 1. existence of legal obligation under international law 2. an act or omission that violates that obligation 3. loss or damage caused by the breach of the obligation standard of proof = strict liability -general rule: conduct of private individuals or entities is not attributable to a state under international law with 2 exceptions: 1. requires effective state control of private actor 2. state subsequently acknowledges and adopts private conduct that causes harm |
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Corfu Channel Case
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-British ship going through the Corfu channel (Albanian waters used as international highway) triggered explosive left from WWII
-caused damage to British ship and killed people -British went back and removed all explosives -Court said Albania responsible for the incident -Court said that the UK didn't violate Albanian sovereignty |
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Rainbow Warrior Affair
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-French operatives blew up a GreenPeace ship docked in New Zealand because it was planning to disrupt their nuclear tests
-NZ caught 2 French operatives; France wanted them extradited -arbitrated by the UN SecGen -France was held responsible, as were the individuals |
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Sovereign Immunity
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-immunity from suit enjoyed by states and certain international organizations in the courts of other States
-all states are entitled to equal treatment -although a state may incur state responsibility for certain conduct, its status as a sovereign entity may shield it from having to respond to suits in the courts of other States unless sovereign immunity is waived by consent 2 types: 1. absolute immunity: total immunity from suit in other states -heads of state aren't subject to any civil or criminal prosecution during and after leaving office for acts committed while in office (except for certain crimes) 2. Restrictive immunity -an entity owned or operated by the state in a commercial or private capacity is not immune -so, if the entity's conduct is private or commercial, then no immunity |
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Foreign Sovereign Immunities Act (USA)
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-exclusive means of suing foreign officials in US
-presumption that foreign officials are immune in US -EXCEPTIONS: 1. commercial activities -waive immunity if foreign officials engaged in private commercial activity 2. real property -waive immunity if foreign official owns property in the US 3. tort exception -victim can sue a foreign official for a tort committed on US soil 4. waiver by treaty, contract, or appearance 5. waiver for officials from blacklisted states |
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US invasion of Panama
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-1989
-purpose: remove Noriega -reasons for intervention: combat drug trafficking, safeguard the lives of Americans in Panama, defend democracy and human rights, protect Panama Canal |
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Augosto Pinochet
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-Chilean military leader who overthrew the president
-committed various human rights violations; extradited from UK to Spain to Chile -died in custody before trial |
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Charles Taylor
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-president of Liberia after his rebel army won the Liberian civil war
-also aided rebel movement in Sierra Leone -arrested, tried, and convicted in Hague for 11 counts of war crimes |
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Omar Hassan Ahmad al-Bashir
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-Sudanese President
-wanted by ICC prosecutor for genocide, crimes against humanity, and war crimes in Darfur |
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Radovan Karadzic
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-former President of Republic of Srpska
-currently on trial for genocide, crimes against humanity, and war crimes at the International Criminal Tribunal for the former Yugoslavia in the Hague |
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League of Nations
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-League Covenant: 2 basic principles
1. member states respect "territorial integrity and political independence" of states 2. Collective security: aggression by one state should be countered by all members with economic sanctions and force if necessary Structure: 1. The Council -consisted of the great powers -settler of disputes/enforcer of sanctions 2. The Assembly -based on "universality" of membership Reasons for failure: 1. failure of collective security outside of Europe -Japan invasion of Manchuria -Italy invasion of Ethiopia 2. US refusal to join the League due to isolationism |
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The United Nations
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-public international org
-doesn't have supranational power -based on principle of sovereign equality -based on principle of nonintervention -possesses legal capacity in international law -purpose: to maintain international peace and security through means of collective security -organs: 1. Security Council 2. General Assembly 3. Economic and Social Council 4. Secretariat 5. International Court of Justice 6. Trusteeship Council |
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6 Organs of the UN
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1. Security Council
2. General Assembly 3. Economic and Social Council 4. Secretariat 5. ICJ 6. Trusteeship Council |
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Security Council
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Purpose:
-maintain international peace and security and act on behalf of all member states (Article 2.4) -consists of 15 states (permanent members: US, UK, France, China, Russia) -nonpermanent members = 10 rotating states -G4 nations vying for permanent membership: Brazil, India, Germany, Japan -action requires unanimity among permanent members and at least 4 nonpermanent members |
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UN Charter, Chapter VII
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-Procedure for authorizing the use of force
-Article 39: SC determines existence of threat to the peace, breach of peace, or act of aggression -Article 41: SC authorizes use of nonmilitary measures to restore international peace and security -Article 42: If SC determines measures of Article 41 to be inadequate, it may use military force |
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General Assembly
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-193 members, each with one vote
-forum for exchange of ideas -venue for members to vent grievances and frequently resolve issues with neighboring states -can discuss, consider, initiate studies and make recommendations to the SC Functions: -admit new members -elect nonpermanent members of SC, ECOSOC, and the Trusteeship Council -appoint judges to ICJ -appoint Secretary-General on the recommendation of the SC -resolutions articulate new principles and norms |
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Uniting for Peace Resolution
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-ensures prompt GA response if SC fails to act
-question of how to determine failure to act |
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Economic and Social Council (ECOSOC)
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-54 rotating members
-purpose = promote observance of human rights and general welfare of the individual -essentially a public policy think tank; no teeth -conducts studies and issues reports on social, economic, cultural, educational, and health matters |
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Trusteeship Council
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-purpose = administration of territories incapable of self-government (like Pacific islands)
-suspended after Palau became independent in 1994 -now considers new role: failed states |
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Secretariat
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-administers all UN programs
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Secretary-General
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-appointed by GA on SC recommendation
-can't be a national of a permanent member -no real authority over states -selection subject to veto by any permanent state -typically serve 8-10 years, but no actual limit -engages in preventative diplomacy -can bring any matter that threatens international peace and security to the attention of the SC (Art 99) |
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Norwegian Loans case
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-dispute between France and Norway
-France used reciprocity ICJ jurisdiction: said they would to before the court to the extent that Norway did -backfired |
