week 1 - states

Question 1

What is Law?

in a national legal system?

Answer 1

A body of rules controlled and organized by a central authority

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

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

Question 2

What is Public International Law?

is it horizontal or vertical + why

Answer 2

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

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

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

Question 3

What is NOT public international law?

Answer 3

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

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

European law = a body of law developed in the EU

Question 4

History - medieval Europe 15th century

(creation / development of international law)

Answer 4

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

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

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

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

3. 2 legal concepts emerged to resolve this issue;

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

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

Question 5

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

Answer 5

• a Spanish philosopher in 16th century + one of the intr law fathers
• Proponent (supporter) of Intr Law

1. Developed concept of Just War Theory
2. Believed intr law is rooted in natural law

Question 6

Explain Just War Theory (according to Francisco de Vittoria)

Answer 6

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

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

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

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

Question 7

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

Answer 7

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

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

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

=> largely impacted development of intr law + HR

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

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

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

Question 8

History - Hugo Grotius

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

Answer 8

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

Question 9

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

Answer 9

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

Question 10

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

Answer 10

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

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

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

Question 11

History - peace of Westphalia

(when was it signed, what was it)

Answer 11

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

Question 12

History - era of positivism regarding international law

(18th - 19th century)

Answer 12

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

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

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

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

Question 13

History - post WWII evolution of international law

Answer 13

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

Question 14

What is an international legal personality?

Answer 14

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

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

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

Question 15

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

Answer 15

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

Question 16

What are subjects of international law?

Answer 16

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

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

Question 17

EXAMPLES of subjects of international law

Answer 17

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

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

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

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

d) Multinational Corporations

e) Holy see

Question 18

principle of speciality

Answer 18

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

ex. WHO only has jurisdiction amongst health sectors

Question 19

domestic law vs international law

Answer 19

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

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

Question 20

What is a state?

=> define it + criteria

(include article)

Answer 20

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

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

Question 21

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

according to what article?

Answer 21

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

Question 22

2 main theories on recognition of other states

Answer 22

1. Declaratory Theory
2. Constitutive Theory

Question 23

Declaratory Theory

(what is it + limitation)

Answer 23

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

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

Question 24

Constitutive Theory
(what is it + limitation)

Answer 24

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

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

Question 25

Define International Organizations;

(3 criteria)

Answer 25

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

Question 26

How are international organizations dif from states?

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

Answer 26

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

Question 27

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

Answer 27

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

He was assassinated by Jewish extremist group

UN sought legal recourse - case was brought before the ICJ

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

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

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

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

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

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

= this case Impacted legal status of international organizations

Question 28

ICJ Case:

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

Answer 28

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

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

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

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

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

Impacted legal status of international organizations