Finals Flashcards
(199 cards)
1
Q
Natural law?
A
Old view. Quasi-philisophical. Understood as universal and derived from reason.
2
Q
Positivism?
A
Relies on positive sources of law. Man made rules in a legal system based on societal agreement.
3
Q
The antelope case?
A
One must obey the mandate of law. Court acknowledged slavery wrong from natural law perspective but recognized that it was allowed under positive sources of law.
4
Q
Liberty rights?
A
Rights that incur no obligations. You can do x but another can try to stop you.
5
Q
Claim rights?
A
Rights creating obligations. You can do x and another has the duty to help you.
6
Q
Ss lotus case?
A
Illustrates basic principle under international law. The residual principle of state freedom, states can do anything unless there is a positive rule forbidding it.
7
Q
Just cogens norms?
A
Non-derogable norms of international law. States can never violate these and they do not depend on consent.
8
Q
Michael Dominguez case?
A
Evaluate presence of a jus cogens norm by looking at number of states admitting it’s subject is wrong. Presence of norm is distinct from content of that norm. illustrates the possibility of regional custom as binding. lays out elements of custom. 1. concordant practice by many states in situation falling in domain of international relations 2. continuation or repetition of the practice over a considerable period of time 3. conception that the practice is required by or consistent with prevailing international law 4. general acquiescence in the practice by other states.
9
Q
Armed activities in the territory of the Congo?
A
Court says that whether or not genocide is just cogens it’s jurisdiction is not. Illustrates that content of norm is different than existence of norm. Reinforces principle of consent for icj jurisdiction.
10
Q
Obligations erga omnes
A
Obligations owed to all. Any party has standing to bring a case related to the violation of such whether or not the violation is against them. Most commonly in the form of erga omnes partes.
11
Q
Article 38 sources?
A
38a: treaties
38b: custom
38c: general principles of law recognized by civilized nations
38d: judicial decisions and teachings of the most highly qualified publicists.
12
Q
Treaties: generally?
A
Can codify existing obligations. Can create new obligations. Can become custom. Leaving typically governed by treaty itself. Unc 102 requires entry with registrar to invoke before un body.
13
Q
VCLT 2(1)?
A
Defines a treaty: international agreement, between states, in written form, governed by international law
14
Q
VCLT: 31?
A
For general interpretation of treaties use good faith, context, object and purpose, ordinary meaning. Context includes: subsequent agreement between parties, subsequent practice in applying the treaty, any relevant rules of international law applicable to relationship among parties.
15
Q
VCLT: 32
A
Supplementary means of treaty interpretation: preparatory work of the treaty, circumstances of it’s conclusion. Can use if art 31 interpretation leaves meaning ambiguous or leads to manifestly absurd or unreasonable result.
16
Q
How to resolve conflicts among treaties?
A
UNC 33 requires resolution by negotiation when applicable norms conflict. principle of harmonization, later in time rule, lex specialis over lex generalis, UN charter supremacy, just cogens, intertemporal doctrine, non retroactivity principle.
17
Q
Principle of harmonization?
A
When many rules apply do everything possible to make them harmonious/compatible.
18
Q
Later in time rule?
A
Between two treaties the later in time prevails unless the older doc says otherwise.
19
Q
Lex specialis v lex generalis?
A
Lex specialis prevails.
20
Q
Art. 103 UNC
A
UN charter supremacy. When treaties and charter conflict the charter wins.
21
Q
Intertemporal doctrine?
A
Treaty can implicitly say whether the rules at the time it was passed apply or the current rules. If nothing is said then the judge decides.
22
Q
VCLT 4
A
Non retroactivity principle. If a treaty entered into force prior to 1/27/1980 then the VCLT doesn’t apply to it. If after that date it does (provided state is party to VCLT). If a state joined VCLT later then that is the date used.
23
Q
VCLT 18:
A
No way to terminate the VCLT
24
Q
Treaty application?
A
Use:
Pacta sunt servanta and good faith VCLT 26
No relevance for international law in this context, VCLT 27
Presumption of territoriality, VCLT 29
Dueling treaties, VCLT 30
25
Treaty suspension?
When reason for treaty relationship no longer exists but there may be a time where it does again so obligations are out on hold
26
VCLT 65-67
Procedural rules for termination:
Can't unilaterally assert invalidity, have to follow procedures and apply good faith
If treaty has procedures then those govern
If treaty doesn't say then notify other party and give chance to respond, pursue dispute resolution if party objects, compulsory settlement if negotiation doesn't work.
27
VCLT 61
Impossibility: where permanent destruction or disappearance of an object indispensable to the treaty isn't caused by the party claiming impossibility then dissolution is possible.
28
VCLT 62
Change of circumstances change of circumstances:
Occured since treaties conclusion, change not foreseen by parties, on a matter essential to consent of parties to be bound and where effect radically transforms the extent of the obligations still to be performed
29
Reservations
Unilateral statements purporting to exclude legal effect of a treaty part. Classic rule is that no reservation is valid unless all contracting states agree. A more flexible rule is that they are allowed as long as not inconsistent with the object and purpose.
30
VCLT 20?
Acceptance of and objection to reservations:
a. If a treaty allows reservations then they are allowed
b. not allowed where limited number of states and object and purpose indicate treaty must be applied as a whole.
c. if treaty instrument of int'l org. then org must accept
d. otherwise, acceptance by contracting state, objection doesn't prevent entry.
31
General Comment 24 of UNHRC?
states can make reservations to the genocide convention but not if that violates the object and purpose.
32
Unilateral declarations? general
ILC 2006 Guiding principles
* Did the state intend the declaration to have legal effect (“manifesting a will to be bound”) which may be deduced by examining the content of the declaration
* Was the statement made publicly by a senior state official with authority relevant to the subject matter of the declaration
33
Unilateral declarations? other considerations
o Declaration can be done orally or in written form
o Declaration can be addressed to one or a few States, or the international community as a whole
o Declarations cannot transgress jus cogens
o Declarations cannot be revoked arbitrarily
34
Legal status of eastern greenland (denmark v. norway)?
involves unilateral declarations. Important feature of declaration here is that the leader of Norway had declared that the territory would be left to Denmark.
35
Nuclear Test Case (Australia v. France)
Unilateral declaration valid because it was made publicly by a ranking official and with intent to be bound.
36
frontier dispute (Burkina Faso v. Mali)?
claim is that head of state said something so its binding on the nation. Court disagrees, makes distinction between statements made before press for political reasons and those made to have legal effect.
37
Bond v. U.S. (chemical weapon case)
looks to core purpose of treaty--preventing the use of chemical weapons in war. Ordinary meaning clearly goes against finding treaty applicable in this case. context shows that treaty intended to prevent previously seen horrors of chemical weapons.
38
Custom: elements?
objective element: state practice
Subjective element: Opinio Juris (action out of a sense that the action is required by law)
39
State practice?
may take a wide range of forms including physical and verbal acts. it may include inaction. Includes but is not limited to:
diplomatic acts and correspondence, conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference, conduct in connection with treaties, executive conduct, legislative and administrative acts, decisions of national courts.
40
Elements of state practice:
duration: the longer the rule has been in effect, the better
generallity: how many states have adopted this rule? most affected states are particularly relevant.
consistency/uniformity: no need for universal implementation, but the principle must be more than merely professed or aspirational.
41
Opinio Juris
distinguishes mere custom from customary international law. evidence of it can be found in areas such as public statements by ambassadors, state department officials, foreign ministry officials, government lawyers, and the like. statements will demonstrate that the government considers the action required by international law, rather than being discretionary.
42
forms of opinio juris
public statements by government/ legislative officials.
treaty commentary and Travaux Preparatoires (official records of negotiations leading up to a treaty)
conduct in connection with resolutions adopted by international orgs.
43
North Sea Continental Shelf (Germany v. Denmark and Netherlands)
dispute about sea boundary. Proportionality principle not custom because of insufficient evidence of state practice. Practice must be constant and uniform, must be widespread, objecting states make presence less clear, party practice matters less than non party, timing matters. Case also illustrates specially affected states.
44
Persistent objectors:
allows states to say they won't be bound by a norm of CIL. Objection must be made at time custom was formed, nonexistence of state is not an excuse. Objection must be continuous. state must adopt a contrary practice.
45
principles of custom from north sea contintental shelf
to be custom acts concerned must amount to a settled practice and the acts must be carried out in a way as to be evidence of a belief that such practice is rendered obligatory by the existence of a rule of law requiring it.
46
Flores v. Peru Copper Corp.
unique to America. CIL only addresses things of mutual concern not of several concern. Mutual concerns involve state actions performed towards or with regard to the other. Several concerns are those to which states are separable and independently interested.
47
General principles of law
principles of domestic law recognized by civilized nations. general principles that are part of the architecture of the international legal system as distinct body of law. principles considered universal because they are found in every human society. principles of justice that flow from the nature of human beings as rational animals.
48
examples of general principles
equity
unclean hands
unjust enrichment, abuse of rights, estoppel
proportionality.
49
prosecutor v. erdomovic
argumes that duress as complete defense to murder is part of general principles. court examines civil, common law, and other legal systems and finds that duress is a general principle but not that duress as a complete defense for murder is.
50
judicial decisions and the writings of the most highly qualified publicists
these are subsidiary means of interpretation. Other means are binding these are not. includes decisions of international tribunals and of domestic tribunals when handling issues of international law. highly qualified publicists include any past or present ILC member, or past or present ICJ judge.
51
soft law
statements made by international law bodies are not law but can have certain types of legal effect. sometimes relying on another body that did the work on x can save a state a ton of work if they just adopt the conclusion that body reached.
52
Entities with special status
these meet some criterion for being a state and may be treated in a state like way by the international community: Vatican City, Taiwan, Palestine
53
When does the question of statehood arise
break up of existing state into several new ones. secession by part of existing state. merge and absorption of states. emergence from colonial status.
54
Montevideo convention requirements for statehood
permanent population, effective government,defined territory, capability of exercising international relations
55
Rights of states
teritorial integrity (prohibition on use of force UNC 2(4). sovereign equality: reciprocity (sovereign and diplomatic immunity UNC 2(1). general powers and extended privileges (legal personhood, join international orgs, standing, immunities, defenses, protection of diplomatic inviolability and state secrecy).
56
obligations of states
to comply with customary international law unless a persistent objector, due diligence (trans boundary harm, korfu channel), prohibition on use of force, prohibition on coercive intervention, obligations to respect and ensure human rights.
57
Theories of recognition
constitutive theory of recognition: other states constitute the new state through their recognition. Declarative theory of recognition: a state exists when it declares that it exists and acts consistently with that declaration. Most of international law is declarative and relies on objective tests.
58
types of recognition
opening of diplomatic relations, allowing into the UN, making a formal statement of recognition. cannot be revoked.
59
where is recognition prohibited?
A ch 7 resolution can prohibit UN members from recognizing a state if that state is formed through unlawful use of force or on the basis of racial discrimination.
60
Self determination of peoples
a general principle of International law. its a right exercised by people within the framework of an existing state and with respect to those states territorial integrity. Recognized in UNC art 1. peoples have the right to freely determine their political status freely pursue policies of economic social and cultural nature.
61
UNGA resolution 2625
this is custom. describes the contexts in which we recognize external self-determination rights. 1. decolonization 2. foreign occupation 3. political participation, remedial secession, and consent of the parent (recognized where a people is oppressed, denied internal self-determination and facing fundamental human rights violations.) 4. election interference.
62
right to unilateral secession
no specific right in international law. under the lotus presumption the norm is territorial integrity. limited circumstances where right is recognized are for 1. colonial people 2. occupation by a foreign power 3. possibility where right is blocked internally.
63
in re secession of quebec
deals with right to unilateral secession. Court outlines 3 situations where it may be appropriate. 1. colonial people 2. occupation by a foreign power 3. potentially where the right to self-determine is blocked internally.
64
what counts as a people?
hard to pin down, can rely on extra-legal tools, whether the group in question self-identifies as a people, shared commonalities, as a threshold matter, whether the group has a common language and culture.
65
when is a successor state the same state for the purposes of prior obligations?
often made a prerequisite of recognition
66
3 doctrines for recognition of foreign governments
1. tinocco test: does the government have effective control over the state. if it does then recognize it (most common test.)
2. tobar doctrine: recognize if the government is democratically legitimate
3. estrada doctrine: forego recognition, recognize states only and not governments.
67
Treaty invalidity:
was the treaty impermissible from the start? jus cogens, coercion/duress?
68
separability of treaty terms
VCLT 44(3): if the ground for invalidity relates solely to particular clauses, it may be invoked only with respect to those clauses where 1. the clauses are seprable with regard to their application 2. appears from treaty that acceptance of those clauses not essential to intent of parties to be bound. 3. continued performance of the remainder of the treaty would not be unjust.
69
Procedure for voiding/terminating/suspending
state must notify other state of claim including reasons. if state notified doesn't react within three months then the state may declare treaty invalid/terminated/suspended. if state objects then must pursue dispute resolution. If not resolved after 12 months then compulsory dispute settlement.
70
Invalidity of treaties: VCLT provisions
46: provisions of internal law regarding competence to conclude treaties.
47: specific restrictions on authority to express the consent of a state
48: error
49: fraud
50: corruption of a representative of a state
51: coercion of a representative of a state
52: coercion of a state by the threat or use of force
53: treaties conflicting with a peremptory norm of general international law.
71
VCLT articles on termination and suspension of treaties
54: by treaty terms or consent.
56: denunciation of or withdrawal from a treaty not addressing that.
57: suspension of a treaty under its terms or by consent
58: suspension of the operation of a multilateral treaty by agreement between certain of the parties only
59: termination by later treaty
60: termination/suspension as a consequence of breach
61: impossibility of performance
62: fundamental change of circumstances
72
self-executing v. non self-executing treaty
SE is one that automatically becomes enforceable in the domestic legal system
NSE is one that contemplates further domestic legislation such as implementing legislation in order to become binding and enforceable law in the domestic legal system.
tell difference by looking to intent of parties at signing. difference doesn't change validity under international law. distinction most significant in dualist legal systems.
73
additional (not montevideo) requirements to be a state
comitment to human rights and rule of law, constitution of the entity on a democratic basis, commitment to protections for ethnic and national minorities located in it territory, acceptance of existing international boundaries, acceptance of major disarmament and non proliferation norms, entity's commitment to pacific settlement of disputes.
74
Analyzing acquisition of territory
determine critical date. examine modes of teritorial aquisition
75
Critical date:
whoever has title at the critical date retains title, the critical date is when parties realize they are in a dispute
76
modes of territorial acquisition
discovery, effective occupation, conquest/subjugation/anexation, prescription, succession, accretion
77
Island of palmas case
Netherlands kept the land because it had prescriptive title which displaced spains title by discovery
78
Uti Possidetis Juris
SO that you might rightfully possess: when a colonizer leaves, boundaries between states that the colonizer drew are not redrawn. This is about preserving stability.
79
Effect of a state acquiring territory: UNGA resolution 2625 (which is custom)
refrain from use of force, settle disputes by peaceful means, don't intervene in other states domestic affairs, cooperate in accordance with the UN charter, equal rights of self determination, Sovereign equality of states, good faith.
80
kossovo case
question was whether Ks issuance of a unilateral declaration of secession permissible under international law. most observers interpreted the question as asking whether kosovos declaration was legally effective. ICJ simply says no rule prevents K from making its declaration
81
Nicaragua v. US
Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State.
82
violation of prohibition on intervention in the domestic affairs of another state
did the operation influence anu of those matters in which states are allowed to decide freely? did the operation amount to a coercive act against the victim state (impairing on the freedom to choose political economic social and cultural system or on the freedom to formulate foreign policy)?
83
VCLT definition of international organization
an institution drawing membership from at least three states having activity in several states usually held up by a formal agreement which sets out its authority.
84
Structure of the UN security counsel
15 members 5 permanent (UK US France China Russia), Art 27 says each gets one vote. Under the charter they can take actions in accordance with the object and purpose of the charter by passing ch 6 and 7 resolutions.
85
UNC Art. 33
obligates states to peacefully resolve disputes. failures here open the door for ch 6 resolutions which can grow into ch 7 resolutions over time
86
UNC art 34-38
these lay out the UNSCs general powers under ch6, these include things like investigating disputes recommending procedures and terms of settlements, and similar.
87
UNC ch VII
Art 39: requires answering threshold question of whether there has been a breach of the peace
Art 41: lays out non forceful measures that can be taken before escalating into force. these include things like collective sanctions
Art 42: if art 41 measures are inadequate or would be ineffective then the UNSC can authorize the use of force.
88
South Africa and Namibia case
court rejects the idea that art 25 only makes ch 7 resolutions binding on states. Uses VCLT rules for interpreting treties to interpret resolution to see if it is ch6 or ch7. the court says that art 25 applies to both types of UNSCR.
89
UNSCR v. treaty obligations
per article 103 of UNC UNSCRs prevail over inconsistent legal obligations. they are hierarchically superior as a matter of international law
90
Libya case
article 103 makes adherence to UNSCRs an obligation superior to treaties
91
Kadi case
EU court has to interpret a domestic regulation making a UNSCR effective. Court doesn't review the sanctions but instead reviews the implementing law and says that is invalid. This is a type of quasi-judicial review although true judicial review doesn't exist in IL.
92
UNGA authority under the charter
1. Art 10. can make recommendations on and discuss basically anything. it can only make recommendations, however, and not anything binding.
2. art 11. can do all the stuff that the UNSC can do subject to art. 12
3. While the UNSC is seized of a matter the UNA cant act. the UNSC likes to be seized because of this.
93
Art 32 UNC
establishes the ICJ. the ICJs powers are outlined in its own statute. the statute sets out the courts structure, jurisdiction, and other procedural matters.
94
Matters the ICJ can handle
1. contentious cases
2. advisory opinions
95
ICJ contentious cases
these are disputes between two states where the result is binding on the parties. before bringing a case in this way states have an obligation to exhaust all local remedies which can include exhausting remedies available under other inferior treaties.
96
Ways ICJ can acquire jurisdiction
1. ICJS 36(1) by special agreement (compromis) and joint referral (consent ad hoc)
2. ICJS 37: jurisdiction under dispute settlement clauses (compromissory clauses) in a treaty (consent ante hoc)
3. ICJS 38(5) jurisdiction based on forum propogatum (consent post hoc)
97
Admissibility:
issues going to the appropriateness of a case for the ICJ. IS an issue justiciable? is there a monetary gold issue: is there an included third party who is indispensable to the resolution of the issues?
98
Who can bring cases before the ICJ
States and only states
99
advisory opinions
these are given at the request of UN organizations and , while not binding, are given great weight by the requesting organization.
100
Four most common admissability challenges
monetary gold: when a party claims that indispensable parties are missing.
political issues doctrine: court is a legal body and can only hear legal and not political issues
justiciability: can the court discern questions of fact or questions of law based on the circumstances at hand
exhaustion of local remedies: must exhaust local, not international, remedies prior to coming to ICJ in diplomatic protection cases.
101
Nicaragua v. U.S.
Q is whether ICJ can hear case based on 36(2) consent to compulsory jurisdiction when a case was filed a few days after consent was revoked. Answer was yes because US included a sunset period for its revocation.
102
Diplomatic protection
this is the invocation by a state through diplomatic action or other means of peaceful settlement of the responsibility of another state for an injury caused by an internationally wrongful act of that state to a natural or legal person that is a national of the former state with a view to the implementation of such responsibility.
103
ILC recomendations: states entitled to give diplomatic protection should
1. give it due consideration
2. consider, where feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought
3. transfer to the injured person any compensation obtained for the injury from the responsible state subject to any reasonable deductions.
104
what is a national?
states generally get to decide for themselves. states don't necessarily have to respect other states definitions. Doctrine of genuine links: nationality has to be authentic to work for diplomatic protection.
105
ILC Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA): generally
1. these are almost entirely custom (1-28 definitely are)
2. these are secondary rules, they only come into play if a primary rule has been violated. they are rules of attribution or accountability.
3. the rules here operate in the background of all subjects of international law, they can be contracted out of or persistently objected to.
106
ARSIWA article 4 attribution
De Jure Organs: if it is a state organ it acts for the state whatever role it serves as long as conduct is carried out in an official capacity. this includes all unitary bodies such as any internal political subdivisions. to determine if something is an organ look to internal law and if it grants legislative judicial or executive power or other power as stated by internal law then it is an organ.
107
ARSIWA article 5 attribution
De Facto Organs: these are like state-owned corporations, they are things that are granted powers which are elements of governmental authority.
108
ARSIWA article 6 attribution
organs placed at disposal of others: these are like coalition forces and are seen a lot with sending humanitarian aid where x sends aid but y controls its distribution.
109
ARSIWA article 8 attribution
direction and control or instruction: if a instructed directed or controlled x action then it is responsible.
110
Effective control: ARSIWA article 8 attribution
is the control sufficient to attribute illegal actions of a foreign state actor to the supporting state. Financial and military support is insufficient. this must be direct and operational control.
111
overall control: ARSIWA article 8 attribution
was there equipping, financing, and general planning of the actor's military activity
112
ARSIWA article 11 attribution
Ex post facto acknowledgment and adoption: (example is the Iran embassy hostage crisis)
113
ARSIWA article 16 and 17 complicity
This is derivative responsibility for another states violation of international law. direction and control here is different than under article 6 where full control is surrendered and thus liability doesn't attach. here aiding or assisting knowing circumstances and would be liable if the state did it. (ex is the polish black site case)
114
Corfu channel case:
every internationally wrongful act by a state implicates the state's international responsibility. also establishes the due diligence principle that you have a duty to prevent bad actors from harming other states from your teritory
115
Nicaragua v. U.S.
the US may have been funding and providing operational support to the contras but it was not ordering any specific operations so it wasn't sufficiently in control. the U.S. may be liable for the support and financial help, however.
116
Tadic case
this is an overall control case. looser control is necessary for groups rather than individuals. this case involves distinguishment between NIAC and IAC. here, deciding if NSA actions are attributable maters a lot because then the conflict is an IAC and more heavily regulated.
117
The genocide decision
reaffirms effective control test over the overall control test. core of reasoning is that the degree and nature of a state involvement in another's territory can have a different test than liability for a specific act in a conflict.
118
Iran Case
iran sufficiently adopts the actions of the students when it released a formal decree affirming those actions and took over the hostage situation.
119
Husayn case
poland was complicit for u.S. actions of torture in its territory because it could not have failed to know what the U.S. was doing, and it allowed it to act.
120
Due diligence obligations
ARSIWA says nothing about these and they are controversial to impose on states. they are also primary rules whereas ARSIWA deals only in secondary rules. These are mostly derivable from treaty frameworks.
-2 basic principles are accepted
1. corfu channel: cant let territory knowingly be used to harm other states
2. no harm principle: cant let significant transboundary harms happen from action in your territory.
121
Circumstances precluding wrongfulness: ARSIWA
Consent: art 20
self-defense: art 21
countermeasures: art 22
force majeure: art 23
distress: art 24
necessity: art 25
122
Necessity
ARSIWA 25: act must 1. be the only means of avoiding imminent peril to an essential interest of the state, 2. not impair an essential interest on which an obligation exists. Cant be invoked where 1. jus cogens 2. treaty addresses necessity 3. state caused the necessity.
requirements must be satisfied cumulatively
123
Gabcikovo Nagymoros Project
Hungary relies on ecological necessity to justify its abrogation of treaty responsibilities. Slovakia contests. Parties agree that ARSIWA 25 applies. requires showing peril which is not the same as a high level of risk. The peril must be grave and imminent.
124
Self-defense (under ARSIWA)
ARSIWA 21: This is a justification, not a defense because use of force violates jus cogens and UNC 2(4). applies where the threat is imminent. response must be necessary and proportional.
125
Countermeasures
ARSIWA 22: these are a bridge between ARSIWA and enforcement actions. They encapsulate the right of the wronged state to use a violation of international law as retaliation for a previous violation.
126
Requirements for valid countermeasure
must:
1. be reversible
2. be proportionate to the violation (though need not violate the same source of IL obligation)
3. inform the violator
4. demand that the violation be stoped
5. stop when the violator stops
cannot violate jus cogens.
127
retorsions
unfriendly act in response to an unfriendly act. These are legal actions such as recalling an ambassador.
128
Force Majeure
ARSIWA 23: the occurrence of an irresistible force or unforeseen event making it materially impossible in the circumstances to comply with the obligation. cant be argued if risk was assumed or the environment for the FM was created by the state.
129
distress
ARSIWA 24: where there is no other reasonable way to save actor's life or the lives of others in their care. cant create the situation and may not create a greater harm.
130
Jus cogens: ARSIWA
Article 26: there is no circumstance precluding wrongfulness for jus cogens violations.
131
Forms of reparation for an IWA
ARSIWA 34: forms of reparation. these can be restitution, compensation or satisfaction either singly or in cobination.
132
Restitution
ARSIWA art 35: the re-establishment of the situation which existed before the wrongful act was committed to the extent that such is not materially impossible, and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
133
compensation
ARSIWA 36: responsible state is under an obligation to compensate for the damage caused by an iwa insofar as it is not made good by restitution. compensation shall cover any financially assessable damage including loss of profits insofar as it is established.
134
satisfaction
ARSIWA 37: responsible state must give satisfaction insofar as restitution and compensation arent enough. satisfaction can be acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality. it shall not be out of proportion to the injury and may not take form humiliating to the responsible state.
135
Interest for IWA
ARSIWA 38: payable when necessary to ensure full reparation. runs from date when the principal sum should have been paid to the date the obligation to pay is fulfilled.
136
problems with enforcement for IWAs
there is no international police force, the ICC and ICJ have no independent enforcement mechanisms. The UNSC has the power to enforce judgments through resolution but this is incredibly rare.
137
prosecutor v. Al Bashir
the South Africa arrest case. the court refuses to make a recommendation to the security counsel because they had already done so several times and the UNSC failed to act. illustrates problems with enforcing ICJ judgments.
138
collective sanctions
Done under CH7 art 41 of the UN charter. require a finding under art 39 that there is a threat to international peace and security. states that fail to comply with these can be sanctioned. if passed, they are mandatory.
139
categories for evaluating collective sanctions: from "adverse consequences of economic sanctions on the enjoyment of Human rights"
1. are they imposed for valid reasons
2. do they target proper parties
3. do the sanctions target proper goods or objects
4. are they reasonably time limited
5. are they effective as assessed when launched
6. are they free from protest arising from violations of the principles of humanity and the dictates of public conscience (this is called a martens clause)
140
Rosneft sanctions case
sanctions imposed against russina co.s R filed complaint with ECJ claiming sanctions disproportionate with respect to the objective pursued bu those acts and interfere with rosnefts freedom to conduct business. ECJ says these rights are not absolute and interference with rosnefts freedom to conduct a business and its right to property cant be considered disproportionate.
141
Types of immunities
Diplomatic immunity, head of state immunity, sovereign immunity, act of state doctrine
142
VCDR (vienna convention on diplomatic relations): generally
no requiremnet to accept foreign diplomats but if you do, they must be treated in a particular way. immunity from criminal jurisdiction, immunity from civil jurisdiction except q. private immovable property, 2. diplomat is executor or administrator in private capacity, 3. private commercial activity. The immunity belongs to the state and may be waived.
143
VCDR 22(1)
premises of the mission are inviolable; host state agents can only enter if given permission
144
VCDR 29
diplomatic agents are inviolable; no arrest or detention.
145
VCDR 31:
diplomatic agent enjoys absolute immunity from criminal jurisdiction; true as well for civil jurisdiction except in matters relating to real property, inheritance and professional/commercial activities outside official functions.
146
VCDR 37(1)
Same immunities apply to their family members, if they arent a national of host state.
147
VCDR 37(2)
If not a national of the host state the mission administrative and technical staff get absolute immunity from criminal jurisdiction, but only immunity from civil jurisdiction for acts performed in the course of their official duties.
148
VCDR 37(3)
If not a national of the host state, members of the service staff get immunity only in respect of acts performed in the course of their duties.
149
Sabbithi v. Al Saleh
kuwaiti diplomat claims immunity from court's jurisdiction. plaintiffs allege conduct of diplomat constitutes human traficking and fell into commercial activity exception. Court concludes that hiring household employees is incidental to the daily life of a diplomat and therefore not commercial activity.
150
Arrest warrant case
Congo says that minister of foreign affairs entitled to absolute immunity. congo says the immunity applies to all acts, official and unofficial, before and during office. ICJ says that the purpose of the immunity is functional. cant prevent them from exercising their function. Doesnt matter that belgium asserts violation of war crimes and crimes against humanity. ICJ says there is no exception for international crimes.
151
Foreign sovereign immunities act (FSIA):
deals with when foreign states can be sued in American domestic courts
152
FSIA 1330
provides for SMJ in fed courts for non-jury cases against foreign states
153
FSIA 1604-05
generally, grants immunity to foreign states whil creating a series of exceptions. all exceptions are without prejudice to existing treaties.
154
FSIA 1606:
no punitive liability (except in terrorist cases)
155
FSIA 1607
does not apply to counter-claims. once you raise a counter-claim you lose your immunity.
156
FSIA 1609-11
general immunity to foreign state from attachment/execution, with an exception to property used for a commercial activity (but certain property is always immune: international orgs property, foreign central bank property, foreign military property)
157
FSIA 1605(a)(1)
waiver exception: where there is express waiver by written document we will not provide immunity. this can also appear in implied waiver. I.e. when contract says that law of US will govern it or when state fails to waive sovereign immunity defense when responding to pleading
158
Siderman de blake v. Argentina:
implied waiver through letter from argentinian judge requesting US court for help in a case (immunity waived by seeking to work with US courts.)
159
Consular immunity
Governed by VCCR. narrower immunity that only applies to arrest or detention pending trial except for grave crimes.
160
Head of state immunity
immunity for the purpose of enabling high level officials to fulfil their functions. idea is tat they need absolute umminut from conduct prior to and during office because any proceeding criminal or civil against them would reduce their ability to fulfill their role. Terminates once they leave office.
161
FSIA 1605(a)(2)
Commercial activity exception. question is whether a private actor can do the same conduct looking at the nature of the conduct from the outside and not its purpose from the inside.
162
Argentina v. weltover
a) if gov enters marketplace in same manner as private citizen or corp can then that is a commercial activity.
b)private parties regularly issue, hold, and trade bonds
c) the same kind of refinancing being done by Argentina is therefore a commercial activity.
d) by contract a government's issuance of regulations limiting foreign currency exchange is a sovereign activity.
163
FSIA 1605(a)(3)
expropriation exception (violation of international law, does not include taking of intangible property) idea is that if you nationalize property you should compensate and if you fail to do so you violate international law and can be sued in domestic courts.
164
FSIA 1605(a)(4)
exception for rights in property in the forum
165
FSIA 1605(a)(5)
exception for non-comercial torts (tort must occur in US): can we sue state for tortious actions of a state agent in the receiving territory? yes.
166
FSIA 1605(a)(6)
exception for enforcement of arbitral awards
167
FSIA 1605A/B
terrorism related exception.
168
Act of state doctrine
not a complete immunity: either party can raise the issue and it results in the parties losing the ability to contest the validity of a state action in court. It is a quasi-constitutional doctrine flowing from separation of powers. Domestic courts should not pass judgment on the official acts of foreign sovereigns.
169
Banco Nacional de Cuba v. Sabbatino
Cuba expropriates. No sovereign immunity because of expropriation exception but act of state doctrine prevents the validity of the expropriation being contested. (doctrine assumes validity of acts of states).
170
Bernstein exception to the act of state doctrine
from second circuit. Court can pass judgment on the acts of a foreign state if the state department stipulates that it wont interfere with diplomatic efforts.
171
ICCPR rights
1. equal treatment before the law
2. freedom from discrimination
3. right not to be deprived of life arbitrarily
4. freedom from torture, slavery, servitude
5. due process and fair trial rights
6. freedom of movement and the right to emigrate
7. freedom of thought, conscience, expression, and religion
8. participation and voting in the political process.
172
Role of national courts in human rights
in many jurisdictions litigants can assert human rights in domestic litigation. Less common in US. in some jurisdictions IHRL functions as quasi-constitutional.
173
S.A.S. v. France
Deals with ICCPR art. 9 freedom of religion. freedom only subject to limitations prescribed by law and necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Involves a proportionality analysis.
174
Analyzing Human rights (ex case is S.A.S. v. France)
1. ask whether the state action or regulation constituted an infringement of some right.
2. if yes, ask whether the government was pursuing a legitimate interest
3. if yes, ask whether there is a sufficient and reasonable connection between the legitimate interest sought and the measure advanced.
4. consider proportionality strictu senso: were there alternative less intrusive means of achieving the saim aim. If the intrusion was not truly necessary (because some less burdensome regulation would have achieved the state interest), the state action is illegal.
175
Economic and Social Rights (ICESCR)
Art. 1: self determination of peoples
Art. 2: commitment to international assistance, non discrimination.
Art. 6: right to work
Art. 11: right to adequate standard of living including food.
Art. 13: education
176
General Comment No. 12
Right to food recognized by ICESCR. Linked to inherent dignity of persons. Realized progressively. obligation to facilitate and obligation to provide. unwillingness is distinguished from inability. Where unable must show resource constraints cause impossibility and that every effort has been made to use all resources at disposal. must accept international assistance.
177
ICCPR derrogation
Art. 4: in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states parties may take measures derogating from their obligations to the extent strictly required by the exigencies of the situation provided that isn't inconsistent with other obligations under IL and doesn't involve discrimination.
178
General comment No. 29 (on derogation)
measures must be excetpional and temporary.
1. situation must amount to public emergency which threatens life of nation.
2. state party must officially proclaim state of emergency.
179
non-derogable rights under ICCPR
Art 6: right to life
Art 7 prohibition on torture
Art 8 slavery
Art 11 prohibition on debt-imprisonment
Art 15 legality
Art 16 personhood
Art 18 freedom of thought conscience and religion.
180
Limits of utilitarian balancing in human rights
Public comittee against torture v. Israel: even in ticking time bomb scenario torture violates human dignity and it is hard to justify under necessity because of its lack of efficacy. Necesity may prevent criminal prosecution after but cant justify before.
181
Extraterritorial applicability of human rights
Koh memorandum: states have an obligation to ensure rights of those within their territory and to respect rights of those outside their territory. There is a positive obligation inside (have to provide something) and a negative obligation outside (cant remove something).
182
Models of IHRL applicability
Social contract: owe only to those inside territory
Ratione Loci: owe to those in areas of quasi-teritorial control (embasy, registered ship, detainment facility, beligerent occupation)
Ratione Personae: owe to those you exercise authority or control over (nationals abroad, exercise of legal powers, physical custody/boots on the ground)
Ratione materiae: Positive and negative obligations. Cant remove right through choice of means.
183
Al-Skeini and others v. U.K.
Court uses ratione loci. There was beligernent occupation in Iraq, look to strength of states military presence, extent to which its military economic and political support for local subordinate administration provides it with influence and control over the region.
184
Human Rights in armed conflict
ECHR said that there cant be effective control over territory during armed hostilities. Same for individuals.
185
UNC Art. 51
nothing in the charter shall impair the right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the SC has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the security council and shall not in any way affect the authority and responsibility of the SC to take actions it deems necessary to maintain or restore international please and security.
186
cyber attacks as armed attacks
Tallin manual: a state that is the target of a cyber op that rises to the level of armed attack may exercise its right of self-defense. Whether CA counts depends on its scale and effects.
187
oil platform doctrine
a series of attacks each of which may not individually rise to the level of an armed attack may be viewed collectively in the aggregate as triggering a right of self-defense.
188
Armed attack, what probably counts?
An act of considerable magnitude and intensity which has as its consequences the infliction of substantial destruction upon important elements of the target state, namely upon its people, economic, and security infrastructure, destruction of aspects of governmental authority and physical territory (political independence, territorial integrity).
189
Requirements for collective self-defense
Formal request for assistance from state that has the right of self-defense. Some regional arrangements formalize collective self defense options. (NATO, WARSAW pact)
190
Imminence option for armed attacks
Mainstream position is that states have a right to respond in self defense against an imminent attack. Assesed by reference to all relevant circumstances, including: nature and immediacy of the threat; probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury loss or damage likely to result therefrom in the absence of mitigating action, the likelihood that there will be other opportunities to undertake effective action in self defense that may be expected to cause less serious collateral injury loss or damage.
191
battered nations:
states that have been victimized by prior attacks might be more likely to subjectively consider an attack imminent than a corresponding state that has not faced similar attacks. Most scholars adopt an objective (reasonable state) view of imminence.
192
Preemptive v. preventative self defense
preemptive force is used against imminent attacks: mostly agreed to be legal. Preventative (bush doctrine) used against attacks that arent yet imminent to keep them from ever becoming imminent.
193
unwilling and unable doctrine
controversial: holds that deensive force against an NSA located on the territory of a foreign state is only permissible if the foreign state is unwilling or unable to resolve the threat itself.
194
Necessity requirement for defensive force.
must be necessary under the circumstances. If a non-forceful alternative exists to alleviate the threat then the use of defensive force is not permissible (called requirement of last resort in just war theory)
195
The Caroline incident
For self-defense: government must show a necessity that is instant, overwhelming, leaving no choice of means, and no moment for deliberation.
196
Proportionality requirement for self defense
Jus ad Bellum proportionality is the idea that defensive force must be proportionate to the aim or threat sought to be alleviated. Measured against the military operation as a whole.
197
Falkland islands case
British action in invading Falklands was justified by self-defense. If Britain had invaded Argentina's homeland that would be a disproportionate response.
198
Humanitarian intervention (see independent international commission on Kosovo)
Two valid triggers of humanitarian intervention. 1. sustained violations of IHL/IHRL or 2. Failed state situations. The aim of an intervention must be the protection of the population. Intervention must be reasonably calculated to end the humanitarian catastrophe as rapidly as possible, and reduce collateral damage. Force must be last resort. Failure of SC shouldn't be bar. Try countermeasures first. Use of force should be multilateral. intervention must comply with IHL. UNSC and ICJ should refrain from condemning the intervention. Intervention must be motivated by humanitarian not economic reasons. duty to rebuild and fulfill humanitarian mission after the military operation is complete.
199
Kossovo dilema
Was NATO intervention in serbia lawful or unlawful? if it hadn't intervened the genocide would have continued.
