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Flashcards in International Law Exam 2 Deck (31)
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1

Constitutive Theory

Represents the ability to acquire Statehood through Recognition. Membership is dependent on acceptance by international community.

2

Declaratory Theory

Represents the ability to acquire Statehood when these 4 standards are met Population, Territory, Government, and Capacity to enter international relations. Recognition only represents states opinion not fact.

3

Montevideo Convention

Supported 4 standards for statehood. Population, Government, Ability to enter international relations, Territory

4

5 Principles of State Jurisdiction

Territory- Happens on a states territory, Nationality- States can claim authority over their nationals, Protection- States can take steps to protect themselves against non-nationals if their actions hurt a state, Passive Personality- States can prosecute someone who hurts their nationals, Universal- A state may have jurisdiction over crimes that are against all people

5

Legal Personality of International Institutions

Public IOs are recognized to have international legal personality similar to that of states. Created mostly by treaty to handle international law that states cannot, centered around functions. Can maintain rights by bringing international claims.

6

How Have IGOs changed lawmaking

States are drived to regulate based on multilateralism and functionalism. IGOs created a permanent structure for diplomacy and helped eliminate the problems with AD hoc courts. States have less power and IOs can bring claims in certain international law and.

7

Sources of UN legal personality and immunity

UN Charter article 105- UN shall enjoy privileges and immunities necessary to carry out its function in each and every one of its member states. UN is Sovereign.. General Convention- Establishes Legal personality and immunity of UN. Representatives of UN have immunity when exercising their functions and during the journey to and from the place of UN meetings

8

Structure and Functioning of the UN

Created primarily to provide collective security. Charter Article 103- UN over individual obligations. Resolutions are nonbinding, Security council must sign off.

9

European union; its uniqueness in the system, basic history

Evolved from cooperative treaties among 6 european nation states to become a 28 member supranational actor with distinct legal personality.

10

EU Legal Supremacy

EU law supersedes domestic law, Flamino Costa v ENEL

11

Immunities (State, Sovereign, Diplomatic)

Sovereign states are shielded from having to respond to suits in the courts of another country. ICJ agreed states have fundamental right to sovereign immunity. Functionally necessary for states to have immunity to perform function without fear of prosecution. Personal immunity can cover both public and private acts from individuals office. Functional immunity covers all acts of state officials determined by the nature of the acts rather than the office held. Diplomats may not be searched or arrested they may be expelled. States can waive immunities

12

Supranational vs Intergovernmental Organizations

Supranational organizations rely on more power with the union then individual states. Intergovernmental organizations have more power in individual states than unions. And consensus decision making and

13

Roles of NGOs in international law

NGOs are voluntary associations of individuals working together for a common purpose. NGOs can influence law with advocacy campaigns and putting pressure on states and setting the agenda. They can also carry out norms, submit amicus curae briefs, and monitor state behavior.

14

Attribution of State responsibility

When can state behavior be legitimatley attributed to a state? Generally agreed that a state is responsible if the conduct of a person or group is under the directions, instruction, or control of a state under the pretense of breaking international law.

15

Consequences for violations of public international law

Restitution- Restore the situation to its former state (Return stolen Boat) Compensation- Renumeration to some level accepted by the parties, punitive damages not likely. Satisfaction- Acceptance of responsibility, without material compensation

16

Erga Omnes Obligations

International obligations that are required because they benefit the international community as a whole. Responsibility for everyone.

17

Differences between Arbitration and Adjudication

Arbitration- Created Ad hoc for one specific issue between states. Establishes a temporary panel. Adjudication-Permanent and has a full time court

18

Bases for ICJ Jurisdiction

The parties involved agree to refer a situation to the ICJ (Known as Compromis), Specific treaties designate ICJ as source of dispute resolution, States may formally accept the binding nature (Optional clause), states may simply go along with the case (benefits of defense)

19

ICJ advisory opinion on Kosovo's Independence

Kosovo broke off from Serbia and declared independence. Some countries recognized but many powerful countries did not. Specifically Serbia the original host country did not. ICJ ruled that there is no general right to secession. Affirmed constitutive theory and the importance of host country acceptance and overall acceptance by international community.

20

Flamino Costa v ENEL

Established the supremacy of European Union Law over the laws of its member states. Law in treaty form could not be overridden by domestic legal provisions.

21

Congo v Belgium

Arrest Warrant from Belgium to president of Congo, ICJ said that immunity is absolute for heads of state against any crime.
Reparation for Injuries advisory

22

Balfour, Guthrie and company v. United States

Can pursue claims in other member states. ICJ only hear claims from states

23

Germany vs Italy (Ferrini

Italian courts awarded victims of German atrocities compensation. Germany said Italy violated sovereign immunity. The court ruled that Germany and states have a fundamental right to sovereign immunity.

24

Mothers of Sebrenica Case

Worst genocide in Europe since ww2. Claimed that Dutch breached obligation to prevent genocide. Pressed UN for compensation. International court ruled that UN had immunity.

25

UN Cholera Proceedings

Cholera outbreak in Hati was spread by UN peacekeepers. UN claimed immunity against any claims and that these claims were not valid. UN stripped people from their right to a day in court.

26

Chorzow Factory Case

Subjects of international law can be held responsible for their behavior and breach of law. Breach of obligation requires compensation.

27

Tehran Hostages Case

States can be indirectly responsible for accepting or failing to prevent citizen action.

28

Nicaragua Case

(for attribution of state responsibility)- Acts are attributable to the state only when state is in effective control

29

Tadic Case

ICTY found that overall control (dependent on you) of the area gave the government responsibility over irregular troops.

30

Genocide Case

ICJ challenged ICTY “overall control” test as too weak for state responsibility.