public international law Flashcards
(105 cards)
1
Q
What historical event marked the emergence of the Statist System in international law?
A
The Peace of Westphalia (1648)
This event vested sovereignty beyond the Prince to a territorial unit: The State.
2
Q
What are the two categories of states identified in the 19th Century regarding international law?
A
Civilised and uncivilised states
‘Barbarous States’ might join the system while ‘Savage States’ were never to be part of PIL.
3
Q
What is the nature of the international legal system?
A
Anarchic
This means that there is no overarching authority to enforce laws.
4
Q
How does international law differ from domestic law?
A
International law requires a tabla rassa; all assumptions regarding law must be suspended
This highlights the fundamental differences in legal frameworks.
5
Q
What is the primary function of law in society?
A
To protect, to coerce, to improve order
This is often viewed through the lens of the social contract.
6
Q
What does Max Weber describe as the monopoly of legitimate violence?
A
Central State control
This includes police, military, judicial system, and penal system.
7
Q
What is the basis of the international legal system?
A
Sovereign states
States signify independence and have the right to exercise functions within their territories.
8
Q
What are the three central systems lacking in the international legal system?
A
- Central law creation system
- Central law application system
- Central enforcement system
9
Q
Who is the primary subject of international law?
A
The State
The State is sovereign and independent.
10
Q
What is meant by ‘International legal personality’?
A
The ability of subjects of international law to possess rights and duties on the international stage
Only states benefit fully from this.
11
Q
What are the objective elements required for a State under the Montevideo Convention?
A
- Permanent population
- Defined territory
12
Q
What are the subjective elements required for a State under the Montevideo Convention?
A
- Effective control
- Recognition
13
Q
What does the term ‘jus cogens’ refer to?
A
Peremptory norms of international law that are universally binding
These norms cannot be violated or derogated from.
14
Q
What is the significance of the 1959 Antarctica Treaty?
A
It suspends issues of sovereignty and jurisdiction indefinitely
It ensures freedom of scientific research and prohibits nuclear weapons.
15
Q
What is the primary purpose of Inter-Governmental Organizations (IGOs)?
A
To coordinate activities and standardize interactions among States
This includes facilitating cooperation on various issues.
16
Q
What is ‘functional personality’ in the context of IGOs?
A
The limited international legal personality of IGOs to carry out specific tasks assigned by States
This means they can act on behalf of States within set limits.
17
Q
What are the four areas considered as International Commons?
A
- The Area of the High Seas
- Antarctica
- Outer Space
- International Canals
- International Straits
18
Q
What principle governs the exploitation of ‘The Area’ beyond the continental shelf?
A
The Common Heritage of Mankind
This principle ensures resources are exploited for the benefit of all States.
19
Q
What is the significance of the 1967 Treaty on Principles Governing the Activities of States in Outer Space?
A
Outer space is not subject to national appropriation
This includes the Moon and other celestial bodies.
20
Q
What are the principles governing international canals?
A
- Open to all without discrimination
- Open at all times
- Innocent passage
- Limited environmental and safety protection for the Canal State
21
Q
What is the definition of ‘transit passage’ as per UNCLOS?
A
The exercise of the freedom of navigation and overflight solely for continuous and expeditious transit of the strait
This ensures that passage cannot be impeded.
22
Q
What is the legal status of Multi-National Corporations (MNCs) in international law?
A
MNCs must designate their seat of incorporation and operate in multiple States
They are powerful entities but remain subject to the laws of the States they operate in.
23
Q
What is the difference between declaratory and constitutivist theories of recognition?
A
- Declaratory: declaration of existence
- Constitutivist: precondition of existence
24
Q
What is the wealth of a handful of rich individuals headed by Bill Gates, according to Oxfam?
A
US$426bn (£350bn)
Equivalent to the wealth of 3.6 billion people.
25
What position do MNCs hold in relation to States?
Privileged position; they can play one State off another for concessions
## Footnote
However, States maintain the upper hand due to their sovereignty.
26
What can States do concerning MNCs?
Exclude MNCs and expropriate their property through nationalization
## Footnote
States are sovereign and can act as they wish.
27
What did the wave of nationalization during decolonization assert?
Permanent sovereignty over natural resources
## Footnote
Recognized by the 1917 Bolshevik and 1920 Mexican Revolutions.
28
What are Stabilization Clauses?
Provisions in concession agreements requiring arbitration based on international law
## Footnote
Protects MNCs from nationalization.
29
What have Stabilization Clauses evolved into in the 21st century?
Bilateral investment treaties (BITs)
## Footnote
These allow for the internationalization of claims for lost property or nationalization.
30
What subjects do States recognize individuals as having standing in international law?
International Human Rights and International Crimes.
31
What is diplomatic protection?
The right of a State to bring a claim on behalf of its nationals who have exhausted local remedies
## Footnote
This transforms a domestic dispute into one governed by international law.
32
What is a significant weakness of the international human rights regime?
Those that violate human rights are often the same entities that establish protection mechanisms.
33
What does UDHR Art. 14(1) state?
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
34
What was the role of Non-Aligned States during the Cold War in human rights?
They broke the log-jam by opening for signature the CERD in 1965.
35
What are UN treaties with monitoring bodies?
CERD, ICESCR, ICCPR, CAT, CEDAW, CRC, Convention on Migrant Workers, Convention on the Rights of Persons with Disabilities.
36
Do individuals have standing before the UN Charter-based system?
No, individuals do not have standing
## Footnote
This system was altered in 2006 with the establishment of the UN Human Rights Council.
37
What can States do within the Treaty-based system regarding individuals?
Make a declaration allowing individuals to petition Treaty-bodies for breaches of the treaty.
38
What are the regional systems of human rights protection?
* European system: 1950 European Convention for the Protection of Human Rights
* Inter-American System: 1969 American Convention on Human Rights
* African System: 1981 African Charter of Human and Peoples’ Rights.
39
What significant change occurred in the European system in 1998?
Protocol 11 of the ECHR allowed individuals to bring claims directly against a State.
40
What is the significance of the 1998 Rome Statute?
It established the International Criminal Court to try crimes against humanity, genocide, and war crimes.
41
What existential question arose in the later 20th century regarding newly independent states?
Why should they be bound by European Public Law to which they have not agreed?
42
What was the role of the UN International Law Commission?
To encourage the progressive development of international law and its codification.
43
What is the difference between a treaty and a convention?
There is no legal difference
## Footnote
Both are types of international agreements governed by international law.
44
What does Article 2(b) of the Vienna Convention on the Law of Treaties state?
'Ratification', 'acceptance', 'approval', and 'accession' establish a State's consent to be bound by a treaty.
45
What are the grounds for invalidating a treaty?
* Error
* Corruption
* Coercion of State
* Fraud
* Coercion of Representative
* Conflict with jus cogens.
46
What are the external factors that can lead to the termination of a treaty?
* Material Breach
* Impossibility of performance
* Fundamental change of circumstances
* Emergence of a jus cogens norm.
47
What is the general rule of interpretation of treaties according to Article 31?
A treaty shall be interpreted in good faith, according to ordinary meaning in context and in light of its object and purpose.
48
When are reservations to treaties not allowed?
* If the treaty prescribes otherwise
* If the treaty excludes certain provisions
* If incompatible with the object and purpose of the treaty.
49
What is a reservation to a treaty?
A unilateral statement by a State to exclude or modify the legal effect of certain provisions of the treaty.
50
What does a reservation in international law mean?
A unilateral statement made by a State to exclude or modify the legal effect of certain provisions of a treaty in their application to that State
## Footnote
Defined in Article 2: (d) of the treaty.
51
What are the two elements of international custom?
* State Practice
* Opinio Juris
52
What is 'instance custom'?
A practice recognized as customary international law based on specific instances rather than widespread acceptance.
53
How much practice is enough to constitute customary international law?
It must be both extensive and virtually uniform, including the States most affected by the area of law.
54
What is opinio juris?
The belief that a practice is carried out due to a legal obligation.
55
Do UN General Assembly Resolutions count as opinio juris?
Yes, they can contribute to the formation of customary international law.
56
Can regional custom exist? Provide three examples.
* Asylum case
* Passage over India case
* Regional trade agreements
57
What is a 'Persistent Objector' in international customary law?
A State that has consistently objected to the creation of a custom and thus is not bound by it.
58
What does Article 38 (1) (b) of the ICJ Statute refer to?
International custom as evidence of a general practice accepted as law.
59
What are the two perspectives on general principles of law?
* General principles of domestic law applicable internationally
* Unique principles of international law
60
What does 'lex specialis legi generali derogat' mean?
Specific law overrides general law.
61
What is a jus cogens norm?
A peremptory norm from which no derogation is permitted.
62
What is the significance of Article 103 of the UN Charter?
In case of conflict between UN obligations and other international agreements, UN obligations prevail.
63
What is the regime of State Responsibility?
The framework governing how States are held accountable for unlawful acts under international law.
64
What constitutes an internationally wrongful act of a State?
An action or omission that is attributable to the State and breaches an international obligation.
65
What are the seven circumstances that preclude wrongfulness?
* Consent
* Self-defence
* Counter-measures
* Force majeure
* Distress
* Necessity
* Compliance with a jus cogens norm
66
What are the three forms of reparations under international law?
* Restitution
* Compensation
* Satisfaction
67
What is the concept of peaceful settlements of international disputes as per Article 2(3) of the UN Charter?
States must settle disputes by peaceful means to maintain international peace and security.
68
What historical movement led to the establishment of a formal system for peaceful settlement of disputes?
The Pacifist Movement in the 1800s.
69
What is the role of the International Law Commission regarding State Responsibility?
They developed the 2001 Articles on State Responsibility that outline the framework for accountability.
70
What does the term 'reparations' signify in international law?
The duty to make amends for a breach of international obligation.
71
What is Article 2(3) of the UN Charter about?
It states that all members shall settle their international disputes by peaceful means to avoid endangering international peace and security.
## Footnote
There is no obligation to settle disputes, as seen in the ongoing state of war between Russia and Japan.
72
What does Article 33 of the UN Charter outline?
It provides various means by which disputes can be settled, including negotiation, mediation, arbitration, and judicial settlement among others.
## Footnote
These means are aimed at maintaining international peace and security.
73
What are the two main categories of means for dispute settlement?
* Diplomatic Means
* Legal Means
## Footnote
Diplomatic means include negotiation and mediation, while legal means encompass arbitration and judicial settlement.
74
Define 'Good Offices' in the context of dispute settlement.
Good offices facilitate communication between parties and create a conducive environment for settlement.
## Footnote
Typically provided by a neutral eminent person.
75
What is the difference between negotiation and mediation?
* Negotiation: Direct settlement without third-party intervention.
* Mediation: Involves a third party to facilitate dialogue and propose solutions.
76
What is 'conciliation' in dispute resolution?
A commission is established to impartially examine facts and propose terms of settlement, but the outcome is not binding.
## Footnote
This process is more formalized and structured.
77
What is the Peace Palace and what is its significance?
The Peace Palace is located in The Hague, Netherlands, and houses the International Court of Justice and the Permanent Court of Arbitration.
## Footnote
It serves as a center for international legal dispute resolution.
78
What are the legal means of dispute settlement?
* Arbitration
* Judicial Settlement
## Footnote
These methods occur in formal settings with established rules and procedures.
79
What is 'arbitration' in the context of dispute resolution?
The solution of international disputes through a formal agreement to submit to a third-party decision.
## Footnote
Arbitration allows states to choose the procedures and arbitrators.
80
What is a 'Compromis' in arbitration?
An agreement that defines how the arbitration will take place, including procedures and arbitrators.
## Footnote
This is required before arbitration can commence.
81
What role did the League of Nations play in the establishment of international courts?
It called for the establishment of a Permanent Court of International Justice to resolve international disputes.
## Footnote
This laid the groundwork for the later establishment of the ICJ.
82
What is the jurisdiction of the International Court of Justice (ICJ)?
It deals with disputes between states and provides advisory opinions requested by UN organs.
## Footnote
The ICJ can only address cases with the consent of the involved parties.
83
What are the three means by which parties can consent to the jurisdiction of the ICJ?
* By ad hoc agreement
* By treaty with a jurisdiction clause
* By joining the optional clause system.
84
What does Article 2(4) of the UN Charter prohibit?
It prohibits the threat or use of force against the territorial integrity or political independence of any state.
## Footnote
This is a foundational principle of international law.
85
List the three original exceptions to the prohibition on the use of force in the UN Charter.
* Against enemy states renewing aggression
* Sanctioned by the UN Security Council
* Self-defense.
86
What is 'collective security' in the context of international law?
The legal means to project force beyond borders through UN Security Council authorization.
## Footnote
It embodies the principle that an attack against one is an attack against all.
87
What is the purpose of Chapter VII of the UN Charter?
To allow the UN Security Council to react to threats against international peace and security.
## Footnote
This includes taking actions to maintain or restore peace.
88
What does Article 39 of the UN Charter state?
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.
## Footnote
It outlines the authority of the UNSC to take appropriate measures.
89
What is the significance of the term 'aggression' in international law?
It carries legal obligations and can lead to both state and individual criminal responsibilities.
## Footnote
This makes leaders susceptible to arrest for acts of aggression.
90
Define 'breach of the peace' in the context of UNSC actions.
A less precise determination than aggression, used when an inter-State conflict occurs without clear aggressor identification.
91
What was the traditional understanding of 'threat to the peace' during the Cold War?
It referred to explosive or persistent situations threatening peace.
## Footnote
This understanding has expanded post-Cold War to include non-military sources of instability.
92
Identify examples of humanitarian crises that the UNSC has addressed as threats to peace post-Cold War.
* Somalia
* Rwanda
* Eastern Zaire
* Haiti.
93
What does the absence of war and military conflicts among states not ensure?
International peace and security
## Footnote
Non-military sources of instability in economic, social, humanitarian, and ecological fields are threats to peace and security.
94
Which crises did the UNSC address as threats to peace since the end of the Cold War?
* Somalia - humanitarian crises
* Rwanda - humanitarian crises
* E. Zaire - humanitarian crises
* Haiti - restore democratically elected President
* Albania - financial crisis
* Libya - terrorism
* Sudan - terrorism
* Afghanistan - terrorism
* Post 9/11 - terrorism
## Footnote
The UNSC expanded its notion of threats to peace during this period.
95
What does Article 41 of Chapter VII allow?
Measures short of force such as sanctions
## Footnote
Includes embargoes, travel restrictions, and actions by the Terrorism Committee.
96
What does Article 42 of Chapter VII permit?
Use of force by air, sea, or land forces
## Footnote
Action may include demonstrations, blockades, and other operations.
97
What was the original vision for the UN regarding military control?
A military controlled by a 'Military Staff Committee'
## Footnote
This vision was never realized, leading to the outsourcing of enforcement by the UNSC.
98
What are the common characteristics relied upon by the UNSC when using force?
* Determination under Article 39
* Mentions action under Chapter VII
* Invokes 'all means necessary'
* Designates who will undertake the action
## Footnote
These characteristics guide the UNSC's use of force.
99
What is the inherent right of self-defence according to Article 51 of the UN Charter?
Right of individual or collective self-defence if an armed attack occurs
## Footnote
Must be reported to the Security Council and does not affect its authority.
100
What are the limits of self-defence?
* Must be proportionate and necessary
* A counter-measure to end an illegal act
## Footnote
Self-defence does not flow from the Charter but is established under customary law.
101
What constitutes an act of aggression according to the UN General Assembly definition?
* Invasion or attack by armed forces
* Bombardment or use of weapons
* Blockade of ports or coasts
* Attack by armed forces
* Use of armed forces within another State's territory
* Allowing territory to be used for aggression
* Sending armed groups to carry out acts of aggression
## Footnote
Defined in 1974 as prima facie evidence of aggression.
102
What do regional arrangements like NATO fall under according to Chapter VIII?
The UN system of limitation of the use of force
## Footnote
Enforcement actions by regional arrangements require UNSC authorization.
103
What is the role of the United Nations in controlling the use of force?
The UN reserves the right to control the use of force
## Footnote
The Charter is the constitution of the international system.
104
What have states sought to widen regarding the use of force?
* Rescue citizens abroad
* Humanitarian intervention
* Pre-emptive self-defence
* Stopping use of chemical weapons
## Footnote
These attempts have generally failed due to lack of opinio juris.
105
What significant change did the African Union make regarding the use of force?
Allowed use of force without UNSC sanction under certain pretexts
## Footnote
Under the 2000 Constitutive Act, this includes restoring peace and addressing grave circumstances.
