Transnat Final

Question 1

Four challenges to international law

Answer 1

effectiveness, authority, enforcement, realism

Question 2

S.S. Lotus (France v. Turkey) (PCIJ 1927)

Question 3

Lotus/Freedom Principle

Question 4

Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)

Question 5

Voluntarism

Answer 5

holds that international legal rules emanate exclusively from the free will of states as expressed by them in conventions or by usages generally accepted as law

Question 6

Positivism

Answer 6

holds that law is derived from verifiable information, such as a written instrument or the practice of states as an empirical science, not based on intuition, moral reasoning, or introspection

Question 7

Customary International Law

Answer 7

two elements = a general practice of states and accepted as law

Question 8

Paquete Habana (U.S. 1900)

Question 9

S.S. Lotus (PCIJ 1927)

Question 10

North Sea Continental Shelf cases (ICJ 1969)

Question 11

Nicaragua v. United States (ICJ 1986)

Question 12

Nuclear Weapons Advisory Opinion

Answer 12

court concludes that nuclear weapons are not reconcilable with IHL thus are generally not legal, but the right to self-defense exists and there is no law on whether a State may use nuclear weapons when the survival of the State is at stake

Question 13

Persistent Objector

Answer 13

where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection

Question 14

Jus Cogens

Answer 14

peremptory norms of general international law, are norms accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character

Question 15

Peremptory Norms in ILC Fragmentation Report

Answer 15

prohibition of aggression, genocide, torture, slavery, crimes against humanity, and racial discrimination

Question 16

Vienna Convention on the Law of Treaties

Answer 16

entered into force Jan 27, 1980, 116 parties

Question 17

Treaty

Answer 17

treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

Question 18

Maritime Delimitation and Territorial Questions (ICJ 1994)

Answer 18

Qatar and Bahrain, documents found evidencing successful negotiations, VCLT Art 46

Question 19

Persons Considered as Representing States

Answer 19

A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers or it appears from the practice of the States concerned or from other circumstances that the intention was to consider that person representing the State for such purposes and to dispense with full powers

Question 20

VCLT Art 46

Answer 20

A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law re competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance

Question 21

Persons Considering as Representing States

Answer 21

heads of state, heads of gov’t and ministers for foreign affairs for performing acts related to concluding treaties, heads of diplomatic missions for adopting the text of a treaty, representatives accredited by States for the purpose of adopting a treaty in a conference, organization or organ

Question 22

Methods of Expressing Consent to be Bound

Answer 22

Declaration by signature, ratification, acceptance, approval

Question 23

Obligation Not to Defeat the Object of a Treaty

Answer 23

A State is obliged to refrain from acts defeating the object and purpose of a treaty when it has signed or exchanged instruments constituting the treaty, acceptance or approval, or it has expressed its consent to be bound by it

Question 24

Intention Not to Become a Party

Answer 24

START II Treaty, Rome Statute creating the ICC, 1996 Comprehensive Test Ban Treaty

Question 25

Reservation

Answer 25

means a unilateral statement however phrased or named made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State

Question 26

International Covenant on Civil and Political Rights

Answer 26

ICCPR Art. 20(2), any advocacy of national, racial or religious hatred constitutes an incitement to discrimination, hostility or violence shall be prohibited by law

Question 27

Permissibility of Reservations example

Answer 27

Genocide Convention Advisory Opinion (ICJ 1951)

Question 28

Permissibility of Reservations

Answer 28

classic rule for bilateral treaties reservation equals counteroffer, modern rule more flexibility can only make a reservation that does not defeat the object and purpose of a treaty

Question 29

Formulation of Reservations

Answer 29

governed by VCLT Art.19, reservations can be formulated unless the reservation is prohibited by the treaty, the treaty provides that only specific reservations not including the reservation in question may be made, or if it is incompatible with the treaty's object and purpose

Question 30

Acceptance of and Objection to Reservations

Answer 30

VCLT Art. 20, If a reservation is expressly authorized it needs no subsequent acceptance unless treaty so provides, if the application of the treaty in its entirety between all parties is essential to consent by each State to be bound a reservation requires consent of all parties, if it is a constituent instrument of an int'l org a reservation requires acceptance of competent organ of that org

Question 31

Objection of and Acceptance to Reservations

Answer 31

in cases not falling under paragraphs 1-3 of VCLT Art. 20 and unless the treaty otherwise provides acceptance by another contracting State of a res constitutes the res State a party to the treaty in relation to that other State if or when treaty is in force for those States, an objection by another State to a res does not preclude entry into force of treaty as between objecting and reserving states unless objecting State expressed a contrary intention, an act expressing a State's consent to be bound and containing a res is effective as soon as at least one other state accepts the res

Question 32

Legal Effects of Reservations and Objections to Reservations

Answer 32

VCLT Art. 21, a res is established in regard to another party modifies for the reserving State in its relations w/ other party the provisions of the treaty to which the res relates and modifies those provisions to the same extent for that other party in is relations with the reserving State, if a State objecting to a res has not opposed entry into force b/ween itself and reserving state provisions that the res relates to do not apply b/ween these two States

Question 33

UN Human Rights Committee, General Comment 24 on Issues Relating to Reservations Made to the ICCPR

Answer 33

Large number of reservations made by ICCPR State Parties, Reservation cannot be incompatible with ICCPR's object and purpose and must be specific and transparent

Question 34

Object and Purpose of General Comment 24 on Issues Relating to Reservations Made to the ICCPR

Answer 34

provide legally binding standards for civil and political human rights, provide an efficacious supervisory machinery

Question 35

U.S. Response to U.N. HRC

Answer 35

no thanks, we're all set!

Question 36

ILC Commission on Reservations to Treaties

Answer 36

A state can reserve to a treaty provision even if it reflects a rule of CIL, a state can reserve to harmonize the treaty obligation with a provision of national law as long as it doesn't affect an essential element of the treaty

Question 37

Treaty Observance pacta sunt servanda

Answer 37

VCLT Art. 26, every treaty in force is binding upon the parties to it and must be performed by them in good faith

Question 38

Treaty Observance Relevance of Internal Law

Answer 38

VCLT Art. 27, A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty

Question 39

Application of Treaties

Answer 39

VCLT Art. 28 Non-retroactivity, VCLT Art. 29 Territorial Scope, VCLT Art. 30 Dueling Treaties

Question 40

Bosnia v. Serbia Genocide Case (ICJ 2007)

Question 41

Interpretation of Treaties

Answer 41

VCLT Art. 31 general rule of interpretation and VCLT Art. 32 supplementary means of interpretation

Question 42

End of a Treaty

Answer 42

Validity, whether a treaty was permissible; termination/denunciation/withdrawal, all result in the ending of a treaty relationship; suspension, suspending of a treaty relationship with the possibility of its resumption at some future point when the reason for suspension ceases

Question 43

Separability of Treaty Provisions

Answer 43

VCLT Art. 44, if the ground for ending a treaty relates solely to particular clauses it may only be invoked only if clauses are separable from the remainder of treaty, that acceptance of those clauses was not an essential basis of the consent of the other parties or party to be bound by treaty as a whole, and continued performance of remainder of treaty would be unjust

Question 44

Invalidity of a Treaty

Answer 44

Art. 46 Ultra Vires treaties, Arts. 51 52 Coercion (economic, military/forcible), Art. 53 conflict with jus cogens, termination or suspension

Question 45

Termination

Answer 45

VCLT Art. 54, The termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty or at any time by consent of all the parties after consultation with the other contracting states

Question 46

Examples of Termination

Answer 46

NAFTA Art. 2205, 2015 Paris Climate Agreement, North Korea and the Nuclear Non-Proliferation Treaty

Question 47

Silent Treaties

Answer 47

VCLT Art. 56, a treaty which contains to provision re its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right of denunciation or withdrawal may be implied by the nature of the treaty

Question 48

Breach of bilateral treaty

Answer 48

VCLT Art. 60, a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part

Question 49

Breach of a multilateral treaty

Answer 49

VCLT Art. 60, entitles the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either in the relations between themselves and the defaulting state or as between all parties

Question 50

The Former Yugoslav Republic of Macedonia v. Greece (ICJ 2011)

Answer 50

Macedonia is admitted to the UN despite opposition from Greece based on its name; 1995 Interim Accord; Macedonia sues at ICJ for breach of Interim Accords, Greece claims Macedonia did it first and they were just responding permissively to a material breach; ICJ determines that there was no material breach by Macedonia and thus Greece breached its obligations

Question 51

Impossibility

Answer 51

VCLT Art. 61, a party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance of destruction of an object indispensable for the execution of the treaty; if the impossibility is temporary it may only as a ground for suspending operation of the treaty

Question 52

Changed Circumstances

Answer 52

VCLT Art. 62, a fundamental change of circumstances which has occurred with re to those existing at the time of the conclusion of a treaty, and was not foreseen, may not be invoked as a ground for terminating or withholding unless the existence of those circumstances constituted an essential basis of consent of parties to be bound and effect of change is radically to transform extent of obligations still to be performed

Question 53

Gabcikovo-Nagymaros Project (Hungary/Slovakia) (ICJ 1997)

Answer 53

After the Cold War ends, Hungary wants to back out of an agreement to built waterworks along the Danube; Court rejects impossibility argument because treaty allowed for negotiating adjustments and Hungary's own actions led to stalemate; Hungary argues political changes, economic changes, better understanding of adverse environmental effects, court rejects this changed circumstances argument because political situation was not closely linked to object and purpose, economic changes are not radical, and new developments were foreseen

Question 54

emanate

Answer 54

from common usages across national legal systems, from the specific structure of the international legal system, from the nature of law as such

Question 55

Prosecutor v. Erdemovic (ICTY AC 1997) Facts

Answer 55

Erdemovic pleads guilty to shooting Muslim men/boys in Srebrenica but claims he acted under duress; since duress is not contemplated as a defense under the ICTY Statute, Appeals Chamber must decide whether it can be applied via another source of international law

Question 56

Prosecutor v. Erdemovic, Joint Separate Opinion of Judge McDonald and Judge Vohrah

Answer 56

Civil law systems: duress is generally a complete defense to any crime; CL systems: duress is a defense, although in some States incomplete and not for all crimes; other states: duress is not a D where the harm sought to be prevented is less than the harm caused; other other states: duress can only serve as a mitigating factor

Question 57

Schachter's Five Categories of General Principles

Answer 57

1. Principles of municipal law recognized by civilized nations, 2. general principles of law derived from the specific nature of the international community, 3. principles intrinsic to the idea of law and basic to all legal societies, 4. principles valid through all kinds of societies in relationships of hierarchy and co-ordination, 5. principles of justice founded on the very nature of man as a rational and social being

Question 58

Key General Principles

Answer 58

Equity and Proportionality

Question 59

Statehood

Answer 59

subjects of international law are international legal persons with the legal capacities to make international law, enjoy legal immunities, bring a legal claim on their own behalf, bear responsibility for wrongful acts, and possess legal rights and duties

Question 60

States can become a "State" via

Answer 60

break-up, secession, merger, absorption, emergence from colonial status (once)

Question 61

Montevideo Convention (1933)

Answer 61

permanent population, defined territory, government, capacity to enter into relations with other states

Question 62

Declaratory Theory

Answer 62

says a state is formed if it objectively meets the Montevideo Convention criteria

Question 63

Constitutive Theory

Answer 63

says a state is formed only when it is recognized by other states via formal statement, opening of diplomatic relations, or voting to allow the entity into the UN

Question 64

Socialist Federal Republic of Yugoslavia

Answer 64

SFRY is an original member of the UN in 1946; in 1990 consisted of six international republics, each decided to seek recognition as a State over next several years; recognition by Badinter Commission, UN, and EU

Question 65

Prohibitions on Recognizing Statehood

Answer 65

UNSC has prohibited state recognition where a new State has been formed by a minority governmnt based on racial discrimination, and if the new State has been formed based on an unlawful use of force

Question 66

Other types of territorial entities

Answer 66

Self-governing colonies, league mandates, UN trusteeships, Non-self-governing territories, national liberation movements as representatives of peoples

Question 67

Self-Determination

Answer 67

UN Charter Ar. 1(2), the purposes of the UN are to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples

Question 68

competing concepts with Self-Determination

Answer 68

desire to protect the territorial integrity of States, desire to protect persons from abuse and promote their own governance

Question 69

Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (ICJ 2024)

Answer 69

right to territorial integrity as corollary of the right of self-determination, protection against acts aimed at dispersing the population and undermining the integrity as a people, right to exercise permanent sovereignty over natural resources, right to freely determine political status and pursue economic, social, and cultural development

Question 70

Criteria for recognizing governments

Answer 70

effective control test, UN Secretary General Memo (1950); Legitimacy Test, Haitian crisis

Question 71

Estrada Doctrine

Answer 71

recognition of a government is unnecessary once the state has been recognized

Question 72

Legal Consequences of (Non-) Recognition

Answer 72

Capacity to bind a state - Tinoco Claims Arbitration (Great Britain v. Costa Rica)(1923); Capacity of Insurgency to Bind areas under control; Capacity to sue/be sued - Salimoff & Co. v. Standard Oil, National Petrochemical Co. of Iran v. M/R Stolt Sheaf

Question 73

uti possidetis

Answer 73

use of previous boundary lines

Question 74

Frontier Dispute (Burkina Faso v. Mali) (ICJ 1986)

Answer 74

principles emerged to prevent the independence and stability of States being endangered

Question 75

International Organization

Answer 75

an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality

Question 76

Legal Personality

Answer 76

Subject of international law is potentially capable of making international law, possessing rights and duties, bearing responsibility for wrongful acts, bringing an international legal claim in its own name, enjoying privileges and immunities

Question 77

Reparation for Injuries (ICJ AO 1949)

Answer 77

enduring significance of the case: establishes the basic contours of the constitutional law of IOs with concepts such as personality, inherent powers, express powers, implied powers; the definitive end of the Westphalian era where only State conduct matters