Trivia Random Questions Flashcards
1
Q
When was the genocide convention adopted and who created it?
A
Adopted by the UN GA in 1948
2
Q
How many members in the convention on genocide?
A
Entered into force in 1951 and has 153 state parties
3
Q
Who is protected by the genocide convention ?
A
It protects 4 groups: 1) national 2) ethical 3) racial and 4) religious groups. From intentionally physical destruction
4
Q
What 4 crimes does the ICC have jurisdiction over and explain what they are in detail?
A
1) the crime of genocide (specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by others means.
2( the ICC can prosecute crimes against humanity- serious violations committed as part of a large scale attack against any civilian population. There are 15 forms of crimes against humanities in the Rome statute: murder, take, imprisonment, enforced disappearances, enslavement, sexual slavery, torture, apartheid and deportation.
3) war crimes are grave breaches of the Geneva conventions in the context of armed conflict and include for instance the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments or building etc.
4) crime of aggression - the used of armed force by a state against the sovereignty, integrity or independence of another state. (The definition of the crime was adopted through amending the Rome statute in Kampala, Uganda, in 2010)
5
Q
Nuremberg trials?
A
The Nuremberg trials were held by allies, US, Great Britain, France, the Soviet Union, against the defeated Nazi germany- they set up international military tribunal to prosecute and punish the major war criminals and carrying out invasions of other countries across Europe.
6
Q
ICC adopted when and how many members?
A
Adopted in 1998, now has 125 members (Ukraine the newest member)
7
Q
When did the Rome statute - the legal basis for establishing the permanent ICC- enter into force?
A
In 2002, after ratification by 60 states
8
Q
What is interpretation in law?
A
Interpretation in law is the process of giving meaning to legal texts. Legal documents, whether treaties, constitutions or law are often written in a way that can be understood in multiple ways. This ambiguity is not necessarily a weakness of the law but can also be a strength. It allows diverse parties to agree on the same text while interpreting it in ways that fit their needs.
9
Q
Purpose of interpretation?
A
lawyers use interpretation to clarify the meaning of texts, navigate ambiguities, and apply the law to real-world situations. This process enables legal systems to adapt to changing circumstances while maintaining consistency.
A universal issue: the challenge of interpretation is not unique to IL. It applies to all legal systems, including domestic constitutional law. E.g opposing lawyers can often present equally convincing interpretations of the same provision, demonstrating how interpretation enables flexibility in legal reasoning.
10
Q
Is the ambiguity in treaties bad?
A
Interpretation is a technique that lawyers use to give meaning to text, it can both be seen as a weakness of the law or the opposite, it could be a strength that you can read it in different ways because it allows different people to come together and agree on some language - it isn’t just international law issue, just any law-such as constitutional law.
11
Q
Where is interpretation regulated?
A
In IL interpretation is primarily regulated by art. 31-33 of the VCLT 1969.
12
Q
What does art. 31-33 of the VCLT focus on?
A
Interpreting treaty with a focus on:
The ordinary meaning of the text
The context in which it was written
The object and purpose of the treaty.
Interpretation is not a straightforward process like translating a document from one language to another. It is a complex technique that considers multiple factors including legal principles, intent and context.
13
Q
Travaux préparatoires?
A
This refers to preparatory documents and records created during the drafting of a treaty. These can include meeting minutes drafts negotiations records and statements made by parties involved in creating the treaty. (This is mentioned in art. 32 VCLT as supplementary means of interpretation. Can clarify ambiguity.
14
Q
VCLT when adopted and when entered into force?
A
Adopted in 1969 and entered into force 1980
15
Q
VCLT how many members?
A
116 state parties and further 15 states have signed but not ratified (including the US)
16
Q
What are the two key questions to consider when applying IL to a situation?
A
1) Is there a rule? Start by identifying if a rule exists such as in a treaty or customary law.
2) is the rule binding on the party or the actor in question ?
A treaty is binding only on states that have ratified it, while costumers law can bind states universally
17
Q
Why are treaties often the starting point in legal analysis?
A
Treaties provide explicit written rules that are easier to identify and apply. Judges often start with treaties because they explicitly set out obligations. However treaties are not inherently “more binding” than customary law
18
Q
What is codification in the context of IL?
A
Codification is the process of writing down unwritten rules of customary IL into a formal written agreement such as a treaty or convention.
For example, the Vienna convention on the law of treaties codified rules about treaties that already existed in customary law.
19
Q
How does codification differs from creating new rules?
A
Codification translates existing customary rules into written form (e.g. VCLT art. 31-32 codified treaty interpretation rules)
20
Q
What role does the ILC (international law commission GA sub-body) play in codification?
A
The ILC’s mandates includes codifying UK meaning it drafts treaties that transform customary rules into written ones.
21
Q
What is the relationship between treaty rules and customary law?
A
Treaties codify rules that may already exist under customary law
22
Q
Why move customary rule and codify them into written rule ?
A
Easier accessibility: rules may not easily be identifiable by all states, codification makes it easier to search them up and having them in a single document.
Customary law is based on general practice but there isn’t per se an explicit consent from every state- codification through treaties allow states to formally agree on the rules strengthening their legitimacy.
Also states move from Customary rule to codified written rules not because codification makes the rules clearer or ensures universal agreement. Moreover not all states ratify a codified treaty even if it reflect CL as they might not agree with how these rules have been formulated or want to preserve the flexibility in CL. (E..g not all states have ratified the VCLT even if it’s a codification of existing laws)
23
Q
Advantage for treaties?
A
1) treaties are written down which make them more explicit and easier to reference and apply compared to unwritten customary law.
2) while treaties can still be ambiguous, they provide a formalized and framework that states can refer to in disputes or negotiations
3) treaties require explicit consent (ratification) this party members have formally agreed to be bound by the terms
4) more structured compliance
24
Q
Disadvantage of treaties
A
Treaties aren’t universally applicable, only bind states that have ratified them - could be some issues there with a fragmented system
There is ambiguity
25
Advantages and disadvantages of customary law
Advantage: customary law binds all states
Flexibility making it adaptable
Disadvantage: ambiguity - hard to reference
Hard to determine whether a customary rule exists as it requires evidence of consistent state practice and opinion juris - might be difficult to prove unlike treaties where you can pull up the treaty and say this state is bound to x and x.
26
Who does interpretation in IL
Interpretation is done by everyone involved in IL including:
1) parties affected by the rule, e.g. states, organization)
2) courts, when resolving disputes or applying the law
3) governments, civil society groups and agencies as they justify their actions in line with international obligations.
(Each actor uses interpretation to fit the rule to their behavior and explain compliance with the law)
27
What are steps of treaty interpretations?
So when thinking about this look at art. 31-32 in the VCLT.
28
Steps to treaty interpretation -what does art 31 say?
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context: 12
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
29
Art. 32 VCLT?
This art. Comes after 31-if looking at art. 31 didn’t help with interpretation THEN you can look at the steps in 32-which is looking at the intention of the drafts and drafting history (travaux préparatoires) if the text remains ambiguous or leads to an absurd result. (Supplementary means)
30
How does interpretation differ from precedent in IL?
Interpretation: Involves analyzing treaty text, context, and practice to determine meaning.
Precedent: A domestic law concept where higher court rulings are binding on lower courts.
In international law, there is no binding precedent due to the decentralized nature of the system. Instead, courts rely on state practice or past interpretations to guide rulings.
31
What are different approaches to treaty interpretation:
Textual Approach: Focuses on the literal wording of the treaty.
Intentional Approach: Looks at the intention of the drafters (Article 32).
Contextual Approach: Considers the broader context, including the treaty’s object and purpose.
Teleological Approach: Interprets the treaty in light of its overarching goals to adapt it to modern challenges.
32
What is violation of sovereignty?
The act of breaching or violating on a state’s independence and its right to govern without external interference
33
What is violation of Territorial integrity
Involves the unlawful breach of a states borders or taking its land without consent (invasion annexation)
34
Who can be prosecuted for crimes against aggression?
Only head of states and their leaders (military etc) responsible for planning with the intent of launching an unprovoked invasion
35
Why is the wording of a treaty the first step in interpretation?
Wording is the starting point because it provides the literal meaning of the terms. However, interpretation does not stop here; it requires looking at context, object and purpose to ensure a comprehensive understanding.
36
What is context in treaty interpretation
Context includes the provision in question and other related provisions in the treaty. For example, when interpreting a term other articles in the treaty may provide clarity or guidance on it meaning.
37
What role does object and purpose play in treaty interpretation?
Object and purpose justify a certain meaning of the treaty. If explicitly stated, they can guide interpretation(e.g., advancing human rights in a human rights treaty) if not stated, they might be inferred from the preamble or even the drafting history.
38
What challenges arise when determining a treaty’s object and purpose?
Challenges include:
States may not agree on the objectives or exclude them from the treaty text.
Sometimes object and purpose are unclear requiring reliance on other principles.
(You can see a lot of treaties do state their object and purpose on the first articles or preamble)
39
How does state practice affect treaty interpretation?
State practice involves examining how states have applied or used the treaty in the past. For example, in article 124 of the ICC statute, France and Colombia previously invoked the provision in a specific way, which could influence interpretation,
40
Why is treaty interpretation considered a “combined operation”
Interpretation involves multiple elements (wording, context, object, purpose and states practice) that work together to form a holistic understanding: it’s not about focusing on one element but balancing them all to reach a reasoned conclusion.
41
What does “accepted as law” mean in the context of customary IL?
It refers to opinio juris, the belief that a certain practice is carried out because it is legally required, not just out of convenience or habit
42
Can state practice alone establish customary IL
No, state practice must be accompanied by opinio juris to establish customary IL?
43
Give an example of a rule accepted as law in customary IL?
Prohibition of genocide: state believe it is legally obligatory not to commit genocide
Diplomatic immunity: states respect it because they believe it is a binding legal obligation
44
How can states demonstrate opinio juris
By publicly justifying their actions based on legal obligations.
Through consistent behavior accompanied by statements or actions indicating a belief in the legal necessity of the practice.
45
Opinio juris is? In customary law?
The belief or conviction by states that their actions or inaction are legally required, not just practical, traditional or political.
46
How to identify customary law and example?
Identify: opinio juris - the belief that the practice is legally obligatory and general state practice - widespread and consistent actions by states.
Example: e.g. the GA, made a resolution on the death penalty, recently here in December 2024 with 130, however just because majority voted against the use of death penalty, there is a need for consensus- to prove a custom against the death penalty, states must show not only that states don’t use it but also that they abstain because they it’s legally prohibited - not for political or pragmatic reasons.
47
Challenges of opinio juris
Hard to document if states are doing something out of legal obligation - it could be for political reasons
It’s difficult to determine states motivations behind their actions
48
Can the GA resolutions create customary law
GA resolutions do not create customary law on their own.
They can however contribute to the formation of custom if:
They are widely supported near consensus.
They are consistently reaffirmed over time with states feeling a sense of legal obligations
49
Difference between custom and treaties
Treaties:
Written - more formal and easier to document
Clearer on who is bound by them
Often accompanied by monitoring/ enforcement mechanisms
Customary law:
Unwritten and harder to prove
Binds all states (unless they persistently object)
Often emerges where treaties are politically infeasible.
50
What are the advantages of customary law over treaties
Custom applies to all states unless they are persistent objectors and does not require formal negotiations or explicit consent making it easier to apply universally.
It emerges organically and useful when treaties are politically difficult to negotiate.
51
Why do states sometime prefer customary law over treaties?
The reason why states often prefer customary law is that negotiating a treaty can be challenging and divisive. Reaching agreement on a treaty may result in only a few states consenting to its terms, leaving others excluded. By relying on custom, states can work with norms that are widely recognized and applicable to all, avoiding the risk of fragmenting the international community. However, if a treaty is introduced, it raises questions about the status of custom: Does the treaty replace or undermine the existing custom? Are states not party to the treaty still bound by the customary norm? These complexities highlight the need to carefully consider whether pursuing a treaty is the best course of action in any given situation.
52
What are the main criticisms of the persistent objector doctrine in IL?
It wrongly assume silence equals consent violating the need for explicit state consent under art. 38(1)(b) of the ICJ statute and the ILC’s 2017 guidelines.
The ICJ risks overstepping its mandate by interpreting silence as consent, leading to judicial law-making.
Scholars preference for it reflects their desire for legal predictability not legal reality.
53
From what year can the ICC exercise their jurisdiction?
The court may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after 1 July 2002 and:
Where: The crime was committed in a state party’s territory or a state that accepted ICC jurisdiction.
Who: The crime was committed by a national of a state party.
54
Arguments that Israel actions infringe on Lebanon’s Sovereignty in targeting Hezbollah
Principle of Territorial Integrity:
Under international law, every state has the right to sovereignty and territorial integrity, as enshrined in the UN Charter (Article 2(4)). By carrying out military strikes within Lebanese territory, Israel is violating Lebanon’s sovereignty, regardless of its target.
Responsibility of the Host State (Lebanon):
Lebanon may argue that while Hezbollah operates within its borders, it is not synonymous with the Lebanese state. Lebanon might not fully control Hezbollah, and therefore, it should not be held accountable for its actions. Israel’s actions could be seen as punishing Lebanon for something it may not have the capacity to prevent.
Prohibition of Use of Force:
The UN Charter prohibits the use of force unless explicitly authorized by the Security Council or in cases of self-defense under Article 51. Critics argue that Israel’s targeting of Hezbollah might not meet the threshold for self-defense if the threat is not imminent.
Violation of International Humanitarian Law (IHL):
Cross-border strikes risk harming civilians and infrastructure, violating principles of distinction and proportionality under IHL. Strikes might also escalate regional tensions, increasing instability.
55
Counter-Arguments That Israel's Actions Are Lawful
Self-Defense (Article 51, UN Charter):
Israel argues it is acting in self-defense against an armed group that directly threatens its security and sovereignty. If Hezbollah launches attacks or prepares for imminent action against Israel, targeting them in Lebanon can be justified under the inherent right of self-defense.
Failure of the Host State (Lebanon):
Lebanon has a responsibility under international law to prevent its territory from being used for acts of aggression against another state. If Lebanon is unwilling or unable to stop Hezbollah from carrying out attacks on Israel, Israel may claim the necessity to act unilaterally.
Precedent of Non-State Actors:
The rise of non-state actors like Hezbollah complicates traditional concepts of sovereignty. Israel might argue that when a non-state actor operates like a de facto state entity (e.g., controlling territory, maintaining military capabilities), its actions warrant a self-defense response, even if they occur in another state's territory.
Proportionality and Necessity:
Israel claims its strikes are limited, targeted, and proportional to the threat posed by Hezbollah. If these actions are narrowly focused and aim to neutralize an imminent threat, they could align with international legal principles.
56
What does it mean that opinio juris is accepted as law
Opinio Juris refers to the belief or conviction of a state that its actions are either required or permitted under international law. It goes beyond mere repetition of actions (state practice) and seeks to understand the motivation behind those actions. A state's behavior alone does not create a rule of customary international law unless accompanied by the assertion that the behavior is legally justified.
For example, consider the zones of the Law of the Sea. States don’t just declare territorial waters arbitrarily or based on practical needs, like how far their Coast Guard can patrol. Instead, they explicitly express a legal claim—saying, "This is our territorial sea, and we have the right to control it under international law." That declaration of legal conviction is what transforms repeated practices into binding customary law.
57
When analyzing whether a state action is legally grounded
Start by identifying whether there’s a relevant treaty.
If no treaty exists, look to customary law.
Examine whether the state’s conduct is accompanied by opinio juris, meaning the state claims its action is justified under international law. Without such claims, the action is just behavior, not law.
One relevant example is the concept of humanitarian intervention. For it to become accepted under customary law, states would need not only to engage in interventions but also to claim that their actions are permitted or required under international law.
58
What do you do when trying to find out if a rule exist? E.g. the right to intervention?
1) first step is analyzing whether a right to intervention exists is to check for explicit provisions in treaties, starting with the UN charter - if not there then other treaties (specifically for the right to … there does not exist a treaty)
2) turn to customary IL if no treaty provides a basis, examine wether the right might exist under customary ILA
59
Is state practice enough for customary law?
You cannot establish customary rule just by finding instances where states intervened in other states (e.g. to stop a genocide)
For a rule to exist as customary IL you must show that states not only engage in a specific practice (state practice) but also argue that their actions are legally justified under international law (opinio juris)
E.g. states publicly decelerating that they believe they have a legal right to intervene in such cases. Without such declarations, the actions remain isolated incident or political choices not a legal norm.
60
What are key differences between a right or a duty for a state in IL?
What is a Duty?
A duty means a state is legally obligated to act in a specific way. Failure to fulfill this duty would be a breach of international law. For example:
A state has a duty not to commit aggression against another state. If it does, it violates international law.
States have a duty to respect human rights under treaties like the ICCPR.
What is a Right?
A right means a state is legally permitted to act in a certain way if it chooses to, but it is not required to do so. For example:
A state may have a right to regulate its territorial waters (up to 12 nautical miles under UNCLOS), but it doesn't have to exercise this right—it could allow free passage.
The Key Difference:
A duty involves legal compulsion—a state has no choice but to act or refrain from acting because international law demands it.
A right involves legal discretion—a state has the freedom to act within the bounds of law but is not compelled to do so.
Why is This Distinction Important?
It clarifies whether international law requires a state to act or merely allows it to act. For example:
If a state has a duty, it could be held accountable for not fulfilling it.
If a state has a right, it cannot be punished for choosing to exercise it (or not).
Broader Examples Beyond Intervention:
Right to Self-Defense: A state has the right to defend itself if attacked but is not required to use force if it doesn't want to.
Duty to Prevent Genocide: Under the Genocide Convention, states have a duty to prevent and punish genocide, meaning they must act when certain criteria are met.
61
What is instant customary law?
Instant customary law refers to a concept where a customary international law is formed quickly or immediately due to widespread, unanimous, or particularly significant practice and opinion among states in a short period of time. This contrasts with the usual process of customary law, which typically develops over time through consistent state practice and opinio juris (the belief that the practice is legally required or permitted).
62
Criticism toward instant customary law?
The concept undermines the requirement of consistent state practice over time and risks being misused to justify norms that lack genuine universal acceptance infringing on sovereignty and consent.
63
Example of instant customary law?
Space law- states rapidly accept the specific rules due to the unique urgent need to regulate space activities.
64
What is Particular Customary International Law?
Q: What is particular customary international law, and how does it differ from general CIL?
A: Particular CIL applies only among a limited number of states (e.g., regional or local rules), while general CIL applies universally.
Q: What are the potential challenges of particular CIL?
A: It complicates the universality of international law and raises questions about inclusivity and consistency across regions.
65
What does the ICC represent?
An independent judicial body that may exercise jurisdiction over persons charged with GCWA
66
When did Uganda gain her independence ?
25th October 1962- same year she entered into the UN 💅
67
What are jus cogens norms?
Jus cogens norms are peremptory norms of international law recognized as fundamental principles by the international community. No derogation is permitted, and they can only be modified by norms of similar character.
68
Are jus cogens norms a source of international law?
No, jus cogens norms are not a source of law. They describe the "higher quality" of certain norms derived from treaties or customary international law.
69
What provisions of the VCLT address jus cogens norms?
Article 53: Treaties conflicting with jus cogens norms are void.
Article 64: Jus cogens norms can be replaced by new norms of similar character if the international community agrees.
70
Are states bound by jus cogens norms even if they have not ratified relevant treaties?
Yes, because jus cogens norms are reflected in customary international law, which binds all states.
71
Why is the lack of a definitive list of jus cogens norms problematic?
A: It creates uncertainty about which norms qualify as jus cogens and complicates enforcement and application in specific cases.
72
How does the existence of jus cogens norms impact state sovereignty?
A: While jus cogens norms uphold fundamental principles, they also limit state sovereignty by imposing non-derogable obligation
73
Is the prohibition of genocide a treaty obligation, a jus cogens norm, or both?
A: Both. The prohibition is codified in the Genocide Convention and widely recognized as a jus cogens norm under customary international law.
74
Does art 38 ICJ list Jus cogens as a source of IL?
No it does not as it’s not a source. There is no where that lists jus cogens norms
75
What does art. 53 of the VCLT define as a jus cogens norm? (C.A.N)
1. C: Cannot Be Broken (No derogation is permitted).
• Jus cogens norms are unbreakable rules that no one can override.
2. A: Accepted by All (Recognized by the international community as a whole).
• These norms are universally agreed upon.
3. N: New Norms Only (Modifiable only by another norm of the same character).
• You can change a jus cogens rule, but only with a new rule of equal status.
76
How does the international community decide if a norm has jus cogens status?
A: The Vienna Convention does not explicitly define how to determine this. However, a norm may be considered jus cogens if it is widely accepted by the international community (e.g., prohibition of genocide) and is recognized in treaties or customary international law through practice (state practice) and opinio juris.
77
What is jurisdiction according to Martin?
jurisdictions is like the authority of a state to either legislate on something or to enforce something.
78
Statehood criteria and recognition
The 1933 Montevideo convention outlines the most accepted criteria for statehood. Art. 1 states that a state must:
1)Permanent population
2) Defined territory
3) government
4) capacity to enter into relations with other states
(Mind you only 17 states have ratified it 💀)
79
Does recognition of a state differ from recognition of a government?
A state is a legal entity while a government merely represents it.
Not recognizing a government does not necessary imply non-recognition of the state itself ( taliban not rec. as gov. in Afghanistan)
80
What are the four criteria for statehood outlined in Article 1 of the Montevideo Convention? (PTGR) (pizza topping get recognized)
1) A permanent population
No specific size of population is required.
2) A defined territory
Disputed borders do not disqualify statehood.The entity must control a consistent area of undisputed territory.
4)A government
The government must exercise control.
It does not need to be democratically elected.
It must have legal independence and uphold international rights and duties.
4) The capacity to enter into relations with other states
The entity must demonstrate the ability to engage in international relations independently.
81
What principles guide the jurisdiction of the ICC? (TN)
Territoriality Principle-
The ICC can prosecute crimes committed within the territory of a state party to the Rome Statute.
Example: A war crime committed in Uganda (a state party) falls under ICC jurisdiction.
Nationality Principle-
The ICC can prosecute crimes committed by nationals of state parties, regardless of where the crime occurred.
Example: A German national (from a state party) commits genocide in a non-state party country.
82
Does the ICC have universal jurisdiction?
The ICC’s does not have universal jurisdiction -although it has been proposed - but IL is a consent based system so…- it’s scope is limited to crimes committed on the territory of a state party.
Crimes committed by national of a state party.
83
Name the 4 types of jurisdiction (T-PPU)
Territorial (subjective and objective)
Every state has the right to exercises jurisdiction over crimes committed within its territory. Territorial jurisdiction cab further be divided.
Personal jurisdiction:
A state may prosecute its nationals for crimes committed anywhere in the world. For instance an English citizen committing a crime abroad can be tried in England.
Passive personality principle: a state may claim jurisdiction over crimes committed abroad against its nationals. Although historically controversial, this principle has gained acceptance particular in cases of terrorism or international crimes.
Universal jurisdiction
Universal jurisdiction allows a state to prosecute certain crimes regardless of where they occurred, the nationality of the perpetrator or the victim. This principle applies to crimes that threaten the international community as a whole.
84
What is territorial jurisdiction? And What are the subjective and objective territorial principles?
T: Jurisdiction based on acts committed within a state’s territory or producing effects within its territory.
Subjective: Jurisdiction over acts commencing within a state but completed abroad.
Objective: Jurisdiction over acts occurring abroad but causing harm within the state.
85
What is personal jurisdiction?
Jurisdiction based on a state’s authority over its nationals (active personality) or crimes against its nationals (passive personality).
86
What is the protective principle?
Jurisdiction over acts threatening a state’s security, even if committed by foreigners abroad.
87
Where can you see Universal Jurisdiction in Treaties and Customary International Law?
Some treaties explicitly establish obligations for universal jurisdiction. Examples include:
1949 Geneva Conventions: Require states to prosecute or extradite individuals responsible for grave breaches of the laws of war - and to clarify the laws of war and the definitions of war crimes. The Geneva Conventions specify that all states parties to the Conventions must prosecute
perpetrators of war crimes in their own courts or hand them over to another state that will prosecute them.
1984 Convention Against Torture (CAT): Obliges states to prosecute or extradite individuals accused of torture found within their jurisdiction.
Where treaties do not apply, customary international law can provide a basis for universal jurisdiction. For instance, crimes against humanity may be prosecuted under customary law even without a specific treaty.
88
List of universal jurisdiction
War crimes
Genocide
Crimes against humanity
Piracy
Torture
89
List of universal jurisdiction
War crimes
Genocide
Crimes against humanity
Piracy
Torture
90
how states have universal jurisdiction?
Today, many states have adopted laws to allow their courts to prosecute international crimes including war crimes, crimes against humanity, torture, and genocide whenever a perpetrator is found in that state’s territory. For example, in 2022 a German court convicted a Syrian national of crimes against humanity, including torture, that were committed in Syria. The perpetrator was a former intelligence official who was accused of overseeing torture, murder, rapes, and sexual assaults in a detention facility in Damascus, Syria. He later came to Germany from Syria and was granted asylum. He was sentenced to life in prison, subject to appeal.
91
Lotus Case (1927)
A French ship (the Lotus) collided with a Turkish ship on the high seas, causing the death of Turkish nationals. When the Lotus docked at a Turkish port, the French officer was arrested.
The Permanent Court of International Justice held that Turkey’s exercise of jurisdiction was permissible because the effects of the collision were felt on a Turkish vessel. This established that states have jurisdiction unless a specific rule of international law prohibits it.
Aftermath: Article 97(1) of UNCLOS reverses the Lotus decision for incidents of navigation on the high seas, restricting jurisdiction to flag states of the vessels involved.
92
What are the two bases for universal jurisdiction in IL?
Treaty obligations and customary IL(opinio juris and state practice)
93
What is state practice?
The various things that the government of one state has done in international relations over a certain period of time - and many western states publish their practice relating to IL in books and periodicals over years and the more accessible a state practice is the more influential it will be in the formation of customary rules
94
What does art. 2(4) UN charter say? And what does it imply
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations”
Main key thing is this phrase “threat or use of force” - prohibits not only the actual use of force (e.g. invasion, bombing) but also the threat of using force (military mobilization or declaration implying coercion”) and raises the question what constitutes a “threat”.
“Against the territorial integrity or political independence of Any state” - protects state sovereignty by prohibiting acts that harm their physical borders or their ability to function as independent entities (political independence)
95
Exceptions to article 2(4)
Art 51 self defense: “nothing in the present charter shall impair the inherent right of Indian or collective self defense if an armed attack occurs against a member of the United Nations until security council has taken measures necessary to maintain international peace and security….” Basically states may use force in response to an armed attack until the security council acts. (Humanitarian intervention challenges the boundaries of article 2(4))
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What does art. 2(7) say?
“Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter but this principle shall not prejudice the application of enforcement measures under ch. 7. “ - meaning this protects state sovereignty and limits the UN’s ability to intervene in purely domestic affairs. What does domestic jurisdiction mean? Any matter it shows the YN foundational principle: respect for state sovereignty, (r2p challenges this saying that the international community has a moral and legal obligation to intervene.@
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What are Reservations?
These are statements made by a state at the time it ratified a treaty, indicating that it does not accept certain provisions or articles of the treaty. Essentially a state can agree to a treaty but opt out if a specific parts of it. A treaty can also say no reservations allowed:
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What does ratifying a treaty mean for a countries sovereignty?
Sovereignty is based on the principle that a state is the supreme authority within its territory. By ratifying a treaty, a state is exercising its sovereignty by voluntarily choosing to accept external rules that will govern certain aspects of its domestic or foreign policy. It’s an expression of the state's free will in entering into an international agreement.
Limit: While a state retains its sovereignty, ratifying a treaty can limit its ability to act unilaterally in areas covered by the treaty. For example, if a state ratifies a treaty that mandates certain environmental protections or human rights standards, it may need to amend its national laws to align with international obligations.
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What is signature to a treaty?
It is Political Expression of Interest.
When a country signs a treaty, it is signaling its political intent to support or join the treaty,
but it is not yet legally bound by its provisions.
No Legal Obligation: Signing a treaty means the country has shown interest in the treaty’s content and agrees not to act in ways that contradict the treaty, but it is not formally a part of the treaty system. This step does not allow the country to participate in treaty organs or be held legally accountable under the treaty.
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What does it mean to Ratifying a Treaty:
Formal Legal Commitment: Ratification is the process where a country’s legislative body (such as a parliament) formally agrees to the treaty. Once a country ratifies the treaty, it becomes legally bound by its provisions.
Full Membership: After ratification, the country is considered a full member of the treaty and is obligated to follow its terms. It can also participate in treaty organs and, if it violates the treaty, may be held accountable in international courts.
Withdrawal or Exit: Countries can later withdraw or "unsign" from a treaty if they choose to do so, through a formal process such as denunciation (as seen in cases like Brexit or Lithuania’s exit from a treaty).
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Does the drafting history matter?
Not necessarily as it’s a secondary means to see the original drafters intent.
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What is the issue with states making far-reaching reservations to human rights treaties, and how does politics influence this practice?
A: States can make reservations to specific articles of a treaty, but sometimes these reservations are so extensive that they undermine the treaty's purpose. This can suggest the state does not genuinely want to implement the treaty but instead ratifies it for political reasons, such as enhancing their international image. By claiming membership in numerous treaties, states can project a commitment to human rights while effectively weakening the treaty's implementation through their reservations.
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Picky dragon guards castle
Montevideo criteria: population, defines territory, government, capacity to enter into relations
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Geneva convention
Year: 1949 has been ratified by 196 states (the Holy See and Palestine) (protects, combatants in field, wounded and sick on land, shipwrecked at sea, prisoners of war, civilians)
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UNCLOS
United Nations convention on the law of the sea- 168 ratification adopted 1982-entered into force 1994
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Human rights council election
The council comprises 47 members each from different regions. Members are elected for a period of three years and can hold council seat for two consecutive terms. If council member commits gross and systematic violations of human rights the GA may surprise membership with a two third Vote of members present. All UN members can run for a seat at the council. Are elected by the GA through secret ballot with absolute majority required.
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How many members needed for a special session for human rights council?
You need 16 members to come together as a special session they can decide any time to hold this special session to address human rights violations and emergencies. - examples are special sessions for ongoing conflict in Sudan, the grave human rights situation in Ethiopia.
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What are the three main sources/reports of information to UPR reviews? (The foundation of the universal periodic review
1)National report: prepared by the states under review.
2) Un reports: include contributions from social procedures (independent human rights experts or working groups appointed by the human rights council, they can focus on specific countries or thematic issues. To report and offer rec. on improvement) treaty bodies and other UN entities
3) stakeholders reports: submitted by NGO’s national human rights institutions and other relevant stakeholders.
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What are the two types of special rapporteurs mentioned by your professor?
Special rapporteurs: independent expert appointed by the UN to address human rights issues, either on:
Thematic or country specific basis. They can focus on issues like torture, the right to housing or human rights violations in specific countries like Belarus Syria or Russia. They are empowered to monitor and report on human rights situations and can be appointed for a four year mandate to investigate the situation in a given country - also if the state doesn’t consent to allow them in, they can still access the victims through the refugees or online etc.
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What are general comments?
Each of the treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in the form of general comments or general recommendations - can maybe have customary law formation
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What is the human rights council and their tools?
HRC is an international body designed for states to collaborate and address human rights issues. However, when human rights situations become critical the HRC has tools to address these issues such as special rapporteurs to report what’s going, commission of inquiry (formal investigative body establish by the HRC to document specific serious human rights allegations of violations. (Non binding)
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How many member states is the human rights council made up of?
47 members states
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The three pillars of r2p
Pillar one: responsibilities of the individual state: this pillar establishes the expectation that states will protect their population from crimes like: genocide, war crimes, ethnic cleansing and crimes against humanity
Pillar two: the international communities responsibility to provide assistance to states in fulfilling their obligations under pillar one such as early warning systems peaceful assistance
Pillar three: international response this pillar stresses the expectations that the international community will react swiftly and decisively if a state fails to protect its population from mass atrocities. (This is most controversial as it raises concerns about the potential for misuse by powerful states for purposes of regime change the infringements upon national sovereignty.
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What does the dictionary say about sovereignty?
“Supreme power or authority” the authority of a state to govern itself and self government.
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Problem with r2p and its pillars?
States a fine with the first pillar, just focusing on their own responsibility while neglecting broader implications. So only focusing on pillar one allows states to avoid difficult commitment under pillar 2 and 3.
Problem with pillar three is that the international communities responsibility to intervene is rarely addressed due to concern about sovereignty.
R2p risks being reduced to rhetoric without meaningful action particularly in situations where international intervention is needed.
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State practice + example?
State practice is simply what states do - as well as what they don’t- such has how far from the coast for example does a state enforce its customary laws?
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How will we know opinio juris when we see it?
Not only must the acts concerned amount to a settled practice, but they must also be such or caddied out in such a way as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it… not out of moral or convince.
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How much state practice is required for the formation of customary IL?
A rule of customary law bind all states other than “persistent objectify” even those states that had not participated in the formation of that rule, general customary law requires there to have been extensive state practice involving that’s states that are specially affected.
