Professional Documents
Culture Documents
Only states may appear contentious proceedings before the ICJ; Only states can present a claim on behalf of a national who has been injured by another state, if there is no treaty to the contrary; An individual has no individual rights under customary international law and is dependent on the political discretion of the home state
International Conventions/Treaties
Whether general or particular and establishing rules expressly recognized by the contesting States; The term convention includes (and actually means) treaty Other terms: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation and provision. Law-making treaties vs. contract treaties
Custom
As evidence of a general practice accepted as law; Two elements: (a) Objective Element [general practice] (b) Subjective Element [accepted as law (opinio juris)]
Jus Cogens
Art. 53, Convention on the Law of Treaties (Vienna, 1969): A treaty is void if it conflicts with a peremptory norm of general international law, a norm 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. Examples: prohibition on the use of force, of genocide, slavery, gross violation of the right of people to selfdetermination, racial discrimination, and torture. Erga Omnes obligations of a state to the international community (ex. Not to commit/fail to punish International crimes; not to violate peoples right to self-determination)
Territory
Island of Palmas Case (Netherlands vs. US, Arbitrator Max Huber of PCIJ, 1928) on Territorial Sovereignty; See again North Sea Continental Shelf Cases on whether definition of borders is a requirement; Extent of and jurisdiction over Territory: 1. Modes of Acquiring Territory 2. Law of the Sea (1982 UNCLOS) 3. Airspace 4. Criminal Jurisdiction, etc.; Extradition
Government
-Effective Control (sovereignty, not legitimacy), required; mere existence of government is not sufficient; -Kinds of control: Internal and External -The case of Palestine (State of Palestine as declared in 1988 by PLO) -However, in case of temporary deprivation of effective control, the state does not cease to exist.
Recognition of State
-Theories on Legal Effects of Recognition of State: (1) Constitutive (2) Declaratory -Article 3 of Montevideo Convention acknowledges Declaratory Theory
Recognition of Government
-Doctrines in Recognition of Government: 1. Tobar or Wilson Doctrine 2. Stimson Doctrine 3. Estrada Doctrine - De jure Recognition vs. De facto Recognition; Traditional Effects of Recognition - But, the European Community stipulated on certain common guidelines on recognition of governments.
Jurisdiction
Forms: over Persons, Property, or Events/Acts Case: -Nottebohm Case (Liechtenstein vs. Guatemala, ICJ,1955) on Nationality Theory Criminal Jurisdiction of national courts -Territorial Principle (see: SS Lotus Case) -Nationality Principle -Protective Principle -Universality Principle Case: -Eichmann Case (Attorney General of Government of Israel vs. Eichmann (1961) Extradition and Asylum
Treaties
Read: 1969 Vienna Convention on the Law of Treaties (VCLT) [took effect on Jan. 27, 1980] VCLT applies only to treaties after entry into force (Article 4) The travaux preparatoires was carried out by the International Law Commission (ILC), so its commentary is one of the best sources of interpretation of the VCLT A treaty per VCLT is 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.
B. Consent to be bound: Article 11: Consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. -Ratification occurs only when instruments of ratification are exchanged between the contracting states or are deposited with the depositary. (Arts. 2 (1)(b) and 16.)
C. Entry Into Force -As a rule: as soon as all negotiating states have expressed their consent to be bound by it, unless otherwise stipulated. - Article 18: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
D. Reservation -Article (2)(1)(d): defines reservation as a unilateral statement.. 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 the State. -Allowed only when the reservation is accepted by all the states which had signed (not necessarily ratified) or adhered to the treaty. Case: Reservations to the Genocide Convention Case (ICJ Advisory Opinion, 1951)
E. Registration: Article 102 (1) of the UN Charter: every treaty entered into by any Member of the UN after the Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. Effect of Non-registration: Art. 102 (2), UN Charter
1. 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:
(a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
Defective Treaties
Head of State disregards constitutional requirement for ratification (theory) vs. Art. 46 Unauthorized representative Ultra Vires (Art. 47), when restriction had been made known the the other party Error (Art. 48) Fraud (Art. 49) Corruption of Representative (Art. 50) Coercion of Representative (Art. 51) Coercion by the threat or use of force (Art. 52) Contravenes Jus Cogens (Art. 53)
Termination of Treaties
Pacta Sunt Servanda (Art. 26) Grounds for Termination, Denunciation, Withdrawal, or Suspension: (1) Application of the Treaty (Art. 42) (2) Application of the VCLT (Art. 42) (3) Consent of all the parties, e.g. Desuetude (Art. 54) (4) Discharge through Material Breach (Art. 60) (5) Impossibility of Performance (Art. 61) (6) Rebus Sic Stantibus (Art. 62) (7) Emergence of new Jus Cogens (Art. 64) (8) Outbreak of War (for bilateral treaties)
State Responsibility
Internationally wrongful act Draft Article 3 of the ILC: (a) action or omission attributable to the State under International Law; (b) breach of international obligation of State. Scope of Liability: (1) liable for reparation or compensation, and (2) may be the object of lawful countermeasures by the victim (e.g. reprisals or retortion)
Imputability Doctrine (Principle of Attribution) A State is liable only for its own acts and omissions, and in this context, the State is identified with its governmental organs and apparatus, not with the population (nor with private [vs. ultra vires] acts of government agents). Cf: Case: ILC Draft Articles on State Responsibility Youmans Claim (U.S. vs. Mexico, General Claims Commission, 1926)
When State becomes liable for Acts of Private Individuals: 1. Encouraging individuals to attack foreigners 2. Failing to take reasonable care (due diligence) to protect foreigners 3. Obvious failure to punish individuals 4. Failure to provide injured foreigner opportunity of obtaining compensation 5. Obtaining some benefit from the individuals act 6. Express Ratification of the individuals act. Case: Tehran Hostages Case (United States vs. Iran, ICJ 1980)
Minimum International Standard Doctrine: While it is true that when a person resides in a foreign country, he is deemed to accept the laws and customs of that country, such that his national state cannot base a claim on the fact that he would have been better treated in his home country, he may however make such a claim if the foreign countrys laws or behavior fall below the minimum international standard.
Preliminary objections: 1. Non-compliance with rules concerning nationality of claims. [see: Nottebohm and Barcelona Traction cases]; 2. Failure to exhaust local remedies (ILC Draft Article 22) [see: Interhandel Case (Switzerland vs. U.S., ICJ Report, 1959)] 3. Waiver by the State (vs. Calvo Clause) 4. Unreasonable Delay and Improper Behaviour of injured alien
Jus Ad Bellum
Rules on THREAT OR USE OF FORCE : -Prohibited by UN Charter [Art. 2(4)] -Cases: -Corfu Channel Case (U.K. vs. Albania, ICJ Report, 1949) -Nicaragua vs. U.S., supra. -Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ 1996)
Jus Ad Bellum
Rules on SELF-DEFENSE: -Inherent Case: Caroline case -Recognized by Art. 51 of the UN Charter -Preventive/Anticipatory Self-Defense, allowed? Case: Nicaragua vs. U.S., supra. -Self-defense and Claims to Territory? -1970 Gen. Assembly Friendly Relations Declaration Case: Falkland Islands Case
-Self-defense against attacks on ships and aircraft? Case: Corfu Channel Case -Armed Protection of nationals abroad? -Armed Reprisals? -Collective Self-Defense?
International Criminal Court (ICC), governed by the Rome Statute (July 1, 2002) has jurisdiction over the following crimes: 1. Genocide 2. Crimes Against Humanity 3. War Crimes 4. Crime of Aggression
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