International Law Midterm

How is nationality acquired? Limits on State Power & Key Cases - BACKGROUND

Nationality is typically acquired by birth—either by jus soli (right of the soil) or jus sanguinis (right of blood)—by naturalization, or, less commonly, by marriage or adoption. States have broad discretion to determine who their nationals are, as affirmed by the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which recognizes that “it is for each state to determine under its own law who are its nationals.” However, this discretion is not unlimited—it must comply with international conventions, custom, and general principles of law. States cannot arbitrarily impose nationality or act in ways that create statelessness or conflict with another state’s sovereignty. Additionally, international human rights instruments like the Universal Declaration of Human Rights (Article 15) and the 1961 Convention on the Reduction of Statelessness recognize the right to a nationality and restrict arbitrary deprivation of it. Nationality laws must thus reflect a genuine link between the individual and the state and avoid situations where competing claims produce dual or absent nationality.

How is nationality acquired? Limits on State Power - Significance/examples

Jus in bello, also known as international humanitarian law, governs the conduct of parties during armed conflict regardless of whether the war itself is lawful. Its core principles require parties to distinguish at all times between combatants and civilians, to ensure that attacks are directed only at legitimate military targets, and to avoid launching attacks that would cause civilian harm disproportionate to the anticipated military advantage. The principle of necessity limits force to what is required to achieve a legitimate military objective, while the principle of humanity prohibits methods or weapons that would cause unnecessary suffering. These rules are complemented by the obligation to take all feasible precautions to minimize harm to civilians and civilian objects. A central provision in this field is Common Article 3 of the four Geneva Conventions, which applies to non international armed conflicts and establishes minimum protections for individuals who are not taking active part in hostilities, including civilians, wounded fighters, and detainees. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, hostage taking, and outrages upon personal dignity, and it also requires that sentences be imposed only by a regularly constituted court with essential judicial guarantees. Common Article 3 has attained the status of customary international law and serves as a foundational baseline for the regulation of internal conflicts in the modern era.

Explain briefly the requirements often found in extradition treaties to limit transfers of those in custody. How did they apply in Sheinbein, Soering, and Assange? - Background

Extradition treaties often include procedural and human rights safeguards to ensure that extradition does not violate international norms. Common principles include double criminality (the offense must be punishable in both states), the rule of specialty (the person may only be tried for the offense for which extradition was granted), and non-extradition for political offenses. Modern treaties also incorporate prohibitions where there is a risk of torture, inhuman treatment, or the death penalty, in line with Article 3 of the European Convention on Human Rights (ECHR) and the Convention Against Torture (CAT). States may also refuse extradition of their own nationals, reflecting sovereignty concerns and obligations under domestic law. Extradition thus requires balancing state cooperation in criminal justice with individual protection from abuse, consistent with human rights norms and the principle of aut dedere aut judicare (extradite or prosecute).

Explain briefly the requirements often found in extradition treaties to limit transfers of those in custody. How did they apply in Sheinbein, Soering, and Assange? - Significance/cases

In Soering v. United Kingdom (ECHR 1989), the Court held that extradition to the U.S. would violate Article 3 of the ECHR due to the “death row phenomenon,” establishing that states cannot extradite where there is a real risk of inhuman or degrading treatment. In the Sheinbein case (Israel, 1999), Israel refused to extradite Samuel Sheinbein to the U.S. because Israeli law prohibited extradition of nationals at that time, highlighting how domestic constitutional principles can restrict treaty obligations. The case later prompted legislative reform in Israel to permit extradition under certain conditions. In the Assange proceedings (UK 2019–2024), courts grappled with whether extradition to the U.S. would expose Julian Assange to unfair trial conditions or political prosecution, invoking similar protections under the ECHR and human rights law. Collectively, these cases demonstrate how extradition operates at the intersection of international cooperation, human rights, and state sovereignty, reflecting evolving standards of fairness and due process in international law.

Outline the main principles for establishing jurisdiction and what rules block courts from hearing cases. Then analyze which apply in either the Lotus case or Alvarez-Machain - Background

States assert jurisdiction based on five main principles: territoriality (acts within their territory), nationality (acts by their nationals abroad), passive personality (acts committed abroad against their nationals), the protective principle (acts threatening national security), and universality (certain crimes like piracy, genocide, and torture can be prosecuted by any state). However, international law imposes limits on jurisdiction, including sovereign immunity (states cannot be sued without consent), the act of state doctrine (courts won’t question sovereign acts of foreign states within their territory), and comity (respect for other states’ legal authority). Jurisdiction is thus a balance between state sovereignty and the need to prevent impunity for transnational crimes.

Outline the main principles for establishing jurisdiction and what rules block courts from hearing cases. Then analyze which apply in either the Lotus case or Alvarez-Machain - Significance/cases

In the Lotus case (France v. Turkey, PCIJ 1927), the Court held that states may exercise jurisdiction unless explicitly prohibited by international law, establishing the “permissive principle” of jurisdiction. Turkey was entitled to try a French officer after a collision on the high seas, affirming that sovereignty permits jurisdictional assertion in the absence of prohibitive rules. In contrast, United States v. Alvarez-Machain (U.S. Supreme Court, 1992) tested extraterritorial jurisdiction when a Mexican national was abducted from Mexico by U.S. agents. The Court allowed prosecution despite the abduction, sparking controversy over violations of international comity and sovereignty. These cases reveal the tension between territorial integrity and enforcement of justice, with Lotus favoring broad state freedom and Alvarez-Machain raising questions about the abuse of extraterritorial power.

Explain Res Communis and why this notion is important in international law? - Explanation

Res communis refers to things not subject to national appropriation and held in common for the benefit of all humanity. This concept applies to areas such as the high seas, outer space, and Antarctica, governed by international regimes emphasizing collective stewardship. Under Article 89 of the United Nations Convention on the Law of the Sea , no state may validly claim sovereignty over the high seas. Similarly, the Outer Space Treaty (1967) declares that outer space, including the Moon, is “the province of all humankind.” Antarctica is protected under the 1959 Antarctic Treaty, which suspends territorial claims and restricts military activity, preserving it for peaceful and scientific purposes.

Explain Res Communis and why this notion is important in international law? - Examples

The high seas are open to all states for navigation, fishing, and scientific research, but also subject to duties of conservation and cooperation. The freedom of the high seas is limited by obligations to prevent pollution and protect marine biodiversity. Similarly, the Outer Space Treaty forbids national appropriation, militarization, or sovereignty claims. Res communis is essential because it prevents monopolization of global commons and encourages collective management, ensuring equitable access and sustainable use across generations.

What is the significance of the Filartiga case? - Context

The Filártiga v. Peña-Irala (1980) case was a landmark in U.S. and international human rights law, as it allowed foreign nationals to sue for abuses committed abroad under the Alien Tort Statute (ATS). The court held that torture under color of official authority violates universally accepted norms of international law, referencing the UN Charter, Universal Declaration of Human Rights, and Declaration on the Protection from Torture as sources of customary norms.

What is the significance of the Filartiga case? - Significance

This decision opened U.S. courts to claims based on international human rights violations, transforming the ATS into a tool for transnational accountability. It affirmed that individuals can be held liable for breaches of jus cogens norms, even outside U.S. territory. Later cases like Kiobel v. Royal Dutch Petroleum (2013) narrowed the ATS’s scope, restricting its extraterritorial reach, but Filartiga remains foundational for establishing torture as a universally prohibited act enforceable through domestic courts.

What are the main requirements of statehood, and how do they apply in Bank of China v. Wells Fargo Bank & Union Trust Co. (1952)? Explain on what basis the judge decided the case. - Background & significance

The Montevideo Convention (1933) outlines four criteria for statehood: a defined territory, a permanent population, a government, and the capacity to enter relations with other states. In Bank of China v. Wells Fargo (1952), the court addressed which Chinese government—the People’s Republic of China (PRC) or the Republic of China (ROC)—had legal standing. The U.S. had not yet recognized the PRC, so the court deferred to executive recognition policy, holding the ROC (Taiwan) as China’s legitimate government.

This case shows that recognition determines who may represent a state in legal matters, reinforcing that statehood and recognition are distinct but intertwined. The decision reflects the political question doctrine—courts defer to the executive in matters of foreign recognition—to preserve consistency in U.S. foreign policy.

How are norms of customary international law identified? What specific custom was the crux of the Abdullahi v. Pfizer, and to what extent, if at all, do you agree with the Court’s reasoning? - Context

Customary international law arises from two elements: state practice (a consistent and general practice) and opinio juris (a belief that such practice is legally required). To qualify as custom, the practice must be widespread, representative, and consistent. Instruments such as the ICJ Statute (Article 38(1)(b)) formalize these criteria, and courts often consult treaties, UN resolutions, and state declarations as supporting evidence

How are norms of customary international law identified? What specific custom was the crux of the Abdullahi v. Pfizer, and to what extent, if at all, do you agree with the Court’s reasoning? - case analysis

In Abdullahi v. Pfizer (2d Cir. 2009), Nigerian plaintiffs alleged non-consensual medical experimentation in violation of international law. The court found that such conduct violated a specific customary prohibition on non-consensual human experimentation, referencing the Nuremberg Code, Helsinki Declaration, and Universal Declaration of Human Rights. This recognition reflected the universality and peremptory nature of human dignity norms. Whether one agrees depends on the perceived clarity of opinio juris: while the principle is widely accepted, critics argue the court stretched jurisdiction under the Alien Tort Statute. Still, the case underscores the evolution of customary human rights law as enforceable in domestic courts.

What is the status of genocide in international law, and how is it defined in the Convention on Prevention and Punishment of the Crime of Genocide. Describe the main holdings of the ICJ . - Definition of genocide

Genocide is a crime under international law and a jus cogens norm. The 1948 Genocide Convention defines it as acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, including killing, causing serious harm, inflicting destructive conditions, preventing births, or transferring children. The Convention obligates states to prevent and punish genocide, regardless of where it occurs.

What is the status of genocide in international law, and how is it defined in the Convention on Prevention and Punishment of the Crime of Genocide. Describe the main holdings of the ICJ . - ICJ piece

The ICJ has affirmed that the prohibition of genocide is a peremptory norm (jus cogens) and that states have erga omnes obligations to prevent and punish it. In Bosnia and Herzegovina v. Serbia (2007), the Court found Serbia violated its duty to prevent genocide at Srebrenica but was not directly responsible for its commission. The judgment clarified the distinction between state responsibility and individual criminal liability, and confirmed that genocide obligations transcend territorial limits, binding all states to act.

What changes have occurred in the interpretation of immunity? Discuss this doctrine in the context of two cases we studied. - Background

The doctrine of sovereign immunity has evolved from absolute (states cannot be sued without consent) to restrictive immunity, which distinguishes between sovereign acts (acta jure imperii) and commercial acts (acta jure gestionis). In Jurisdictional Immunities of the State (Germany v. Italy, ICJ 2012), the ICJ reaffirmed immunity for Germany despite claims arising from WWII atrocities, holding that immunity is procedural, not substantive—it does not excuse wrongdoing but bars jurisdiction. In contrast, Samantar v. Yousuf (U.S. Supreme Court 2010)

What changes have occurred in the interpretation of immunity? Discuss this doctrine in the context of two cases we studied. - Significance

These developments show that while state immunity remains largely intact at the ICJ level, individual accountability has expanded under human rights law and customary norms. The trend is toward distinguishing between legitimate sovereign acts and actions that violate jus cogens norms such as torture or genocide. However, immunity remains a major procedural barrier, especially in cases involving victims of state violence or war crimes. The modern debate reflects a tension between two imperatives: maintaining stable diplomatic relations and ensuring justice for grave international crimes.

Explain the two types of recognition, and the role recognition plays in international relations? Discuss two contexts in which recognition influenced interstate actions. - Definition of terms

There are two main types of recognition in international law: de jure recognition (formal and legal acknowledgment of a state or government’s legitimacy) and de facto recognition (acknowledgment of actual control without full legal endorsement). Recognition determines an entity’s ability to engage in treaties, diplomatic relations, and international organizations. Under international law, states have broad discretion in granting or withholding recognition, but their decisions often have both legal and political implications. Recognition can also be withdrawn or withheld as a form of diplomatic pressure, reflecting the interplay between law and geopolitics.

Explain the two types of recognition, and the role recognition plays in international relations? Discuss two contexts in which recognition influenced interstate actions. - Role in international relations

Recognition decisions often shape global power dynamics and access to international legitimacy. For example, the US recognition of Israel in 1948 allowed it to rapidly establish diplomatic relations and enter the UN, legitimizing its sovereignty despite regional opposition. Conversely, the non-recognition of Taiwan by most states due to the “One China” policy has restricted its participation in international institutions despite effective governance. Another illustration is the recognition of Kosovo by many Western states but not by Russia, China, or Serbia, demonstrating how recognition reflects political alignment as much as legal status. Recognition thus operates as both a gatekeeper and a tool of statecraft in international relations.