International law 2

subjective territoriality

jurisdiction over all acts that are completed abroad if they are initiated on the territory of the State

objective territoriality

jurisdiction over an offence that is completed on a State’s territory

Lockerbie case, 1988

example of territorial principle

Eichmann case, 1961

universality principle (more like nothing else applied though)

Arrest Warrant ICJ, 2000-2002

Belgium lost; in 2003 they amended the legislation and now there is requirement for some connection to Belgium (like most other European States’ legislation).

par in parem non habet imperium

equals do not have authority over one another; immunity

rex non potest peccare

the king can no do wrong; initial absolute immunity for rulers in civil and criminal matters

acte iure imperii

governmental or sovereign acts

acte iuri gestionis

commercial acts

The Charkieh, 1873

UK High Court of Admirality; one of the first examples of the restricted approach to immunity, where the government (…) only has immunity if they act as sovereign, not as a commercial player in a dispute.

opinio iuris sive necessitas

the belief that an action was carried out as a legal obligation (based on Treaty, CIL etc)

International Treaties as sources of immunity

European Convention on State Immunity - 1972

UN Convention on Jurisdictional Immunities of States and Their Property - 2004

Vienna Convention on Diplomatic Relations - 1961

Vienna Convention on Consular Relations - 1963

relevant case law for jurisdictional immunity of states

Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) - ICJ judgement, 2012

The ICJ judged that state immunity holds in regard of war crimes etc too, so Italian domestic courts cannot make judgements about Germany in civil cases.

ratione personae

personal immunity = from the position a representative holds in a state

ratione materiae

funcitonal immunity = relates to the function of the representative

4 exceptions to protection from criminal jurisdiction to incumbent FMs; Arrest Warrant ICJ

- criminal prosecution by courts in home state

- home state expressly waives immunity

- criminal prosecution before international courts

- prosecution after term expires

→ for acts committed either before or after office

→ for private acts committed during office

national case about restrictions on immunity

Pinochet case; UK courts

Pinochet was a former Chilean dictator/ HoS. UK courts found that he was not entitled immunity from prosecution for the crimes of torture → comnission of these crimes cannot amount to official acts, as there is no way that a HoS has to make this decision to effectively run the country.

ILC report on crimes under IL in respect of which functional immunity shall not apply

- genocide

- CAH

- WC

- apartheid

- enforced disappearances

- torture

nationality vs citizenship

individual and State’s relationship on the international level vs individual’s position within the State

ius soli

gaining citizenship based on the place of birth

ius sanguinis

gaining citizenship based on the parent’s nationality

population transfer/ ethnic cleansing

historical examples include slavery and dispossession of indigenous peoples

can only be legal under IL if: 1, has the consent both the moved and the host population; 2, if consent was given free of direct on indirect negative pressure

European Convention on Nationality 1997

regarding state succession:

- respect for HR

- avoidance of statelessness

- factors to be taken into account when determining sb’s nationality (genuine link, residence, place of birth, wish/ will)

Background: migration, mixed marriages, EU free movement principle

Aspects covered: acquisition, loss and recovery; procedures relating to nationality; military obligation in case of multiple nationalities (…)

UN Convention on The Reduction of Statelessness 1961

- SPs should grant their nationality to people under certain conditions, if otherwise they would be stateless

- SPs should not deprive individuals of their nationality if it would render them stateless

- SPs should generally ensure that the application of their loves does not result un stateless people under their jurisdiction

relevant ICJ case regarding the nationality of legal persons

Barcelona Traction (Belgium v Spain) 1970

flag of convenience

a ship is registered in a country that is not the same as its captain. pretty common, but often thought of as contentious. it is done to avoid e.g. regulations or costs in the otherwise home country.

Registration Convention 1986

- not yet in force

- goal: genuine link between flag state and vessel

- problem: compromise provisions that would provide SP considerable leeway to implement these principles

prerequisites for diplomatic protection

- internationally wrongful act (defendant State has violated the minimum standard)

- they are/ it is of their nationality

- exhaustion of local remedies

ius ad bellum/ ius contra bellum

probition of the use of force

ius in bello

rules about how hostilities must be conducted: LoAC

Hague Law

rules on the conduct of hostilities; regarding the means of and methods of warfare 1899/1907

1954 Cultural Property Convention

1980 Certain Conventional Weapons Convention and Protocol

Geneva Law: 1949

Conventions I - IV; protection for the most vulnerable groups

Injured in the Field, Injured at Sea, POWs, Civilians

Additional Protocols I & II, 1977

persons hors de combat

combatants, when they are unable to fight; injured, wounded, unconscious etc

armed conflict definition, from Tádic/ ICTY

AC = whenever there is a resort to armed force between states OR protracted armed violence between governmental forces and organized armed groups OR between such organized armed groups within a state.

Humanity Principle of IHL

prohibition of unnecessary suffering; requires humane treatment of all persons, especially civilians and POWs.

Distinction Principle of IHL

parties of a conflict must distinguish between civilians and military persons and objectives; only military objectives can be attacked

Military Necessity Principle of IHL

the only measures allowed are those that are taken to achieve a legitimate military objective; this does not justify actions prohibited by the IHL

→ the only legitimate military necessity is to weaken the military capacity of the other side.

Proportionality Principle of IHL

attacks that are expected to cause excessive collateral civilian damage are prohibited; the collateral damage must be proportionate to the expected military gain.

lex specialis

if two laws govern the same factual situation, then the law governing the specific subject matter (lex specialis) will override the other one, which govern general matters.

International Humanitarian Fact-Finding Commission, 1991

permanent objective international body; purpose is to investigate allegations of grave breaches of IHL

the 3 exceptions to immunity from civil jurisdiction in personal capacity for personnel on diplomatic missions

- an action relating to private, inmovable property in the territory of the receiving state

- an action relating to succession, in which the diplomatic agent is involved as a private person and not as a representative of the state

- an action relating to private, professional or commercial activity exercised in the receiving state.

LaGrand case, ICJ; Germany v. US, 2001

the authorities shall inform the person concerned without any delays of their rights under this paragraph.

Convention respecting the Limitation of the Employment of Force for Recovery of Contract Debts - 1907

aka. Drago-Porter Convention; adopted at the Hague Conference in 1907

concerns of powerful states using military force to collect unpaid debt from weaker countries; to limit gunboat diplomacy and encourage arbitration

Kellog-Briand Pact, 1928

the SPs condemn the recourse to war and promise to settle all their disputes by peaceful means

Escalating spectrum of conflict

1. Retorsion (~hostile diplomacy, not unlawful)

2. Countermeasures (otherwise illegal, but justified as a response to a prior wrongful act)

3. Threat of force

4. Use of force (border skirmishes, limited strikes) (prohibited except for the 2 exceptions)

5. Armed Attack = triggers the right to self defense; large-scale attacks, invasion etc.

6. Aggression; manifest violation such as invasion, occupation, annexation; ~ armed attack, just bigger in scale etc; stronger legal and political condemnation

aggression (UNGA Res. 3314, 1974)

the use of armed force by a State against the sovereignty, territorial integrity of political independence of another State, or in any other manner inconsistent with the Charter of the UN

4 exceptions to the prohibition of the use of force

1. Right to self-defense

2. UNSC authorization

3. Humanitarian Intervention

4. Protection of Nationals Abroad