international law moment 2

law

some kind of system of binding rules governing interactions

public law

the rules that govern public authorities, not private individuals

public international law

the rules that come from and govern the interactions and expectations of public authorities with each other

national law

Universal laws that were coming to us naturally through logic and morality. We can deduce the law from universal principles.

positive law

Laws created by sovereigns. We can find the law by examining what states do (“empiricism”), so we look to treaties and customary practices.

declaratory

whether something is a state or not is a question of whether it actually exists as a state in fact. If other states refuse to recognize it, it does not matter, because they are only refusing relations with it. It is still a state.

constitutive theory

whether something is a state or not is a question of whether other states have recognized it as a state and admitted it to the international “club”. States are legal persons, so they are only states when they are granted legal rights and obligations by the international community. Other states have discretion to decide.

Montevideo Convention on Rights and Duties of States, 1933, Article 1

o   (a) a permanent population

o   (b) a defined territory

Must have territory (not artificial islands or territory)

Must be defined territory, but not necessity for defined borders.

o   (c) a government; and

No requirement of a certain type of government or state structure. Or complex government system.

Need strong effective control over territory, but not complete control.

o   (d) the capacity to enter into relations with other states

de jure

a state in law, but maybe not factually operating

de facto

a state in fact, but maybe not recognized in law

internal self-determination

determination in relations with other peoples in the state, i.e. representation, democracy, etc.

external self-determiantion

determination in relations with other states, i.e. statehood.

source of law

where the law comes from

lex specialis

the rule that is more specific for the specific case wins.

lex posterior

the rule that is later in time and reverses the earlier rule wins.

lex superior

the superior law wins –are there superior laws in international law?

1969 Vienna Convention on the Law of Treaties: Present Articles

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.

1969 Vienna Convention on the Law of Treaties: Present Convention

means an international agreement governed by international law and concluded in written form:

(i) between one or more States and one or more international organizations; or

(ii) between international organizations, whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation

must have all of the following for a treaty

1. international agreement

2. concluded between State(s) and/or international organization(s) (or NLMs?)

3. in written form and

4. governed by international law,

bilateral treaty

reservation is simply a new offer for a new treaty.

multilateral treaty

more complicated, look to acceptance/objection buy other parties.

Treaty Interpretation

Text, Context, Object, Purpose, Intent of the drafters

Two elements of customary international law

Practice and Opinio Juris

Practice

the actual behaviour of states (objective element)

Opinio Juris

the belief that the practice is required (subjective element)

prescriptive jurisdiction

authority to make something illegal

adjudicative jurisdiction

authority to judge an act as a violation

enforcement jurisdiction

authority to ensure punishment is realised

personal jurisdiction (ratione personae)

authority over acts

subject matter jurisdiction (ratione materiae)

authority over acts

time period (ratione temporis)

authority at the time

territorial jurisdiction

presence - person commits act within the territory

exclusive nationality

no other country may prosecute national (abandoned)

active nationality

jurisdiction over acts by national abroad

passive nationality

jurisdiction over acts committed against nationals

protective jurisdiction

acts that threaten national interests

universal jurisdiction

Jurisdictions to prosecute foreign national for crimes committed abroad, not necessarily against state’s own nationals.

conditional universal

if in custody

absolute universal

not in custody but outside the state

Immunity - the state

cannot be sued for acts of the state and cannot be held criminally responsible but can be sued for trade/commercial acts

international organisations

similar immunity as enjoyed by states.

individuals

have no immunity inherently. In order to benefit from a privilege or immunity, the person and/or his acts must embody the state in some way and receive immunity on that basis.

privileges

the state cannot exercise prescriptive jurisdiction over certain persons regarding certain acts - so what they do is not unlawful

immunties

The state cannot exercise enforcement jurisdiction over certain persons regarding certain acts, so what they do is unlawful.

inviolable

means either the person cannot be arrested, or the files cannot be seized, or the premises cannot be entered without the consent of the state.

jus ad bellum

law of going to war

jus in bello

law in war usually called “international humanitarian law” or “IHL”

war crimes

those rules of IHL that produce criminal penalties for individuals.

territorial integrity

cannot use force against the entire state, or even just part of it.

political independence

can use force to upset a government or impose political choices.

manner inconsistent with the purposes of the [UN]

Broad statement of the purposes of the UN to promote peace. But also, to remind us of the UNSC in overseeing the use of force.

requirements for use of force to be self-defence

must be an armed attack on the state - imminent attack

must be necessary to defend self (no other options but force)

must be immediate (no time for deliberation)

action taken may not be unreasonable or excessive (must be “proportionate")

only allowed until UNSC is able to take measures

retaliation

states (only states) may respond with “self-help” to another states’ harmful acts (could be illegal acts or legal acts but insulting). (not formally in the UN Charter list of options, but still exists as an option)

retorsion

lawful act but one that harms another state (e.g. severance of diplomatic relations, expel aliens, economic restrictions, suspend foreign aid, etc.) in response to a harmful lawful/unlawful act.

countermeasures

unlawful act but permitted if in response to the other states’s unlawful act.

reprisals

use of force, and are governed by laws on use of force (e.g. UNSC authorized reprisal, self-defence, etc.) so unlikely that they are ever permissible.

determination of wrongful act by the state

1. there has to be an international obligation

2. there has to be a violation that is attributable to the state

I. an act by a human that violates that international obligation

II. and can be attribute to the state (although done by a person, it is considered to be done by the state)

3. there must be some loss or damages suffered by one state as a result

circumstances that might exclude wrongfulness (“defences”)

Including consent, self-defence, lawful countermeasures and perhaps necessity

legal consequences of the breach may include

·      Cessation of the violation

·      Declaration of illegality

·      Assurances of non-repetition

·      Reparations:

·      Obligation to cooperate and end violations of jus cogens.

·      These are owed between states – individual victims of human rights violations may need domestic or international procedures to obtain benefits.

restitution

costs that restore the situation to before the violation

compensation

money for damages, loss or harm resulting from violation