IL - Articles and Latin

ubi societas, ibi jus

where there is society, there is law

no liquet

for which there is no applicable law (“it is not clear”)

UN Charter, 2(1)

sovereign equality: equality of States before the law, no State is subjected to the laws of another.

UN Charter, 2(2)

pacta sunt servanda: States shall execute their obligations under IL in good faith

UN Charter, 2(4)

Prohibition of the use of force: No threat or use of force, direct or indirect, may be used. Exceptions: UNSC authorisation or self-defence.

UN Charter, 2(3)

Peaceful settlement of disputes: exclusion of force from dispute resolution.

UN Charter, 33

Means of peaceful dispute resolution: negotiation, mediation, arbitration, conciliation

UN Charter, 2(7)

Intervention allowed only for peace and security motives

ICJ Statute, 38(1)

Sources of international law: conventions, customs, general principles of law, judicial decisions and teachings of the most recognised publicists.

Consuetudo/usus lonagevus

1st element of custom: repetition of practice and acts.

Opinio juris sive necessitatis

2nd element of custom: conviction that execution of acts is part of the law.

ICJ, North Sea Continental Shelf, 1969

Repetition of acts in material element of custom.

The ICJ emphasized that for a customary norm to emerge, state practice must be “extensive and virtually uniform”. In this case, the Court examined whether Article 6 of the 1958 Geneva Convention on the Continental Shelf (which promoted the equidistance principle) had become customary law. It concluded that it had not, partly because state practice was not sufficiently uniform or consistent.

VCLOT, 53

Non-derogability of jus cogens norms.

ICJ, Right of Passage over Indian Territory, 1960

Regional customs

1. The ICJ acknowledged that customary international law may arise between two states, even if not recognized globally. It affirmed that regional or bilateral custom is a legitimate source of international law, provided it meets the usual criteria: consistent and general practice and opinio juris (belief that the practice is legally obligatory).

2. Assessment of Evidence:
   The Court examined historical conduct, treaties, and official communications between Portugal and British India (and later the Republic of India). While there was a history of tolerating Portuguese passage, the Court found insufficient evidence of a legally binding customary right of passage for all categories (especially for armed forces and officials).

ICJ Statutes, 38

Ex æquo et bono ruling.

Contra legem

Ruling in equity cannot exist in violation of positive law.

ICJ, Nuclear Tests Cases, 1974

Case dropped following French unilateral act declaring it would stop atmospheric nuclear treaty.

ICJ, Barcelona Traction, 1970

The ICJ stated that:

“…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection… Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person.”

UN Charter, 103

UN Charter supremacy

4 constitutive elements of a State

Defines territory, permanent population, effective control, capacity to enter into foreign relations

4 forms of extinction of statehood

Absorption, merger, dismemberment, dissolution

4 crimes for individual liability

Genocide, crimes against humanity, war crimes, crimes of agression

1971 Declaration of General Principles of International Law Concerning Friendly Relations

UN GA Resolution:

1. Refrain from the threat or use of force.

2. Settlement of international disputes through peaceful means.

3. Non-intervention

4. Cooperation

5. Equal rights and self-determination

6. Sovereign equality

lato sensu

broadly (opposite of stricto sensu)

ut singuli

decision taken unilaterally, often coercive measures

UN Charter, 41

Non-military coercive measures

UN Charter, 42

Military coercive measures

UN Charter, 39

Pre-condition of threat to peace and security in coercive measures

UN Charter, 40

Provisional measures before coercive measuresU

UN Charter, 25

All member States must comply with UNSC decision.

UN Charter, 51

right to self-defence

UN Charter, 43

All States have to make resources available to UNSC in the event of a choice to use coercive measures.

UN Charter, 45-47

Centralisation of military command in the UN

UN Charter, 55

MS’ endeavour to promote the respect of human rights.

UDHR, 1948

Comprehensive source of inspiration for observation of human rights

ICCPR, 1966

binding codification of civil and political rights (life, against degrading treatment)

ICESCR, 1966

binding codification of economic, social, and cultural rights

1966 Optional Protocol to ICCPR

individual complaints to UN Human Rights Committee

1989 optional protocol to ICCPR

Abolition of death penalty

2002 optional protocol to ICESCR

individual complaints mechanism to UN ESCR Committee

ECHR, 1950

regional HR framework for Europe

ACHR, 1969

regional HR framework for Europe

ACHPR, 1981

regional HR framework for Africa

CAT, 1984

international treaty outlawing torture (174 parties)

CRC, 1989

international convention on children’s rights (196 parties [all except the USA])

ACHR, 68 (1)

States must comply with judgement of the IACtHR.

territorial jurisdiction

power to regulate people, property, and circumstances through executive, legislative, and judicial means on State territory.

personal jurisdiction

extraterritorial application of jurisdiction when matter concerns a national or national interest

universality principle

competence of every State to prosecute offenders of crimes against peace and humanity, piracy, war crimes, genocide.

UNCLOS, 1982

regulation of the law of the sea

UNCLOS, part II

about territorial waters and contiguous zone

baseline

low-water level on large scale coastal charts recognised by coastal State.

UNCLOS, 17

right of innocent passage

UNCLOS, 33

contiguous zone

UNCLOS, part XV

peaceful means of settlement related to law of the sea (refers to articles 2(3) and 33 of UN Charter).

UNCLOS, Part VII, Section 2

Preservation of marine resources through cooperation

UNCLOS, part XI

Provisions relating to the Area

1959 Antarctic Treaty

Suspension of territorial claims to Antarctica

1998 Madrid Protocol to Antarctic Treaty

Environmental protection in Antarctica and prohibition of mining.

UNOOSA

secretariat of UN COPUOS

OST, 1

freedom of exploration, investigation, and use of space by all States

OST, 2

prohibition of national appropriation of celestial bodies

OST, 3 and 4

Prohibition of the use of force in space

OST, 5

astronauts are envoys of all mankind, affording them any assistance and information

OST, 6

international responsibility for national acts in outer space

OST, 7

international liability for damage caused by objects

OST, 8

State jurisdiction and control over objects launched

OST, 12

principle of cooperation and reciprocity (spacecraft open to all nationalities)

res nullius

which belongs to no one

res communis

which belongs to everyone

1969 Moon Treaty, 11(5)

establishment of an international regime to govern the exploitation of the Moon

1961 VCDR and 1963 VCCR

codification of diplomatic law

VCDR, 2

establishment of diplomatic relation by mutual consent

VCDR, 4

principle of agrément

VCDR, 9

Persona non grataV

VCDR, 22

inviolability of the diplomatic mission

VCDR, 29

Personal inviolability

VCDR, 31

immunity from jurisdiction of the diplomatic agent

VCCR, 12

exequatur

VCCR, 36(1)

freedom to communicate with nationals

5 entities of World Bank Group

IBRD, IDA, MIGA, IFC, ICSID

5 consequences for a violation of IL

1. Political pressure

2. Individual measures by States

3. Individual measures by IOs

4. Collective coercive measures decided by UNSC.

5. State responsibility for wrongful act

2001 ILC Draft Articles on RSIWA, 2

substance of IWA (action and violation)

2001 ILC Draft Articles on RSIWA, 30

Cease act

2001 ILC Draft Articles on RSIWA, 31

Make full reparation