Public International Law Final Exam | Quizlet

public international law

Brand of law that regulates the behavior of states, international organizations and other atypical subjects through sets of rules by regulatory powers of international community

soft law

international law that's non-binding

Sources of international law

o Article 38.- statue of the international court of justice

- Court

- international conventions

- international customs

- general principals of law

- publications and judicial decisions

Lotus Case

Claimant France v Defendant: Turkey

(i) a state must not exercise its jurisdiction outside it's territory unless given specific permission to do so. (UN Charter 27,24)

(ii)State may establish jurisdiction over any part of the world as long as there no specific rule prohibiting it from doing so.

Lotus Principles

1) State can't exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so.

2) Within its territory, a State may exercise its jurisdiction, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law.

SALT

Reducing nuclear weapons between US and Soviet Union

Sovereignity

whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States.

confers rights upon States and imposes obligations upon them

Obligations erga omnes:

against the international community as a whole

territorial integrity

prohibition of sovereign acts in territory of another state

non intervention

to conduct its affairs without outside interference

subjects of international law

states

international organizations

international committee of the red cross

holy chair

sovereign military order of malta

liberation movement, de facto regimes, insurgents and people

individuals

Formation of Territorial States

o Beginning: Treaty of Tordesillas 1494

o Peace of Westphalia 1648

o Nationalization in the late 18th and 9th Century (post civilization)

o Industrialization

International Organizations

· States + founding treaty confer powers to the organization = United Nations Organization

o Art 7 UN Charter

193 members

Determination of Statehood

■ Defined territory

■ Permanent population

■ State authority (Government)

■ (Recognition by other states)

State

· Article 1. Montevideo Convention on the Rights and Duties of States

o States as a person of international law should possess following qualifications:

§ Permanent population

§ Defined territory

§ Government

§ Capacity to enter into relations with other states

territory

✘ geographical space

✘ limited by border

✘ can be acquired by occupation, Annexation, Cession, Acquisitive prescription

population

✘ Permanent association of people, linked by nationality/ citizenship

✘ organization of society

Government

✘ Exercise of state authority within a defined territory

Self Determination of People

✘ higher standards of living, employment, conditions

✘ no definition of people

✘ criteria according to state practice

✘ internal self determination

--> on basis of domestic laws within a country

--> autonomy

✘ external self determination

§ vs territorial integrity of a state

o change of territorial status

§ independence or unification with another state

o with consent of the state

§ or without its consent as an instrument against oppression

ius cogens

a category of norms that govern customary international law

Treaties, Customary International Law, General Principles, Doctrine

treaty

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;

VIENNA CONVENTION ON THE LAW OF TREATIES SIGNED AT VIENNA 23 May 1969, 1155 UNTS 331

VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS, SIGNED AT VIENNA 21 MARCH 1986, NOT YET IN FORCE

treaty - conclusion and entry into force

1. negotiation

2. adoption of the text

3. Authentication of the text

o Article 10

o If negotiating and singing of treaty is done by different people

4. domestic approval

5. Consent to be bound by a treaty

o Article 11

o Signature

o Exchange of instruments

6. entry into force

seek solution by

article 33

· Negotiation

· Inquiry

· Mediation

· Conciliation

· Arbitration

Two Kinds of Processes

· Contentious Jurisdiction

· Advisory Jurisdiction

Contentious Jurisdiction

o Between states

o Binding judgment

Advisory Jurisdiction

o For UN and UN specialized agencies

o Non-binding opinions

treaties - reservations

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 that State

Erga omnes

· Obligations for all

Avena Case

· Right to be asistied by consulates

o People sentenced to death

· Mexico vs USA

· Vienna Convention

· Every violation of international law shall be repaired

Use of Force

· Use of military force/arms from territory of one state to territory of another

·UN Charter prohibits use of force

o Promotes peaceful means

· Exceptions

o Self defense

§ Art 51 of the UN Charter

o Authorization by security council

controversy

Specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another.

Classification of Means of Settlement

✘ Political dispute settlement

✘ Legal Dispute Settlement

Political dispute settlement

Negotiation, Mediation, Inquiry, Good Offices, Conciliation

Legal Dispute Settlement

○ Arbitration

○ International Tribunals/ International Court of Justice

ICJ

principal judicial organ of the UN

article 92 of the UN Charter

Security Council

· Organ primary responsible to maintain peace and security

· 15 members

15 members

o 5 permanent members & 10 non-permanent

10 non permanent members

term of 2 years

elected by General Assembly

5 permanent members

§ China, Russia, Great Britain, Ireland, USA

veto power

decisions to pass

· decisions need affirmative vote of 9 members including the concurring votes of the permanent members

9/15 votes + no veto

Authorization by the Security Council

· Chapter VII, Article 39

· Shall determine the existence of any threat to the peace, breach the peace, or act of aggression and shall make recommendations or decide what measures shall be taken

o Accordance with articles 41 and 42

o To maintain international peace and security

jurisdiction at ICJ

1) parties refer to it

2) all matters specially provided ... in treaties and conventions in force (= by a treaty)

3) declare that they recognize ... the jurisdiction of the Court (=unilateral declaration)

Jurisdicción Consultiva

Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request

use of force exceptions

three and a half minus one exceptions

- Authorization by the Security Council

- self defense

measures against enemy states

- humanitarian intervention

Self Defense

article 51 UN charter

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

armed attack

UN General Assembly has defined "aggression" in GA Res 3314 (1974)

✘ (a) The invasion or attack by the armed forces of a State of the territory of another State, ...

✘ (b) Bombardment by the armed forces of a State against the territory of another State ...

✘ (c) The blockade of the ports or coasts of a State by the armed forces of another State

Caroline Formula

self defense must be:

✘ instant

✘overwhelming

✘leaving no choice of means

✘no moment for deliberation

humanitarian intervention

Responsibility to protect

General Assembly

Article 9 UN Charter

all members of the UN

each member no more than 5 representatives

- may discuss any questions or any matters within the scope of the present Charter

- , may make recommendations to the Members of the United Nations or to the Security Council

General Assembly voting

Article 18 and 19 UN Charter

each member has 1 vote

decisions on important questions shall be made by a two-thirds majority of the members present and voting

member which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly

Secretary General

article 98 and 99 of UN Charter

act in that capacity in all meetings of General Assembly and Security Council

attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

might settle international conflicts based on moral authority

good offices

organization and peacekeeping