International Law Finals

Legal subjects

Entities recognised by law, hold rights and responsibilities

Natural persons

Individuals with legal rights and obligations

legal persons

Specific organisations

Codification

Process of writing norms into regulations

Legalism

Emphasise strict interpretations of regulations

Functions of law

Normative prescription, additive guidelines, conflict solving, instrumental function, establishment of institutions

Public (international) law

Law for relations between legal subjects not as equals

Private law

Law for relations between natural and legal persons

Constitutional law

Governs organisation of state institutions and distribution power of the state

Criminal Law

Define which behaviour counts as criminal and authorises punishment

Descriptive facts

Point at facts, true or false

Normative

Point at regulation, valid or invalid

Constitution

Supreme law, all state actions must be in line with constitution

Statute law

Written law, made by Parliament

Common law

Law that isnt made by parliament

Customary law

Written and unwritten law, developed from customs of community

Constitutional law

Tells you what your human rights are, how state is organised

Criminal law

How the state expects you to behave in society

Civil law

How you must behave in private relationships, rights and duties in relationship

Supreme Court of appeal

Appeal only, criminal civil and constitutional cases

Magistrates‘ court

Appeal, review, less serious civil and criminal cases

Hugo Grotius and the Law of the Seas (1585-1645)

Father of international law, developed principles for maritime law that impacts trade and navigation, foundation sea boundaries

Lotus Case (1927)

Collision Turkish and french ship, emphasised principle of state sovereignty, states have freedom of action unless explicitly restricted by international law

Wimbledon Cases (1923)

Highlighted states could voluntarily limit sovereignty by entering treaties

Positive law

Law made by people

Natural law

Ideal law, norms about good and bad

Treaties

Written agreement between states, governed by international law, multi and bi lateral

Vienna Convention on the Law of Treaties (VCLT)

Codifies rules around treaty-making, treaties must be entered into freely

Nuclear Non-Proliferation Treaty (NPT)

Prevents spread of nuclear weapons, collective commitment to global security

Territorial sovereignty

State has right to control and use natural resources within its territory without interference

Territorial integrity

States must respect each others territorial rights, protect shared resources from harm

Transboundary principle

States sharing water have duty to cooperate + exchange Info about shared water

No significant harm

States must ensure shared water doesnt cause harm to other states‘ access to or use of water

Priority in laws

1. Law from higher institution , 2. law abut a specific subject above general law, 3. later law above earlier law

International custom (art. 38 ICJ Statute)

Evolves from consistent state practices accepted as legally binding, crucial when treaties don’t exist

Paquete Habana (1900)

Supreme Court decision that fishing vessels shouldn’t be seized during wartime, international custom

International legal personality

Entities enjoying direct rights and obligations under international law

Montevideo Convention (1933) criteria

Permanent population, defined territory, effective government, capacity to engage in international relations

Declarative theory (recognition of statehood)

States declare that others are states

Constitutive theory (recognition of statehood)

States declare an entity to be equal

Intergovernmental international organisations

Always conversion int national legislation

Council of Europe (CoE)

Major human rights institution in Europe, European Social Charter (ESC), European Committee of Social Rights (ECSR)

Supranational International Organisations

Exceeding national sovereignty

United Nations

Promotes peace, security, human rights and development, Security Council, General Assembly

World Trade Organisation

Oversees international trade rules

European Union

Supranational Organisation, legal system supersedes national law for its member states

International Criminal Court (ICC)

Prosecutes individuals for serious crimes

NGOs

Operate as advocates, influence international law through lobbying and awareness campaigns

Multinational Corporations (MNCs)

Subject to international trade regulations, impact global policy through economic influence

International Court of Justice (ICJ)

Principal judicial body of UN, resolves disputes between states

European Court of Human Rights (ECHR)

Cases brought by individuals or states regarding violations on European convention on human rights, binds member states of CoE

International Criminal Court (ICC)

Prosecutes individuals for serious international crimes

Dualism

International and national law are separate, treaties need domestic implementation before applied

Monism

Internaitonal law can become part of domestic law automatically

Protection by the state

Social, obligation of the state to support citizens

Protection against the state

Classic, equality, freedom of speech

Rule of law

Principles of legality, independent and impartial judge (art. 6 ECHR), separation of power (art. 16 DDHC), respect for basic human rights

Universal Decleration of Human Rights (UDHR)

Adopted by UN general assembly, non-binding

International Convent on Civil and Political Rights (ICCPR)

Binding UN treaty, translates core civil and political rights into legal obligations

Charter of Fundamental Rights of the European Union (CFREU)

Functions as bill of right within EU, binds EU institutions and member states

Arbitration

Neutral 3rd party settles disputes between states, speedy, confidential

Adjudication (uniqueness of ICJ)

Court composed of independent judges, court where only states can bring disputes

Jurisdiction

States have to agree to jurisdiction, states can refer cases to ICJ

Admissibility of Adjudication

Case needs to be current, states exhausted all other options, nationality rule permits it

Universalism

People are free, government can restrict freedom by consent

Relativism

Definition of Freedom is defined by societal norms

1st generation of universal declaration of human rights

Enlightenment rights (art. 1-19), elementary civil liberties (art. 3-19)

2nd generation of universal declaration of human rights

Industrial Revolution rights, social political and economic equality (art.20-26)

3rd generation of universal declaration of human rights

Solidarity rights, communal and national solidarity (art.27-28)

Non-derogable rights

Freedom from torture, recognition before law, freedom of fault, freedom of culture and religion

What are human rights?

Universal, fundamental , individual, absolute

Physical integrity rights

Prohibition from genocide, freedom from torture, prohibition of human trafficking

Civil and political rights

Freedom of expression, assembly and association, freedom of religion, freedom from arbitrary arrest, right to fair trial

Economic and social rights

Labour rights, social security, cultural rights

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Focus on political and civil rights, individuals can institute proceedings

American Convention on Human Rights (ACHR)

Focus on political and civil rights, individuals can petition commission, mainly cases of mistreatment

African Charter on Human and People‘s Rights (ACHPR)

Looks at economic, socia, cultural group and peoples rights

Republican Liberalism - Moravcisk

International commitments as way to lock in particular policy in face of uncertainty, institutions as way which winners commit to a particular policy, prevents backsliding

jus ad bellum

the right to war

jus in bello

justice during the war

jus post bellum

justice after war

medieval islamic traditions

world as constant struggle between believers and infidels, distinction between individuals and states

medieval christian traditions

strong pacifist strands, Augustine: only aggressive war is forbidden, Acquinas: war is similar to law enforcement

just war theory

how war is to be regulated, when the war is just

Auctoritas (JWT)

war must be initiated by legitimate authority

Personae (JWT)

who may fight and be targeted matters

Res (JWT)

there needs to be a material thing that is being fought over

Justa Causa (JWT)

there must be a just cause

Animus (JWT)

the right intention for war

UN Charter article 2(4)

prohibits use of force, targets actual use of force and threats

limitation article 2(4)

doesn’t regulate intra-state conflict

when is war possible?

when UNSC mandates it, self-defence

UN SC art. 42

closest to international law enforcement, requires UNSC approval, UN peacekeeping

Self-Defence (art. 51)

self defence as time buying measure until UNSC establishes peace, actions must be reported to SC

Caroline Rule

less strict than art. 51, two criteria: necessity and proportionality

humanitarian intervention

most controversial areas of jus ad bellum, seen as acceptable if happening in situations where there’s longstanding and egregious violation of human rights

Lieber Code (civil war)

first modern attempt to write down battlefield rules systematically

International Humanitarian Law (IHL)

protects people and objects, applies mainly to thee international armed conflict

Principle of Humanity

Martens clause, if there’s no law, morality and ethics should guide you, prohibition of unnecessary suffering and injury

Principle of Distinction

distinction between combatants and non-combatants, rejects cruelty as a method in war