international law final

L7-11

Framework of IHRL

• International, regional and national frameworks, UN Charter as main source

• States have obligations, not only negative (protection from HR abuses) but also to take positive action to enable enjoyment of basic HR

• State’s level as the first responsibility, respect for HR requires rule of law at national & international levels

  • only after ALL domestic legal proceedings have failed can international remedies be claimed

ECtHR

• Jurisdiction settled by the ECHR (1950)

• Direct access of individuals

IACtHR

• Organ of the Organization of American States (1979)

• American Convention on HR (1969) created 2 organs: Commission and Court, Commission filters for the Court, rules on admissibility of the claim

  • individuals can only lodge a complaint w/ Commission

• Acceptance of contentious jurisdiction necessary

African Court on Human and Peoples’ Rights

• African Charter on Human and Peoples’ Rights (1981)

“universal” access to HR remedy?

OHCHR, Human Rights Council (A/RES/2006, replaced Commission on Human Rights) + treaty based bodies (HRComm, CERD, CAT, CEDAW)
→ no appeal for treaty committees, HRComm views their decisions as final (bc obligations under ICCPR, good faith)

UPR

Human rights council, only universal international review of HR in all States of the world, every 4 years

2 ways States can exercise their sovereignty (authority)

1. State territory: supreme authority BUT 3 exceptions: personal jurisdiction (authority over nationals abroad, e.g. DP), diplomatic immunities & universal jurisdiction (for serious crimes: e.g. piracy, war crimes)

2. Outside of domestic jurisdiction: leases and servitudes

   1. Leases: transfer of sovereignty over a territory of one state to another, e.g. Guantanamo Bay Cuba to US - 2004 Rasul v. Bush established leased territories are subject to full US jurisdiction including all rights - habeas corpus

   2. Servitude: limitation on territory, e.g. right to use ports or of passage

5 maritime zones (established by UNCLOS 1982)

1. Baseline: line where land meets sea

2. Territorial waters: FULL SOVEREIGNTY 12 miles off baseline, must grant right of innocent passage for vessels if the passage is direct, continuous, rapid, and does not lay port

   1. jurisdiction on board of the flag State (but ambiguous)

3. Contiguous Zone: 12-24 miles, protects full sovereign waters as a buffer zone, a sovereign territory where State can prevent infringement of security/laws by sending boats back for example

4. Exclusive Economic Zone: encompasses contiguous zone, until 200 mi, sovereign rights to the water column and continental shelf (for laws, exploration, exploitation of resources)

   1. other States can request concessions to fish, navigate, or lie pipelines

   2. 200 mi can be extended by treaty until max 350 - ONLY for continental shelf, not water column

5. High Sea: open to all States, no sovereignty, every state has freedom of navigation, can lay cables and pipelines, conduct research, fish

   1. on a ship - rights/obligations of flag country apply

   2. seabed (“the area”) = common heritage of mankind, no one can claim or exercise sovereignty - only International Seabed Authority can grant limited licenses

Antarctic

Argentina, Chile, Australia, NZ, France, Norway & UK 1959 created Antarctic Treaty, suspends all territorial claims, military/mining is prohibited, only scientific purposes, 54 Parties but enforced on all states - framed as custom

Airspace

National Airspace: 100 km above land, above land & territorial sea, subject to exclusive sovereignty of the State, foreign airplanes can only use airspace w/ consent of the State (Chicago Convention - on International Civil Aviation, regulates commercial fights)

General principles of Space law

Regulated by 1967 OST

• Prohibition of national appropriation - art. 2 OST (common heritage of mankind) but jurisdiction over objects registered w/ national authority launched into outer space & personnel

• Space activities for peaceful purposes, prohibition of use of force (art 4)

  • Prohibition of weapons of mass destruction & demilitarization of moon and other celestial bodies

  • But technically non mass destruction weapons could be installed, space could be militarized BUT custom of demilitarized outer space (US Space Force is violating)

3 main objectives of VCDR (1961) and VCCR (1963)

Codifies custom (diplomatic law stretches back to 13 ce, most traditional domain, undeniable int’l custom)

1. Regulation of diplomatic intercourse to promote the state’s interest

2. Offers service to its citizens abroad

3. Protects diplomatic staff from arbitrary treatment, ensures performance of diplomatic relations under principles of representation and efficiency

Diplomatic immunities (negative, exemption from jurisdiction)

• Inviolability of the premises of the mission: agents of receiving State can’t enter them w/o consent, can’t search any property (documents, correspondence, diplomatic bag, private residences), receiving State should protect premises from intrusion or damage (art 22)

• Personal inviolability: cannot be arrested or detained, receiving State should prevent attacks on person, freedom or dignity (art 29)

• Immunity from jurisdiction: full criminal immunity, partial civill/administrative immunity - only possibility is persona non grata

Diplomatic privileges (positive, rights, advantages)

Exemptions from personal services, customs inspections, but must respect laws and regulations of the receiving State

Case Concerning US Diplomatic and Consular Staff in Tehran (1980)

• US staff held hostage from nov 1979 to jan 1981, ended w/ signing of Algiers Accords

• Order of Provisional Measures (1979) - declared Iran must restore US embassy and release hostages, emphasized cardinal importance of maintenance of good relations between States, fundamental prerequisite is inviolability of diplomatic envoys

sources of int’l economic law

standard + judicial decisions from WTO, CJEU, ICSID - but FRAGMENTED because of the absence of a responsible int’l court, conflicting norms, non-generalizable nature of legal precedents (no precedent, awards are for a specific case)

subjects of IEL

States, int’l economic organizations (some have norm making capacity: WTO, IMF, also indirect norm making by providing forum for negotiation/conclusion of treaties), physical and legal persons
→ NGOs are PARTICIPANTS (not subjects, they have no obligations/rights but can indirectly contribute)

IMF vs WB

IMF: targets economic stability and global growth, WB: funds development projects

IMF voting power

unequal, just like the possible receivable financial support, derives from the State’s economic size under the quota system

→ Custom: Pres is European

purposes of the IMF

Art 1 IMF Articles of Agreement - to promote int’l monetary cooperation, to facilitate growth of int’l trade, to promote exchange stability, to establish a multilateral system of payments & to make resources of IMF (temporarilY) available to MS

IMF functions

IMF is a “loaner of last resort” and loans must be repaid (financial support) also monitors MS & gives recs to economic policies (regulatory support) = surveillance allows for stable exchange rates

WB Group 5 legal entities

1. International Bank of Reconstruction and Development (IBRD): promotes reconstruction and foreign investment, funds dvp projects through loans (for middle-income countries)

2. International Development Association (IDA): assists the world’s poorest countries

   1. together, IBRD & IDA = WB

3. International Finance Corporation (IFC)

4. Multilateral Investment Guarantee Agency (MIGA)

5. ICSID

What does WTO do

replaced the GATT in 1995, promotes int’l trade through reducing tariffs

Criterion for internationally wrongful act

ARSIWA Art 2: a) attributable to the State and b) a breach of the State’s international obligation

Art 30 ARSIWA

State responsible for int’ll wrongful act is under an obligation
a. to cease the act
b. to offer assurances & guarantees of non-repetition

Art 31 ARSIWA

1. responsible state must make full reparation for injury

2. injury includes any damage, material or moral, caused by the act

forms of reparation for int’ll wrongful act

art 34: Restitution (re-establish situation before), compensation (if restitution not possible) & satisfaction (apology for breach)

how to ensure implementation of a State’s int’l responsibility?

Although responsibility arises automatically, to start its implementation it must be invoked by an injured State → a) effective invocation, b) determination of responsible subject (e.g. IO vs State)
→ e.g. Serbia & Montenegro vs. a bunch of NATO States after bombing of Yugoslav territory in Legality of Use of Force cases (1999)

Circumstances excluding wrongfulness (Chpt V ARSIWA)

• Consent

• Self-defense

• Reprisals (countermeasures, ARSIWA art 22)

• Force majeure

• Distress

• Necessity

Force majeure vs distress vs necessity

Force majeure: involuntary or coerced conduct, unforeseen event beyond the control of State making it materially impossible to perform the obligation

Distress: voluntary conduct (but diminished choice), saving the LIVES OF INDIVIDUALS in the charge of a State official (e.g. ships violating maritime boundaries due to mechanical failure)

Necessity: voluntary conduct (but diminished choice), grave danger either to the essential interests of the State or of the int’l community as a whole (e.g. public emergency, existence of the State)