International law midterm

International law old definition

law that governs relations between states

"States" under international law, what 3 things must they have?

sovereign or nation-states

1 territory

2 population

3 government and the capacity to engage in diplomatic or foreign relations

modern definition of international law

law that deals with the conduct of states and of international organizations and with their relations inter se as well with some of their relations with persons, whether natural or juridical

or

a body of rules and principles, contained in various sources, including treaties and customs, which the subjects of international law have accepted as binding on them either in their relations with one another per se, or in those with other juristic or natural persons

who are the traditional subjects of international law?

states

who are other subjects of international law?

Intergovernmental international organizations and individual with a limited extent

what are some Intergovernmental international organization

United Nations, International Labor Organization and the Council of Europe

States v. international community subjects

States: individuals

International Community: states

Relations between states are ___

horizontal, meaning states are meant to be equal and on the same playing field

There is no ___ ____ to solve all problems

global governance

Range of states' freedom of action

states can determine their own internal set-up with their own constitution, leader, foreign policy

jus cogens

peremptory norms: certain fundamental, overriding principles of IR, from which NO derogation is ever permitted

What changed after WW1 (1914-1919)?

-treaties

-increased number of legal restrictions on the right to use force against other states and one's own people

-states bound by jus cogens

When was international law born?

cannot say exact date, but it grew in the 16th and 17th centuries

natural law

certain rights or values are inherent by virtue of human nature, and universally cognizable through human reason. Naturalists do not accept that states make the laws that bind them in their conduct with one another.

What are naturalists?

Naturalists do not accept that states make the laws that bind them in their conduct with one another.

Hugo Grotius (1583-1645)

Dutch scholar and diplomate known as the father of modern international law

Samuel Pufendorf (1632-1694)

German espoused the view that natural law was the source or basis of international law

Emmerich de Vattel (1714-1767)

The Law of Nations (1758) practical guide for diplomats

Richard Zouche (1590-1660)

one of the early positivists. Looked to state practice as the source of international law, seeking the basis of this law in the consent of states--its subjects

positivists

A legal positivist believes that the law's existence and content depend on social facts, such as legislative acts or judicial decisions, and not on its moral merits or demerits. In essence, a positivist argues that the law is what has been posited or created by a human authority, like a state, and that this "positive law" is separate from any external moral or philosophical standard

both naturalists and positivists found some suppor in ____ writings

Hugo Grotius'

____ gradually emerged as the dominant theory

positivism

Peace of Westphalia

the peace treaty that ended the Thirty Years' War in 1648 and established a treaty-based system or framework for peace and cooperation in Europe

Final Act of Congress of Vienna (1815)

formally ended the Napoleonic Wars. Set of rules for diplomatic protocol, condemned slave trade, freedom of movement on international rivers

League of Nations

1920- the covenant formed an integral part of the treaty of Versailles, which ended WWI

International law is not a ___, but a __

legal system, branch or part of our legal system

How do we know whether a given rule is international law?

-site to treaties, customary law, and general principles of law

3 sources of international law

treaties, customary law, and general principles of law

Evidence to say something is international law

judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

Is there a hierarchy for the primary sources of international law?

No

What does the practice of states mean?

widely followed and deemed by States to be obligatory as a matter of law

Opinio juris

obligatory as a matter of law

how do you determine if a law is widely followed?

research of other countries' law and judicial decisions

Conventional international law

international conventions (treaties) whether general or particular, establishing rules expressly recognized by the contesting states

___ can give rise to or be a source of customary international law

treaties (i.e Vienna Convention)

Which of the 3 types of international law is the least and most used?

Most-treaties

Least- general principles of law

States play a dual role in the law-making process with ____ and ___

legislatures and advocates or lobbyists

Where can you find secondary sources/evidence?

Relevant government pronouncements on the subject, national judicial decisions, debates and resolutions of international organizations, minutes and final acts of diplomatic conferences

synonyms for international conventions

treaties, covenant, protocols

who can conclude a treaty?

States & International organizations

Who signs/ratifies treaty?

States bound by the treaty

Pacta Sunt Servanda

agreements must be kept

What form does customary law take?

state papers, scholarly works, diplomatic correspondence etc

Examples of general princples of law

good faith, right to a fair trial, exhaustion of local remedies, impartiality of judges

examples of jus cogens

prohibition of torture, slavery, genocide, and racial discrimination

Examples of instruments which are not legally binding

declarations, resolutions of UN General Assembly

What are treaties?

they all denote a merger of the wills of two or more international subjects for the purpose of regulating their interests by international rules

Functions of treaties

-serve as the constitutions of international organizations

-they can be a source of general international law

-they are used to transfer territory

-to regulate commercial relations

-to settle disputes

-to protect human rights

-to guarantee investments

What is different about treaties in the US?

they require the advice and consent of the Senate before the US may become a party to it

Vienna Convention on the Law of Treaties

a treaty about treaties

entered into force in 1980 and ratified by many states

Bilateral treaties enter into force when ___

both states indicate their intention to be bound by the agreement as of a certain date

Multilateral treaties often contain provisions indicating ___

how many states have to accept the treaty before it will be in for force as between them

The consent of a state to be bound by a treaty may be expressed by ___

signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accessions, or by any other means if so agreed

What is ratification?

an act whereby a state, through its head of state, foreign minister, or duly authorized diplomatic agent declares that it considers itself bound by the treaty

signature is followed by ___

ratification

typical sequence of the conclusion of treaties in the US

1. negotiation of a treaty by the President or their representative

2. signature by the President or their representative

3. submittal of the treaty by the President of the Senate

4. the granting of advice and consent by the Senate

5. the President’s deposit of the instrument of ratification

Reservation

a 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

What are the 3 exceptions to reservations?

1. if the treaty prohibits reservations

2. if the treaty permits only certain types of reservations and the one being made is a different type

3. in general, if the reservation is compatible with the object and purpose of the treaty

when is a treaty invalid?

error of fact, fraud, corruption and duress, violation of jus cogent

How do insurgents come into being?

through struggle against the state to which they belong. They wither win and turn into states or are defeated and disappear

What article in the Montevideo Convention mentions the recognition of states?

1

declaratory theory of recognition (ipso facto)

other states determine if a state meets the requirements for statehood

constitutive theory of recognition

the state itself claims they are a state

Why did Bush recognize Kosovo as a state in a video and with American flags in the background?

Bush recognized Kosovo in that way to signal seriousness, legitimacy, and U.S. commitment while projecting strength and formality to the international community.

Who has the power to recognize foreign governments in the US and where does this power come from?

The President, Article 2 sections 1 and 2 of the Constitution which is the executive power clause and appointment’s clause

What are the rights of recognized governments in the US?

1. can bring a lawsuit in US Court

2. can claim sovereign immunity in US courts and to receive diplomatic protection to the same extent as other recognized governments

3. can have access to the state’s US bank deposits and other property

What are the 3 significances of recognizing states?

1. Political: the will of the recognizing states to initiate international interaction with the new state

2. legal: factual conditions me tot become an international subject

3. legal: it bars the recognizing state from altering its position. Creates ann estoppel

How has recognition changed?

1. 1930s, the new state must not contrvene some fundamental standards of the international community

2. western Europe and the dissolution of the USSA

3. Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”

Immunities of heads of states and government

entitles to person immunity when facing charges of international crimes before a domestic court

Universal Jurisdiction

the competence of a State to prosecute and punish the alleged perpetrators of certain offences, regardless of their location or the nationality of their perpetrators or victims

Charles Taylor

• Taylor was the first former African head of state to be tried and convicted by an international tribunal since Nuremberg.

• The Special Court for Sierra Leone (SCSL) indicted him for aiding and abetting war crimes and crimes against humanity during the Sierra Leone civil war (1991–2002).

Omar Al-Bashir

• Under Bashir’s rule, the Sudanese government and allied Janjaweed militias were accused of mass killings, rape, and displacement of civilians in Darfur (starting in 2003).

• The UN estimated around 300,000 deaths and millions displaced.

• Bashir’s indictment tested international law on whether a sitting president enjoys immunity.

• The ICC held that no immunity applies for genocide, crimes against humanity, or war crimes before an international court.

insurgets

a person who, for political purposes, engages in armed hostility against an established government.

Insurgent’s minimum requirement to become an international subject

1. rebels should prove that they have effective control over some part of the territory

2. civil commotion should reach a certain degree of intensity and duration

it is for ___ to appraise recognition of insurgency

states

examples of insurgents

hamas, Al Quaeda, Taliban

Belligerency

1) the status assumed by a nation that wages war against another nations and

2) the quality of being belligerent; the act or state of waging war

the conditions to meet for recognition of belligerency

Insurrection is widespread and protracted in time and 

rebels come to acquire stable control over part of the territory 

who can grant recognition of belligerency?

head of state or a bordering state

jus in bello

latin for “law in war” - ethical guidelines and regulations that apply to warring parties after a war has begun; International Humanitarian law (IHL)

Insurgents can enter into agreements with __

states

why are states reluctant to recognize insurgents as belligerents?

because they then gain rights

why would states recognize insurgents as belligerents?

could open up to agreements/negotiations

how do insurgents have a limited international capacity

1) they only have a few international rights and duties

2) they are only associated with a limited number of existing states

Sui Generis entities

more traditional than modern

1) have come to acquire a legal status on their account of specific historic circumstances

2) do not possess any distinct territory or, if they do use territory, this belongs to another entity

3) have a very limited international personality

international personality

the entities or legal persons that can have rights and obligations under international law

ICRC

International Committee of the Red Cross

promotes the drafting of multilateral humanitarian treaties on armed conflicts

why the emergence of modern international subjects?

to ward off a WWIII

International organizations are (4)

1) established by a treaty which serves as the “constitution” of the organization

2) composed of members that are states or international organizations

3) regulated by international law

3) endowed with a legal personality, and thus can engage in contracts, and can sue and be sued in national courts subject to certain immunities

Rights and duties of National Liberation Movements (NLM; modern subjects)

1) the right to self-determination

2) the rights and obligations deriving from general principles on the conduct of hostilities

3) the rights and obligations deriving from rules on treaty making

4) the right to claim respect for persons acting in official capacity and immunity from jurisdiction of states’ courts for acts performed in that capacity

modern law of individuals

individuals are holders of rights but also capable of infringing fundamental values