Term
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Definition
a body of rules that nations consider to be binding in their mutual relations
- "persons" with standing (int. orgs, nations, NGOs, corps and individuals
- each can sue others in int'l law, at World Court, or at ICJ
- only nation-states can sue each other, so individuals must get govt to represent them
- 2 types of ICJ cases
-- contentious cases (cases against someone)
-- advisory proceedings |
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Term
| Private International Law |
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Definition
a body of substantive law that a nation applies to private transactions that involve two different states (e.g. breach of contract btwn ppl from 2 dif countries)
- states NOT required to defend interests of their citizens
- which country's laws do you use? (usually goes to a 3rd neutral country) |
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Term
| Does International Law have teeth? |
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Definition
-no enforcement mechanism other than will of States
- observance is in each State's interest to avoid chaos
- bigger/stronger military = less impact int'l law can have on you
- some argue it is effective bc you are held responsible for the outcome of your actions |
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Term
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Definition
1500's -- Father of International Law
wrote "The Rights of War and Peace"
(it was a cry for international justice) |
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Term
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Definition
basis of old international system.
- challenged the control of the church (God's law)
- consisted of:
--Natural law: immutable norms inherent in any ordered system: (life, liberty, competition)
--Positive law: man-made law based on "consent"
- No int'l org was contemplated
-enforcement would occur through mutual cooperation |
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Term
| Westphalian Tradition (Treaty of Westphalia, 1648) |
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Definition
- formal establishment of the nation-state system
- enshrined concepts of "state sovereignty" and "territorial integrity" in int'l relations
--> states have exclusive authority w/in their borders |
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Term
| Concert of Europe (1815-1878) |
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Definition
- european powers met to settle problems
-shift from bilateral to multilateral diplomacy
- introduced concepts of collective action and special status for "group powers" |
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Term
| The Hague Conferences (1899 &1907) |
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Definition
-created 1st int'l legal mechanisms
-->convention for the Pacific Settlement of Disputes
--> Permanent Court of Arbitration
--> Commissions of inquiry to handle int'l claims
- Established principle of "universality"
--> by including non-euro states (china, japan, latin america) for the first time |
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Term
| League of Nations Covenant's 2 Basic Principles |
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Definition
1. member states agreed to respect the "territorial integrity and political independence" of states
2. collective security: aggression by one state should be countered by all members w/ economic sanctions and force if necessary |
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Term
| Structure of the League of Nations |
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Definition
1. Council
-- consisted of the great powers --> settler of disputes/enforcer of sanctions
2. Assembly
-- based on "universality" of membership |
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Term
| Why the League of Nations failed |
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Definition
1. Failure of Collective Security outside of Europe
-- Japan's invasions of Manchuria 1931
-- Italy's invasion of Ethiopia 1935
2. US refusal to join the League due to "isolationism" |
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Term
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Definition
| ratified by the US in 1945 |
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Term
| Sources of International Law |
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Definition
1. International Custom
2. International Conventions or Treaties
3. General Principles
4. Judicial Decisions
5. Scholarly Writings
6. UN Resolutions |
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Term
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Definition
- an established state practice accepted by many nations
- custom can be regional or universal
- requires 4 elements to be established |
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Term
| Four elements to establish a customary international law |
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Definition
1. duration or passage of time
2. substantial uniformity or consistency of usage by states
3. generality of the practice, or degree of abstention
4. opinio juris: international recognition that the particular custom is binding (most important)
-- see North Sea Continental Shelf case |
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Term
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Definition
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Term
| North Sea Continental Shelf Case |
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Definition
1969
Germany vs Denmark
German vs the Netherlands |
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Term
| International Conventions and Treaties |
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Definition
- an international written agreement of rights and obligations concluded between states and governed by int'l law
e.g. UN Law of the Sea Treaty
e.g. OAS Charter
**a treaty may bind nonparties as a matter of CIL if it codifies the general practice of many nations |
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Term
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Definition
-principles of nat'l law that are generally applied by many nations
- serve as stopgaps for judges where treaties/CIL fail
e.g. equity, good faith, judicial independence |
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Term
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Definition
- int'l tribunal looks to nat'l court decisions
-->decisions from one country can't create/modify int'l law
- Nat'l courts look to a foreign court's decision |
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Term
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Definition
- writings memorialize historical and contemporary developments and trends in state practice
- courts usually look to the most recognized publicists, who are perceived to be neutral, to avoid bias in the authors' perspectives |
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Term
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Definition
- General Assembly resolutions: recommendations having no legally binding force for member states
- Security Council resolutions: reactions to violations of existing int'l law principles |
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Term
| Definitions of Statehood (Int'l law and states) |
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Definition
| - a "person" of int'l law that enjoys special rights and obligations in int'l relations |
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Term
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Definition
(1933 Montevideo Convention)
1. A permanent population
2. A defined territory
3. A government
4. A capacity to enter into relations with other states |
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Term
| Element of statehood: permanent population |
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Definition
- can be small and transient
- an express grant of nationality not required |
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Term
| Element of statehood: a defined territory |
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Definition
| - the territory need not be fixed by definite boundaries (e.g. the US during the 1800's) |
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Term
| Element of statehood: an effective government |
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Definition
-civil authorities must be able to assert control over the population/territory without foreign assistance
e.g. china, north/south korea, somalia |
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Term
| element of statehood: capacity to enter into foreign relations |
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Definition
- the most important criterion for statehood
- only the "national" govt has capacity to engage in foreign relations
e.g. Massachusetts Burma Law |
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Term
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Definition
| One State's willingness to establish official relations with another State or govt |
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Term
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Definition
1. the decision to recognize another "State"
- recognized state fulfills criteria for statehood (de facto)
- states recognize "equality" of int'l legal personality of another State (de jure)
**note: recog. by other states plays no role in whether or not an entity is, in fact, a State
2. Decision to recognize the new govt of another State (China v Taiwan, Taliban)
3. decision to recognize a condition of belligerency or rebellion in another State
- third-party State must remain "neutral" in a situation of billigerency/civil war |
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Term
| Recognition: The "Duty to Remain Neutral" includes... |
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Definition
1. not taking sides or assisting either party to a conflict
2. not allowing its territory to be used as a base for hostilities by either side to a conflict
3. declaring a change in status, such as when a State decides to side with one side or the other
4. acquiescing to restrictiosn imposed by the parties (e.g. Switzerland during WWII)
5. accepting responsibility under Int'l Law for any violation of its duty of neutrality |
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Term
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Definition
- The UN does not recognize State or govts
-->admission into the US does not constitute recognition
- EU recognition requirements:
1.respect for UN Charter and CSCE Charter
2. guarantee human rights protections for minorities
3. respect for inviolability of frontiers
4. acceptance of int'l commitments regarding disarmament and nuclear nonproliferation
5. must commit to arbitration of all disputes regarding succession and regional issues |
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Term
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Definition
| one State takes over the territory or govt of another State, which ceases to exist |
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Term
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Definition
1. Conquest (Iraq's invasion of Kuwait 1990)
2. Merger (East & West Germany 1990)
3. Occupation
->US invasion of Iraq (supposedly temporary)
->Turkish occupation of Northern Cyprus (30 yrs)
4. Independence and Partition (India/Pakistan 1947) |
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Term
Effects of Succession on Successor State:
Treaty Obligations of extinct State |
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Definition
1. Bilateral treaty obligations: no general rule
-> political treaties (generally cease to exist unless a merger) e.g. alliances, neutrality or trade treaties
2. Multilateral treaty obligations: survive succession if rooted in customary int'l law (e.g. humans rights treaty) |
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Term
Effects of Succession on Successor State:
Property & Debt Obligations of Succeeded State |
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Definition
Rule: property and debts of the extinct State become the property and debts of the successor State (unless obligations violate the public policy of the successor State. e.g. debts for purchase of ivory)
Treaty: 1983 Vienna Convention on Succession of States in Respect of Property, Archives, and Debts
-> succession does not extinguish obligations owed by former State to public or private creditors |
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Term
Effects of Succession on Successor State:
Citizens and the Successor State |
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Definition
Rule: when a State ceases to exist, so does the citizenship that it has previously conferred on its inhabitants
Doctrine of Habitual Residence: The Successor State confers its citizenship on those who were citizens of the succeeded State
-> the Successor State may not force its citizenship on individuals, esp. within a subjugated/occupied State (e.g. US in Iraw, Israel in the "Occupied Territories" |
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Term
Effects of Succession on Successor State:
Succession of Governments |
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Definition
Rule: a new govt may not claim a "clean slate"
-> a govt is not an international "person" |
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Term
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Definition
| the break-up of a State to achieve independence |
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Term
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Definition
Rule: States that have seceded from others enjoy a "clean slate" except for certain treaties that embody CIL
-Self-Determination |
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Term
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Definition
Rule: States that have seceded from others enjoy a "clean slate" except for certain treaties that embody CIL
-Self-Determination |
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Term
| Self-Determination (definition) |
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Definition
The right of an indigenous population to choose self-governace or some form of autonomy
e.g. decolonization in Africa (1960's), Soviet fall (1990) |
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Term
| State Responsibility (Definition and Rule) |
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Definition
Definition: the failure to observe a norm of State practice or a treaty obligation renders the State responsible under Int'l Law for its wrongful act or omission
Rule: when a State commits a wrongful act against another State, it is required to make reparations for that harm |
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Term
| 3 elements triggering State Responsibility |
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Definition
1. the existence of a legal obligation under Intl. Law
2. an act or omission that violates that obligation
3. Loss or damage caused by the breach of the obligation |
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Term
| State Responsibility: Standard of Proof |
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Definition
Strict Liability
e.g. 1949 Corfu Channel Case
e.g. the Rainbow Warrior Affair |
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Term
| Sovereign Immunity (Definition and Rules) |
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Definition
Def: immunity from suit enjoyed by States and certain int'l orgs in the courts of other States
Rule: all states are entitled to equal treatment
Rule: although a State may incur State responsibility for certain conduct, its status as a sovereign entity MAY shield it from having to respond to suits in the courts of other States unless sovereign immunity is waived by consent |
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Term
| Scope of sovereign immunity |
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Definition
| heads of State, govt agencies, and State officials that are conducting state business |
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Term
| 2 types of Sovereign Immunity |
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Definition
1. Absolute: total immunity from suit in other States
-> Heads of State not subject to any civil or criminal prosecution during and after leaving office (exceptions: Noriega (1989); Pinochet)
2. Restrictive: an entity owned or operated by a commercial or private capacity is not immune
a) is the entity a "State"?
b) is the entity's conduct private or commercial? |
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Term
| Sovereign Immunity: Immunity Under International Law |
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Definition
(see Case Concerning the Arrest Warrant of April 11, 2000; Congo v. Belgium)
- there is no criminal immunity in one's own country
- a State may waive immunity before a foreign court
-immunity ceases after a person ceases to hold office
-> covers only acts committed while in office
-> covers acts committed during the period in office in a private capacity
-official may be subject to criminal proceedings before int'l criminal courts where they have jurisdiction |
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Term
Sovereign Immunity:
Foreign Sovereign Immunities Act (1976) |
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Definition
-Exclusive means of suing foreign sovereigns in the US
-Basic Presumption: foreign officials are immune in US
-Exceptions to FSIA:
1. no commercial activities: foreign sovereigns are engaged in private, commercial activity
2. real property: if foreigner owns property in the US, he is stripped of immunity
3. tort exception: if foreign official commits tort on US soil, victim can sue in US court
4. waiver: treaty, contract, appearance
5. "Bad Boys" exception: waiver for official from blacklisted States |
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Term
| The United Nations (Definition) |
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Definition
- a "public" int'l org
- UN does not have "supranational" power
- UN based on the principle of "sovereign equality'
- UN based on the principle of "nonintervention"
- UN possesses legal capacity in Int'l Law
-> capacity to sue or bring a claim in court (e.g. Reparations for Injuries Case)
->"In the service of the UN": the UN can only bring a claim if the injury of one of its agents was in the service of the UN |
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Term
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Definition
| to maintain int'l peace and security through the means of collective security |
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Term
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Definition
1. Security Council
2. General Assembly
3. Economic and Social Council
4. Secretariat
5. ICJ
6. Trusteeship Council |
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Term
| Security Council (purpose, members, veto, action) |
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Definition
-part of UN
Purpose: to maintain int'l peace & security and to act on behalf of ALL member States (art. 24)
-Consists of 15 States
-> permanent members: US, UK, France, China, Russia
->Nonpermanent members: 10 rotating states
-Veto: any permanent member can veto a SC decision
- SC action require unanimity among the 5 permanent members and at least 4 nonpermanent members |
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Term
| Security Council (Chapters VI and VII) |
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Definition
Chapter VI: peaceful settlement of disputes
Chapter VII: authorizes enforcement measures (sanctions and force) to counter violations of the Charter |
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Term
| 3 Security Council Resolutions between 1945-1990 |
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Definition
1. 1950: condemned N Korean invasion of Republic of South Korea. after debate, SC published a resolution to recommend member-state military assistance to the Republic of Korea
2. 1960: told Belgium to withdraw its troops fromt the Republic of Congo. authorized secretary general to take necessary steps to provide the govt of congo with military assistance
3. 1966: SC nervous that Southern Rhodesia would get a big supply of oil bc a tanker had arrived at Beira and another was coming. SC told all states to divert the vessels believed to be carrying oil to S. Rhodesia. the resolution also told the UK govt to prevent, by force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for S. Rhodesia |
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Term
| General Assembly (general facts) |
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Definition
| organ of the UN - 192 members (one member/one vote) - forum for exchange of ideas (debating chamber) - arts. 10-17 of Charter permit GA to "discuss, consider, initiate studies and make recommendations" to the SC |
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Term
| General Assembly (Functions) |
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Definition
- admitting new members
- electing the nonmembers of the SC, ECOSOC & the Trusteeship Council
- appointing judges to the ICJ
- appointing the Secretary-General on the recommendation of the SC |
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Term
| General Assembly (cases and resolutions) |
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Definition
- "Uniting for Peace" Resolution (1950)
-> ensures a prompt GA response when SC fails to act
-"Certain Expenses of the UN" case (1962)
-> ICJ Advisory Opinion questioning whether the GA can respond when the SC fails to act
- GA Resolutions: articulate new principles and norms |
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Term
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Definition
-54 rotating members
- Purpose: to promote observance of human rights and the general welfare of the individual
- conducts studies and issues reports on economic, social, cultural, educational and health matters |
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Term
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Definition
-organ of the UN
- Purpose: the administration of territories incapable of self-govt (African colonies, Pac. Islands)
-> TC suspended after Palau became independent in 1994
-> TC considers a new role today (failed states, common areas) |
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Term
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Definition
-organ of UN
- Purpose: administers all UN programs
-Secretary-General: appointed by the GA on SC's recommendation
-> cannot be a nat'l of a Permanent Member
-SG engages in "preventative diplomacy"
-SG may being to attention of SC any matter which may threaten int'l peace and security (art. 99) |
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Term
| Int'l Court of Justice (ICJ) (purpose, jurisdiction, UN Charter) |
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Definition
-Purpose: to resolve disputes and give advisory opinions that arise under Int'l Law ("to substitute the courtroom for the battlefield")
-Noncompulsory jurisdiction: States must consent
-UN Charter (Arts. 92-96)
a) all UN members are automatically parties to the Statute of the ICJ (art 93.1)
b) members must comply with ICJ decision in which it consents to be a party (art. 94.1)
c) SC may undertake enforcement measures if a State fails to comply with ICJ decision (e.g. South African control over Namibia 1971) |
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Term
| International Court of Justice (judges) |
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Definition
15 judges
-serve a 9 year term (5 elected every 3 years)
- judges must be "independent"
- only the ICJ can vote to dismiss a judge |
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Term
| International Court of Justice (functions) |
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Definition
- a trial court, not an appellate court
- no Judicial Review of SC action (sovereignty)
- no bailiff or prison system to detain defendants |
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Term
| International Court of Justice (optional clause) |
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Definition
("Noncompulsory" Jurisdiction)
- States must consent to ICJ jurisdiction
- States may consent at any time
- A "national declaration" to accept ICJ's jurisdiction:
a) unconditionally
b) for a limited time, or
c) on the condition of "reciprocity" (e.g. Norwegian Loans case) |
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Term
| International Court of Justice ("stare decisis" and advisory opinions) |
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Definition
- No "stare decisis": decisions legally bind only the immediate parties to a dispute
- Advisory opinions: cases in which no State is a party
->State consent not required for an advisory opinion
->The SC, GA, or other specialized UN agency may request an advisory opinion |
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Term
| United States Position on ICJ |
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Definition
- accepted ICJ's jurisdiction in 1946
- any withdrawal by US requires six months notice
- US Reservations to ICJ jurisdiction:
a) cases entrusted to other tribunal via treaty provision
b) cases w/in domestic jurisdiction of US as determined by the US
c) cases arises under a multilateral treaty, unless all parties to the particular treaty "affected by the dispute" were also parties to the dispute and all agreed to the submission of the dispute to the ICJ
**US withdrew its general acceptance of the ICJ jurisdiction in 1985 (Nicaragua case) |
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Term
| ICJ - Nicaragua v US 1985-6 |
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Definition
| Case concerning the military and paramilitary activities in and against Nicaragua |
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Term
| Individuals (history/background) |
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Definition
- 19th century: individuals had rights and obligations arising only under nat'l law
-Post-WWII period: individuals had rights and obligations arising under Int'l Law (e.g. Nuremburg & Tokyo War Crimes Tribunals) |
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Term
| Individuals (Capacity to Pursue a Claim) |
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Definition
Rule: only states or int'l orgs have the capacity to pursue claims in int'l proceeding
-Home State may pursue a claim on behalf of an individual via diplomacy or by filing suit in an int'l tribunal (e.g. US Secretary of State on behalf of US citizens) |
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Term
| Individuals - Nationality (definition, rules, acquiring) |
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Definition
Definition: a legal bond, having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties
-Rule: everyone has a right to a nationality
-Acquiring Nationality:
1. Parents (j ussang uinis or "blood rule") (passive)
2. Birth (j us soli or "soil rule") (passive)
3. Naturalization (active) e.g. Nottebohm Case (Liechtenstein v. Guatemala) |
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Term
| Individuals (dual nationality) |
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Definition
Definition: an individual possessing the citizenship of more than one country
- Types of Dual Nationalities
1. Person born in one country with parents from another
2. Acquiring new nationality without forfeiting original
-Dual nationals may be subject to conflicting obligations including double taxation and military service
-US does not favor dual nationality, but allows it
- States don't have to recognize another State's nationality |
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Term
| Individuals - Refugees (Definition and nonrefoulment) |
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Definition
Definition: a person fearing persecution due to race, religion, nationality, social group or political opinion who is 1. outside the home country, and 2. unwilling to avail themselves to the protection of that State or return to it
- Nonrefoulement (duty of nonreturn): States can't forcibly return refugees to home State if their life is in danger |
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Term
| Individuals - US position on Refugees |
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Definition
under then 1967 UN Protocol to the Refugee Convention (1951), asylum seekers must arrive in the territorial waters of the US and request asylum to avoid return
e.g. Sale v. Haitain Centers Council, Inc. 1993 |
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Term
| Individuals - Statelessness |
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Definition
-individuals who lack the legal bond of nationality with any State
- 1954 Convention Relating to the Status of Stateless Persons
- How? Original nationality stripped by the State bc they fled war or persecution (Poland, Cuba, Vietnam) |
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Term
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Definition
Definition: a business entity created for the purpose of limiting liability beyond that which is available to a person
- corporations possess nationality (like persons)
- Home State Rule: State of incorporation has capacity to represent corporation in int'l proceedings (e.g. Barcelona Traction, Light & Power case 1970) |
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Term
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Definition
| the exclusive right of a State to govern the affairs of its citizens and to be free from external control -> each State should render and receive equality and respect |
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Term
| Jurisdiction - definition |
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Definition
| the legal capacity of a State to make, adjudicate and enforce the law when there are violations within its boundaries |
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Term
| Extraterritorial Jurisdiction - definition |
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Definition
1. the State's legal capacity to prohibit or regulate conduct beyond its national borders
2. a State's illegal exercise of sovereign power beyond internationally recognized limits
e.g. spying (not prohibited by int'l law) |
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Term
| Passive Personality Principle |
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Definition
a jurisdiction principle.
jurisdiction based on the nationality of the victim when the crime occurs outside the prosecuting State's territory
-results in the potential prosecution of anyone, anywhere in the world, who harms citizens of the prosecuting state
- the least applied jurisdictional principle (e.g. Lockerbie bombing) |
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Term
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Definition
| a jurisdictional prinicple conduct must threaten the security, territorial integrity or political independence of the State - permits prosecution of citizens and non-citizens outsides the state -there need not be any actual "effect" within the State - most States do not use this basis of jurisdiction unless accompanied by another State |
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Term
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Definition
the most common jurisdictional principle
jurisdiction determined based on the location of the Defendant's actoin
-conduct starts and finishes with State X
-Effects Doctrine: conduct starts outside State X and has effects within State X (e.g. The S.S. Lotus case 1927) |
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Term
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Definition
a jurisdictional principle.
a State may regulate the conduct of its citizens, even if the conduct occurs outside the State (e.g. traveling Cuba) |
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Term
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Definition
a jurisdictional principle.
jurisdiction based solely on the nature of the crime, covering those crimes considered to be committed against all nations
-Recognized crimes: genocide, torture, piracy, slavery, war crimes
e.g. Israel v. Eichmann (1961)
US v Osama Bin Laden? |
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Term
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Definition
a jurisdictional principle.
jurisdiction based solely on the nature of the crime, covering those crimes considered to be committed against all nations
-Recognized crimes: genocide, torture, piracy, slavery, war crimes
e.g. Israel v. Eichmann (1961)
US v Osama Bin Laden? |
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Term
| Extraterritorial Jurisdiction - Yugoslavia Tribunal |
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Definition
ICTY - 1993
-established by the UN Security Council (res 827)
-located in the Hague
-to try persons responsible for serious violations of humanitarian law committed in the FRY since 1991
-crimes of murder, rape, torture & ethnic cleansing
-death penalty not allowed |
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Term
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Definition
ethnic cleansing in the 1990s
arrested & extradited to the Hague in 2001 |
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Term
| Extraterritorial Jurisdiction - Rwanda Tribunal |
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Definition
ICTR 1994
-located in Arusha, Tanzania
- to try persons responsible for genocide, crimes against humanity and war crimes committed against the Tutsi minority by the ruling Hutu majority in 1994
-genocide,rape, torture & forced expulsion
-pace of trials has been slow
-death penalty not allowed
-ICTR found Jean-Paul Akayesa, the former mayor of a small town in Rwanda, guilty of nine counts of genocide
-Sept 4th 1998: Jean Kambanda convicted of genocide |
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Term
| Extraterritorial Jurisdiction: Exceptions to Jurisdiction under US Law |
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Definition
1. Political Question Doctrine - the judicial branch of govt should not resolve controversies that fall within the province of the political branches so govt (executive and legislative branches)
2. Act of State Doctrine
-avoids the judicial resolution of challenges to the conduct of foreign leaders or govts within their own territory
-Hickenlooper Amendment |
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Term
| Extraterritorial Jurisdiction: Extradition |
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Definition
Def- the process whereby one nation surrenders someone accused of a crime to another nation
rule: there is no duty to surrender an accused to another nation in the absense of an extradition treaty
-rule: extradition treaties should spell out extraditable offenses (murder, torture, kidnapping, rape, robbery, drug trafficking, piracy, money laundering, tax evasion
-Rule: Int'l Law prohibits one nation from using "irregular" alternatives to extradition
->"Clean Hands" doctrine: A State must come to Court with clean hands
->abducting a criminal defendant from another State (e.g. Alvarez Machain case)
->Carlos "the Jackal" (drugged and smuggled) |
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Term
| Extraterritorial Jurisdiction: Exceptions to Extradition |
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Definition
Valid reasons why States refuse to honor an extradition request:
1. Political Offense Exception: extradition can be denied when requested State classifies the crime as a political offense ("ambiguous")
2. Human Rights Exception: extradition can be denied where the laws of the requesting State are perceived to violate human rights (e.g. death penalty in the US) |
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