Term
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Definition
| If a rule is constantly being broken, the court does not consider that a rule established as customary law. For the rule to be conformed there must be rigorous conformity of the rule |
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Term
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Definition
| Language used in airlines by air traffic controllers |
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Term
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Definition
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Term
| Elements of Customary International Law |
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Definition
State Practices
Opinion Juris |
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Term
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Definition
In order to create a rule in customary international law, the law must be.....
Uniform (Fit for the Nation)
Extensive & Representative ( Represents the entire nation)
States house interest are specially affected
EX: North Sea Continental Shelf Cases |
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Term
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Definition
For opinion juris to be satisfied... the Subject element must be satisfied..
This is the belief that a practice is binding |
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Term
| How do you know what to do and/or how to act? |
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Definition
Procedures of.....
Enforcement
Observations
Principles of Justice |
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Term
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Definition
| Public agreements that are Binding to all parties that agree with full consent. Parties are able to take reservations on treaty as long as it does not terminate the orginal purpose of the treaty.Written law |
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Term
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Definition
Treaties
Customary Law
Soft Law
"General Principles" |
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Term
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Definition
| Soft laws are not legally binding, however they are universally understood by the state. Each states soft laws vary based on culture/society etc. |
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Term
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Definition
| Legally binding laws that are uniform and have consent of practice. Customary laws are binding on everyone and also carry subsidiary portions such as Jus Cogen laws |
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Term
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Definition
General principles of law recognized by civilized nations. This is under Article 38 of the VCLT.
IE Fairness & Justice
Universally accepted concepts |
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Term
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Definition
| States can bring claims to courts and consist of Self-determination, sovereignty, social construction, public acknowledgment, and continuance of statehood. |
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Term
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Definition
| Countries are able to form their own statehood and form alliances with those they please |
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Term
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Definition
There are four foundational forms of soft law...
1) Administrative decisions by international organizations
2) Codes of Conduct
3) Political commitment aka Gentlemen's Agreement
4) Guidlines |
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Term
| What are the pros and cons of Soft Law? |
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Definition
Cons of soft law
Soft law is not legally binding and tampers with the effectiveness of treaties and customs. Soft law also undermines stability and the rule of law
Pros of soft law consist of bridging the gap between treaties and customs while also increasing the efficiency of generating treaties and customs in specific areas. Soft law can also eliminate status quo bias |
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Term
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Definition
Three Narratives of interpretation...
Principles that have been maifested consented by states to be recognized as principles of international law.
Principles deriving from natural law, without reference to state consent
Principles arising from national legal systems |
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Term
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Definition
| Laws and rules that are binding between states/ countries through customs, treaties, soft law. Under International law their is no hierarchy. |
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Term
| How did states emerge in the 20th century? |
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Definition
| Decolonization------Secession------Dissolution----Merger---Peace Treaties! |
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Term
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Definition
| Law should be incorporated with morality. |
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Term
| Why would you bring a case to the ICJ? |
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Definition
Domestic courts may not recognized the decision of ICJ?
More objective
Outsourcing certain decisions |
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Term
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Definition
| parties agree to give up some authority in order to gain some aggregating authority |
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Term
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Definition
| Doesn't matter what international law says, the nations with the most power generally can override international law. Power can be exerted through |
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Term
| History of International Law |
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Definition
| European centric. .... The collapse of the Roman Empire lead to modern nation states which needed a way to be governed, thus international law was implemented to create regulation of these states. |
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Term
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Definition
| Notion of Sovereignty arouse from this and was a peace treaty that ended the Thirty Years war. |
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Term
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Definition
| Rather than one ruler there is a collective nation of people |
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Term
| Case Concerning the Territorial Dispute (Libya/Chad) (1994) |
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Definition
| Territorial dispute between Libya & Chad over strip of land. The decision was in favor of Chad and given by the ICJ that the treaty established the boundary of sovereignty |
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Term
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Definition
States are actors
Territorial
Legal arguments based on formal treaties
Effective control/Power Control
Stay tight to enjoy ! |
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Term
| What are the exceptions to Using force? |
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Definition
| United Nation approval or Self Defense |
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Term
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Definition
| No force allowed, through UN Charter |
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Term
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Definition
| The foundational treaty of the United Nations |
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Term
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Definition
New Zealand argued that the release of the two agents would undermine New Zealand judicial System because this was a crime under New Zealand law.
Ruling by UN -Security Council and the importance of State Non intervention under international law and states will be held accountable for violating this. There was judicial obstacles because it was dealing with state jurisdiction |
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Term
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Definition
Realism
Liberalism
Constructivism |
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Term
| Statute of the International Court of Justice Article 38 |
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Definition
| Under Article 38, the courts function in accordance to international law. This can be through international conventions, customs and general principles. In order to address these proceedings court must be assist with the most highly qualified publicists. This all must be done through non -prejudice power |
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Term
| Why are treaties preferred by the ICJ? |
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Definition
Clear content
Formal Consent
Familiar source for domestic actors |
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Term
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Definition
| The process of decision-making, communication or a mask for political power |
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Term
| Customary International Law |
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Definition
| Consists of State practice, & binding of all states |
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Term
| International Convention for Regulating Whales |
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Definition
| Signed in 1946 to provide proper conservation of whale stocks and thus make possible the orderly development of the whale industry. |
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Term
| Why did states sign the International Convention for Regulation of Whales? |
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Definition
The realist approach.... countries can enter into treaties when convenient, withdraw when not, and violate when not in their best interest. (Japan)
Liberalism (Institutionalism): International agreements are similar to contracts . And care created to solve problems of coordination, collaboration, or domestic politics. |
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Term
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Definition
| Treaties are intended to raise the political costs of non compliance |
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Term
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Definition
Loss of reputation as a reliable partner
Costly retaliation of other states
Depiction of a nation as untrustworthy |
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Term
| Vienna Convention on the Law of Treaties |
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Definition
| Reflect customary international law(practice) of treaty interpretation and can be applicable to states such as the US which are not a party |
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Term
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Definition
| A written form and governed by international law between states must be achieved |
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Term
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Definition
| Must fall in present scope of the agreements |
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Term
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Definition
Norway and Denmark dispute over area in greenland.
a reply of this nature given by the Minister of Foreign Affairs on behalf of his government...is binding |
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Term
| Nuclear Tests (Australia v. France), 1974 ICJ. |
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Definition
The states declaration holds the intentions to be legally binding and there is no need for response from the other party for it to take affect.
France was testing in ocean and leaving waist in the water. Favored with France because it fit a Unilateral agreement |
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Term
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Definition
Armed activities on territory on the congo
Statment can create legal obligations only if it is in clear and specific terms |
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Term
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Definition
Who can Participate in treaty regimes?
Every state possesses the power to conclude treaties? |
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Term
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Definition
| A treaty is void of its conclusion has ben procured by the treat or use of force in violation of the principles of International law embodied in the charter |
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Term
| Military v Economic Coercion |
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Definition
Military--- Occupying a nation
Economic---Cutting of NX/ or pressuring |
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Term
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Definition
| Treaty is invalid if at the time it violates a peremptory norm of general international law. Accepted and recogized by all states |
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Term
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Definition
| if a new norm is created the old norm is void |
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Term
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Definition
General Rule of interpretation
Treaty shall be interpreted in good faith in accordance with the ordinary meaning given in terms of the treaty
The context of the treaty must interpret with any agreement that was made.. Special meaning must be given to the word if the treaty so implies |
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Term
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Definition
Suplementary means of interpretation
Resources may be made in order to interpret the means of treaty
leaves the meaning ambigious or obscure
leaves obscurity |
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Term
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Definition
| Australia argues that Article VIII permits are an exception to the general prohibition on whaling, to be read narrowly and “to be determined on an objective,” i.e., not self-judging basis. |
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Term
| Can states Withdraw from a treaty? |
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Definition
| Most states provide the conditions under a state may withdraw or the treaty may be terminated |
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Term
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Definition
The termination of a treaty or withdraw of a party may take place on respect to...
conformity with provisions of the treaty
Consent of all parties |
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Term
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Definition
Denunciation of or withdraw from a treaty containing no provision regarding denunciation or withdraw
Pretty much, if the treaty says you cannot withdraw you cannot withdraw unless the parties orginally intended to add that feature,unless the treaty will self terminate. (Ie something about the polar ice caps)
No less than 12 months notice |
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Term
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Definition
| Terminating the treaty or acting in such a way that eliminates the point of the treaty |
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Term
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Definition
A material breach of a bilateral treaty by operation of terminating or acting in a way that defeats the purpose of the treaty .... leads to suspension of all or part or complete termination of the treaty
Breach of a Unilateral by decision of all parties can lead to termination or suspension of violating party |
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Term
| What are the differences from a material breach or a withdraw from the state? |
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Definition
| Opinion??? Related to the Treaty to ban nuclear testing by JFK |
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Term
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Definition
Treaty prohibiting all test destinations of nuclear weapons except underground.
Russia breached contract? |
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Term
| What are the measures available to breached against party? |
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Definition
Article 49
Article 51
Article 53 |
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Term
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Definition
| Counter measures are limited to non-performance of international obligations |
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Term
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Definition
| Counter measures should be proportionate with injuries suffered |
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Term
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Definition
| Counter measures should be terminated as soon the responsible state has complied with its obligation |
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Term
| Types Compensation for Breaching |
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Definition
Reparations
Countermeasures
Other Measures --- Eco sanctions |
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Term
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Definition
Convention on the prevention and punishment of Crime of genocide
Any party that is accused of this violation will be submitted to the international court of justice |
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Term
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Definition
Article 20 & 21
Article 20: If a treaty authorizes a reservation no further accepatnce is needed by other contracting states unless noted
if the reservation harpenns the original effect of the treaty, universal acceptance is needed
Article 21: Fill in |
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Term
| Reservations to Treaties in Regards to the Congo |
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Definition
The problem was the reservation to Article 9 in regards to the geocide convention. The ICJ said hat the reseravations is not incompatible with the object and purpose of the convention.
Separate Opinion--- The reservation is subject to stat jurisdiction rather than substance and states involving jurisdiction should be decided case by case |
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Term
| The meaning of Sovereignty |
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Definition
The whole body of rights and attributes which a state possess in its territory, in exclusiion to all other states (UK v Alb) Judge Alvarez
The right to enter international engagements that contribute to international sovereignty---SS Wimbledon |
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Term
| Harry S Truman Executive Order 1945 |
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Definition
| High concerns for ugency of conserving and prudently utilizing natural resources, gov of united states regards the natural resources of the ubsoil and sea bed continital shelfs as pressing orders. With Jursidiction, Us was able to act, if shores hit other states they must fall in line there orders as well |
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Term
| Texaco Overseas Petroleum Company/ California Asiatic Oil Company v Libya |
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Definition
Colonial era: colonial powers had freedom to exploit natural resources of the colonies. When the new international economic order came several UN general assembly resolution.
Issue: expropriation the applicable law and the compensation? |
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Term
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Definition
Compensation is appropriate if it is adequate, effective and prompt
Adequate---market value
Effective---paid in currency that is convertible
Paid without withdraw to pay |
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Term
| Guidelines of International Law |
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Definition
Article 39 Identifies another source... general pricniples of law recongnized by civilized natiosns)....
Principles that have been recognized as principles of international laws in other states
Deriving from natural law, without reference state consent
Principles that arise in most national legal systems |
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Term
| Hull Doctrine v Calvo Doctrine |
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Definition
| Investment treaty... The requirement of compensation to just must be adequate effective and prompt... formula was controversal but concluded in more than 2200 bilateral |
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Term
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Definition
| Under Article 38, some natural law elements are inherent. Extends to the source of international law beyond the realm of positivism |
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Term
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Definition
| general conception of law that every violation of an agreement involves an obligation to make reparation |
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Term
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Definition
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Term
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Definition
Montevideo Convention was enacted in 1933 which was a convention on the Rights and Duties of States...
Factors of statehood;
Permanent population
Defined territory
Government
Capacity to enter into relations with other states |
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Term
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Definition
The purpose of the United nations are...
To build and develop friendly relations among nations based on respect for the principle of equal rights and determination |
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Term
| Development of Self-Determination |
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Definition
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Term
| Development of Self Determination |
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Definition
| Aaland Island: Absent of express provisions in international treaties, the right of disposing of national essentially an attribute of sovereignty |
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Term
| Development of Self-Determination (2) |
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Definition
Move from decolonization to secession and the attempt tpp granting independence to colonial countries and people
Move towards the issue of human rights
Friendly Relations Declaration
States territorial integrity should be protected if they are conducting themselves in equal rights and self determination |
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Term
| Conference of Yugoslavia Arbitration Commission |
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Definition
Commission Opinion No 1:
Socialist federal republic of Yugoslavia is in the process of dissolution, it is incumbent upon the Republics to settle such problems of State succession as may arise from this process
Commission Opinion No. 2
The right to self determination must involve changes to existing frontiers at the time of independence... except where the states concerned agree otherwise. |
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Term
| International Organizations |
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Definition
WHO: World Health Organization
WTO: World Trade Organization
ILO: International Labor Organization
UN: United Nations |
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Term
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Definition
| governments will be pressured by their citizens to engage in international cooperation to take advantage of technological development |
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Term
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Definition
| some services have the characteristics of being a public good, that is if they are avaliable to anyone they must be avaliable to everyone |
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Term
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Definition
Global & General: United Nations
Global and specialized: WTO, IMF World Bank
Regional & General: Organization of American States |
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Term
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Definition
| Constitutive Instruments----> Assembly of Members----> Specialized & Executive Organs-----> Secretariat |
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Term
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Definition
| Recomendations can be made to security council in regards to maintenance of international peace and security, including principles governing disarmament and the regulation of armaments |
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Term
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Definition
General Assembly
Each member of the general assembly will have one vote
Important decisions will be made by 2/3 vote of present voters |
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Term
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Definition
The security council shall consist of 15 members of the United Nations. Each member shall be permanent members of the security council.
The non-perm members shall be elected for terms of 2 years |
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Term
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Definition
To ensure prompt & effective action by the United Nations, its members confer on the security council primary responsibility for the maintenance of international peace and security.
In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations |
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Term
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Definition
| The organization shall enjoy in the territory of each its members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes |
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Term
| Security Council Resolutions (Apartheid) |
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Definition
1963 (Resolution 181)
Solemnly calls upon all states to cease forthwith the sale and shipment arms, ammunition of all types and military vehicles in South Africa
1977 (Resolution 418)
Acting therefore under Chapter VII of the Charter of the United Nations |
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Term
| International Court of Justice |
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Definition
| Comprised of 15 permanent judges elected by the general assembly and the security council for non renewable terms |
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Term
| Two types of cases for ICJ |
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Definition
Advisory proceedings: non-binding but authoritative answers to specific legal questions by UN organ or agency
Contentious Cases: between states that are parties to the statue (Consensual Juriddiction) |
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Term
| International Court of Justice Jurisdiction |
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Definition
Consent based Jurisdiction
Three sorts of contentious cases
1. Those arising from treaties which both states are parties
2. those arising from a special agreement
3. Those covered by declarations goven by both parties in which they acceot compulsory jurisdiction |
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Term
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Definition
| International Law is automatic part of state domestic law. Int law is superior to domestic law |
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Term
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Definition
| Int Law and Muncipal law are in fact two seperate bodies of law except being branches from the same tree |
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Term
| Van Grend en Loos Case (1963) |
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Definition
Ne legal order of international law for the benefit of which the states have limited their sovereignty rights, and the subject of which comprise not only member states but also their nationals
Provisions of EU laws have direct application within a territory of a member state |
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Term
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Definition
| precedence of community law is confirmed by a regulation shal be binding and directly applicable in all memeber states |
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Term
| Making International Law In The Us |
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Definition
Article II US Constitution: President has power for treaties but must have 2/3 senate vote
Congressional Executive agreement: Executive branch enters int agreements with prior or subsuquent approval of a simple majority of both houses
Executive Agreements
Executive branch enters into intl agrrements without congressional participation |
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Term
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Definition
Executive agreement between UK and US for a military court- Clash with 5/6th amendment
Constitutional Agreement regarding jurisdiction of United States citizen on foreign grounds |
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Term
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Definition
| In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. |
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Term
| Scalias Concurring Opinion |
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Definition
| They do not authorize Congress to enact laws for carrying into execution ‘Treaties,’ even treaties that do not execute themselves, such as the Chemical Weapons Convention.” |
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Term
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Definition
necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we conclude that Congress acquiesed in the President’s action, we are not prepared to say that the President lacks the power to settle such claims.
President doesn't have the power, but he did what he had to do ? |
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Term
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Definition
Prescribe
Adjudicate
Enforce |
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Term
| SS Lotus Case (France Turkey) |
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Definition
Death and damages from turkish & french sea collision
Did turkey act in conflict with the principles of international law by instituting criminal proceedings ?
International law does not prohibit a state from acting in law in its own jurisdiction , in which it cannot rely on permissive rule of international law |
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Term
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Definition
Traditional Approach: American Banana Case Lawful or unlawful is deemed by the country in which the act was committed
Internationalization of Economic Activity
Alcoa Case: Restricted the productionby limiting imports into the United States therefore violated the antitrust laws |
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Term
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Definition
| Every contract...or consipiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal |
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Term
| Hartford Fire Insurance v. California |
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Definition
Whether the US anti trusy laws governed British reinsurer concerning reinsurance written by them in london
Sherman act does apply to foreign conduct as it does and will have an effect in the United States |
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Term
| Bases for Prescriptive Jurisdiction |
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Definition
The nationality Principle: By virtue of the obligations of citzenship, the United States retained its authority over him
Te Protective Principle: Deals with civilians acting in criminal behavior committed within or without the realm
Passive Personality Principle: Nationallty of victims of a terrorist attack
Universal Jurisdiction: Any state can exercise jurisdiction because the prohibited acts are inernational character |
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Term
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Definition
Should universal jurisdiction reach acts of terrorism
Universal Jursidiction: Only where crimes are univerally condemned by the community of nations
or outside of nations in which the nation has no state capable of prosecution |
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Term
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Definition
| All members shall refrain in their international relations from the threat or use of force |
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Term
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Definition
| To ensure prompt and effective action by the United Nations its memebers confer on security council primary responsiblity for maintenance of international peace and security |
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Term
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Definition
| Nothing in the present charter shall impair the inherent right of indiviudual or collective self-defense if an armed attack occurs against the security council has taken measures necessary to maintain international peace and security |
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Term
| Sanction v War for the First Persian Gulf War |
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Definition
| Security Council Resolution: To use all necessary means |
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Term
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Definition
| The revival argument Under 678 and 687 The united states are alloud to use force |
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Term
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Definition
| Resolution 1441, 2002: “...decides that Iraq has been and remains in material breach of its obligations under relevant resolutions...in particular through Iraq’s failure to cooperate with United Nations inspectors...” |
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Term
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Definition
Rebellion
Insurgency
Beligernecy
1965 General Assembly Resolution, no state shall... interfere in civil strife in another state |
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Term
| Nicaragua v. United States |
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Definition
| Article 36 (2): The states' parties to present statute may at any time declare that they recognize as compuslsory IPSO factor and without special agreement |
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Term
| Nicaragua v. United States (1986) |
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Definition
Principle of non-Intervention: Court finds that no such genera right of intervention in support of an opposition within another state, exists in contemporary international law
Use of Force
The court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the international affairs of Nicaragua does not in itself amount to a use of force |
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Term
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Definition
Intervention by Invitation
Counter Intervention
Self Defense |
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Term
| 1970 Friendly Relations Declaration |
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Definition
| everystate has the duty to refrain forom organizing instigating assisting or participating in acts of civil strife or terrorists acts in another state... when acts refer to or involve threat or use of force |
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Term
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Definition
| The issue of self-defense against armed attacks by non-state actors |
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Term
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Definition
Consent Argument: The consent given to uganda was not an open ended consent
Self defense: while Uganda claimed to have acted in self-defense, it did not ever claim that it had been subjected to an armed attack by the armed forces of DRC. |
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