International Law Outline PDF

International Law Outline I. sources of international law Treaties Customary international law General principles of law Judicial decisions and writings of highly qualified publicist 1. Treaties (convention, agreements, etc) A treaty is an international agreement co...

International Law Outline I. sources of international law Treaties Customary international law General principles of law Judicial decisions and writings of highly qualified publicist 1. Treaties (convention, agreements, etc) A treaty is an international agreement concluded between states in written form and governed by international law entered into by any Member of the UN. The consequence for not registering the agreement is that no party may invoke the agreement before any organ of the UN, including the ICJ. Vienna Convention on the Law of Treaties – principle authoritative source for treaty law o Members to a treaty can ONLY be states, not international orgs or NGOS. Types of treaties o General multilateral treaties: open to all states of the world, or to all members of a later regional group o Subject matter treaties: establish a mechanism for states to regulate or manage a particular area of activity o Bilateral agreements: mutual exchange of rights/traditions between few states Governing Law o Vienna Convention on the Law of Treaties o Every State possesses the capacity to conclude treaties. Does a state which has signed the treaty, but not ratified yet, has treaty obligation? o The Permanent Court of International Justice says that if ratification takes place, a signatory state’s misuse of its rights prior to ratification may amount to a violation of its treaty obligation. Treaty Reservations o Unilateral statement made by a state, when signing, ratifying, acceding to, accepting or approving a treaty o where it seeks to exclude or to vary the legal effect of certain provisions of the treaty in their application to the state § Arise in multilateral agreements. Does not happen in bilateral agreements because that would be a counteroffer and they can just re-negotiate. o Declaration: seeks neither to alter nor to interpret the treaty § Ex: nation clarifying that its agreement to join treaty does not mean it recognizes another State § Ex: nation explaining how a nation plans to adopt a treaty internally o Admissibility of Reservations § A state can submit a reservation unless: The treaty prohibits it The reservation does NOT fit within the reservations allowed within the treaty, or The reservation is incompatible with object/purpose of the treaty § A reservation that is expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty provides § A reservation modifies for the reserving state in its relations with other participating states, and modifies those provision to the same extent for that other party in its relations with the reserving state § When another state rejects a reservation but has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply between the objecting state and the reserving state o Observance of treaties § Pacta sunt servanda – Vienna Convention Article 26 § Every treaty in force is binding upon the parties to it and must be performed by them in good faith o The End of Treaty Obligations  § Invalidity Legal effects are void from the start if invalid. It's not about what happened later Invalid if: o Ultra Vires: outside authority à the consent to be bound was in violation of a provision of its internal law concerning competence to conclude the treaty, and that internal law is of fundamental importance à it's possible but extremely rare o Coercion - representatives were coerced into agreement § Only care about military force. Has to be a threat or use of force that is that violates the principles of the UN Charter. § Political or economic coercion do not count o Jus cogens - conflicts with jus cogens which are peremptory norms aka highest level of international law which you can never have an excuse to violate eg. law against genocide, torture § Termination Termination ends treaty relationship, but does NOT void its previous existence and legal effects Rights/obligations violated before termination are still actionable Terminated can happen by o terms of the treaty specifying the treaty duration, condition to bring about termination etc. § consent of the parties § breach 2. Customary International Law What is Customary International Law international custom, as evidence of a general practice accepted as law.” Customary international law consists of two distinct elements: State practice Opinio Juris (accepted as law) Permissive or Prohibitive? Jurisdiction over cases occurring outside one’s territory is allowed as long as it does NOT exceed limits imposed by international law – SS Lotus Lotus principle: you can act unless if there is a prohibition on that act sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. State practice shows that the illegality of the use of nuclear weapons is formulated in terms of prohibition – Legality of Threat/Use of Nuclear Weapons Question should be framed so as to comply with the generally prohibitive nature of international law – Unilateral Declaration of Independence in Kosovo State Practice (objective) If no treaty and no controlling executive/legislative act or judicial decision, resort must be had to the customs and usages of civilized nations – Paquete Habana (SCOTUS) What constitutes as state practice state practice consists of conduct of the state, whether in the exercise of its executive, legislative, judicial or other functions. State practice must be consistent and widespread Persistent objector Rule Must object to the rule at beginning of its formation + must continue to object via verbal or actions. Must be consistently sustained over time States that come in late to the agreement/convention They are out of luck; they must follow it Multiple persistent objectors Then the customary law may be overturned (no longer customary law) New states Most new states are eager to be accepted into the club and eager to assert that they are accepting of international law. Opinio juris- state acceptance that such practice is necessary by law (subjective) subjective or psychological element, and it is evidence of a legal conviction  For acts to be considered customary international law, must amount to a settled practice with the existing belief that the practice is rendered obligatory by existence of a law requiring it à The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. – North Sea Continental Shelf (equidistance case) Jus Cogens (Preemptory Norms) Jus Cogens" norm is a preemptory norm meaning that they can't be modified or avoided A principle of international that is based on values interpreted as fundamental and is ranked higher than other law and cannot derogate it EVER This means that they trump all other rules of international law This includes prohibition of heinous acts like torture, genocide, wars of aggression, crimes against humanity, and slave trade Rather these norms that enable international cooperation such as diplomatic and sovereign immunity. Jus cogen overrides: Treaty rules that conflict w/ peremptory norm – portion of treaty invalid Ordinary customary law Security council resolutions Jus cogen does NOT: Create jurisdiction for a tribunal – the fact that a state has violated a jus cogen norm, does NOT provide jurisdiction at a tribunal Require national prosecution of offenders – Belgium v. Senegal Override sovereignty immunity – Germany v. Italy 3. General principles of Law Principles common to various domestic legal system courts will look and see how, is there some principles that are common in some way across, and how or when are these used right we rarely will see a court Not derived from a treaty or customary international law, but certainly can appear or be agreed upon in a treaty General principle needs to be appropriate for international law Easier to disprove a general principle than finding one Found when new questions arise (e.g. environmental law) Lex posterior: the later in time trumps Variety of general principles Equity – most commonly relied on general principles Clean hands doctrine – principle of equity for when two parties have assumed reciprocal obligations of each other If one party is non-performing, it can't take advantage of the other party's similar non-performance of that obligation When treaties or customs are silent, general principles of law serve to fill the gaps – Corfu Channel Look to principles that are self-evident Elementary considerations of humanity Freedom of maritime communication Every state's obligation to not knowingly use its territories for acts contrary to the rights of other states General principle must NOT be confused with concrete manifestations of that principle in specific rules – Prosecutor v. Erdemovic Member of Bosnian Serb army plead guilty to crimes against humanity; argued forced to commit atrocities to avoid being killed General principle of law that a defendant is less deserving of full punishment if criminal act committed under duress, but the policy does not translate to duress being a complete defense Proportionality – action must be proportionate to whatever is motivating action  Disproportionate actions – Iran v. US Iran complained that the US had violated Iran's rights under a treaty providing for freedom of navigation when it attacked several oil platforms in the Persian Gulf. US claimed self-defense. ICJ says conditions for self-defense NOT met because US actions were disproportionate – Iran damaged a single US warship without causing any deaths Proportionality as corrective measure – North Sea Continental Shelf case Proportionality here means that the results are proportionate Equidistant method would lead to inequitable results 4. Judicial decisions and writings of highly qualified publicist Judicial decisions Directs ICJ to apply judicial decisions as a subsidiary means for the determination of rules of law – ICJ Statute Article 38(1)(d) ICJ decision has no binding force except between the parties and in respect of that particular case – ICJ Statute Article 59 No stare decisis Not in a hierarchical relationship with other courts and tribunals – e.g. European Court of Justice, European Court of Human Rights, etc. Court frequently reference previous decisions in order to demonstrate the existence of a legal rule Publicists/legal scholarship Directs ICJ to apply the teachings of most highly qualified publicists as subsidiary means for the determination of rules of law – ICJ Statute Article 38(1)(d) II. Statehood 1. Determination of Statehood States States makes law through treaties and/or through customary law. States are the subjects/entities of international law With the capacity to take action You have the ability to engage in treaties, negotiations, etc. You have the ability/right to govern your territory Have the ability to join international organizations You can own, acquire, and transfer property You have authority over people in your territory Two approaches for Statehood: Constitutive Theory Historically in order to be a state, a country had to be recognized as such by at least one other state The theory that the act of recognition by other states itself confers international personality on an entity purporting to be a state. The idea that other states constitute/recognize that state It's hard to be a state if the other states don't recognize you. Declarative Theory Countries must have requirements for statehood; The existence of state depends on the facts and does the facts meet the criteria. The theory that the existence of a state depends on the facts and on whether those facts meet the criteria of statehood laid down in international law. A state may exist without being recognized by other states Recognition is merely "declaratory" of an already existing statehood. The primary function of recognition is to acknowledge the fact of the state's political existence and to declare the recognizing state's willingness to treat the entity as an international person with the rights and obligations of a state. Today we use the Declarative theory. Criteria for Statehood Permanent Population  A state must have people and territory Doesn't need to be exclusive to that nation [people are permitted to hold dual nationality] Must be regular and consistent Government A government is a bureaucratic institution that establishes and enforces the rules within a state. Governments can either be De Jure or De Facto De Jure: the government officially recognized by other nations Latin for "in law" referring to things that have status due to laws or status by right De Facto: the government is in effective control of the state A new state formed by secession will have to demonstrate substantial independence, both formal and real, before it will be regard as definitively created. Law for "point of fact" referring to things that exist in fact or in practice even those things are not formally recognized by law. Defined Territory (territory with geographic boundaries) Specific boundaries might be the subject of dispute, but the possession of territory is the essential factor. Territory can be obtained by: Military conquest (now prohibited) The Doctrine of Terro Mulius (less common) Cession: when one country transfers territory to another (ex US purchasing Alaska from Russia) Secession: a portion of a state separates from an existing one. Long standing effective and peaceful possession (similar to adverse possession) You can be a state with a boarder dispute Capacity to engage in relations with other States This requires sovereignty and authority This distinguishes sub-states from actual states (VA cannot be sovereign state in the international system) 2. “Self-determination” of Peoples Self determination: will of the people in a particular territory to determine whether they should be considered a state Can be accepted as customary international law Competing interests: Self-determination threatens territorial integrity Self-determination protects autonomy 3 types of self-determination claims The traditional (and now mostly historical) claim of non-self-governing territories to determine political status following colonial rule (decolonization) Self-determination was the centerpiece in decolonization – now defunct Claims involving foreign occupation Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence Claims that a “people” has been denied political rights within an existing state (internal determination) so severely that secession might be justified as a remedial measure (external determination) (political participation and potential ‘remedial secession’) Absent colonization or occupation, external self-determination should only be exercised if there is an exigency – Re Secession of Quebec Two types of self determination External self-determination: new state created, e.g. decolonization or secession Three part model for secession Some situations in which secession is prohibited a. Nature of the secession violates a fundamental norm Zone of tolerance – international law neutral to secession a. Doesn't prohibit it and doesn’t create a right for it  Zone of entitlement – international law creates right to secession a. External self-determination or remedial secession If we keep leaning toward external determination, international order would be disrupted --> keep infringing state sovereignty Internal self-determination: idea of being able to exercise some autonomous self- government within this broader framework of a State When peoples have a range of rights inside a state to govern themselves 3. Criteria for Government (statehood) Recognized Governments Recognition: an optional, political, public state act for which there is no legal duty Other states recognize the legitimacy of a government either in a formal manner (de jure), or by engaging with it in such a way as to implicitly recognize its status as a legitimate government (de facto) De jure government: a government that has a legitimate claim to governance but is either in exile or detention or controls only a portion of the country Legitimacy test– refuse to deal with a government that lacks democratic validation, or at least refuse to accord formal recognition in such circumstances De facto government: a government that is in fact controlling all/most of country or territory Effective control test – deal with whatever government may be wielding effective power at the moment without necessarily making a formal act of recognition when power-holders change a. foreign governments have to decide which approach to use Estrada doctrine – generally understood to mean that recognition of the government is unnecessary once the state has been recognized Concern: Governments shouldn't be in the practice of assessing the quality/validity of other governments At present, it its generally the practice of States to engage in recognition à States do not want to appear that they favor bad governments, or appear to be propping up governments that do not have actual control Unrecognized Government An unrecognized government is normally unable to bind a State to other States that don't recognize it Both kinds of recognition theories should be considered when evaluating the government’s capacity to act on behalf of the state. A de facto government may enter into legally binding obligations on behalf of a State that must be assumed by the legitimate government Insurgent authority Category of de facto governments may also include organized insurgent groups which exercise governmental authority for a time over part of the territory of a State To be considered a de facto government, a political regime does NOT need to be formally recognized as such by other international governments, provided it is performing governmental functions in practice – Salimoff & Co. v. Standard Oil 4. Acquisition of Territory (statehood) Title by discovering or occupying o Terra nullius: describes territory that nobody owns; the first nation to discover it is entitled to take it § "Nobody's land" § Historically, did not refer only to territory in which no persons present, but to territory that was discovered by European power and that was unclaimed by any other sovereign state recognized by European powers § Rarely invoked anymore as a basis for title to territory Title by military conquest o No longer an acceptable way after WWII § Acquisition of territory by military conquest is now forbidden by international law, but previously-settled title remains in place  § Title acquired by conquest in period before the Kellogg-Briand Pact (1928) remains good title Title by treaty of cession (transfer) o Land can be transferred from one nation to another through cession or an agreement to do so, typically included in a treaty à lawfully received the territory from prior sovereign, sometimes by purchase (e.g. Louisiana Purchase) or as a concession in exchange for some other benefit o Coercion NOT allowed – treaty would not be recognized Title by state seccession o State establishes title to territory by demonstrating that it "succeeded" to the territory when a predecessor state dissolved or disappeared, or when a new state broke away from an existing state § Devolution: when a new state is granted independence by a previous sovereign § Secession: when a new state forcibly seizes independence Title by prescription à Longstanding effective and peaceful possession § This is analogous to the common law doctrine of adverse possession: a state administers a territory openly as its sovereign § Continuous – cannot be temporary § Effective – effective possession as a basis of sovereignty à you're actually able to control § Peaceful – undisputed possession à no other state is saying it's not your territory § Territorial sovereignty over land may be gained by a State which is NOT the first discoverer of the land if that State peacefully and continuously possesses the land for a period of time Island of Palmas Right of territorial sovereignty NOT complete through mere discovery Determining Boundaries Uti possidetis juris applies as a general rule of customary international law governing legal questions pertaining to new States’ boundaries – Burkina Faso/Mali Dispute Uti possidetis: a principle stating that territory and other property remains with its possessor at the end of a period of change ("as you possess") III. International Parties 1. International Organizations Generally, refers to organizations composed entirely or states and usually established by a treaty serving as the organization’s constituent instrument- possessing its own international legal personality. Members include states and other entities (self-governing, territories NGO) Functional Test: looks like international organization/operates like one = is one. Key sources of international law Constituent instrument Treaty/other instrument that creates the organization Practice by the organs of the organization Rules of procedures, precedents, Plenary organ Committees Broader field of international law organization law (basic norms/practices) International Legal personality The constituent instrument of each international organization prescribes powers and functions of the organization and establishes organs entitled to exercise those powers and functions Entity possessing rights and obligations under international law and upon which international legal norms can act UN is competent to bring an international claim because it has an international legal personality Inherent powers – inherent attribute of the organization due to legal personality UN has the capacity to bring an international claim Inherent legal personality – UN can negotiate, conclude special agreements, prosecute claims before tribunals Implied powers – powers expressly/impliedly granted by the constituent instrument UN’s sum of international rights comprises the right to bring a claim against a State to obtain reparation for damage caused to the agent in the course of his duties Look to purpose/functions of the organization as specified in its constituent documents and developed in practice Responsibility of International Organizations Members of an organization do NOT, as a general matter, incur direct responsibility for the acts or engagements of the organization Immunities Internal relations Normally, international organizations are absolutely immune from suits arising out of internal operations, eg. employment dispute Since national courts are NOT available for resolution of internal personnel disputes, judicial tribunals have been established within international organizations to adjudicate disputes between the organization and its staff members External operations Generally, a separate waiver must exist to overcome immunity from execution against assets of the international organization Membership States become members by: Becoming parties to the constituent treaty establishing the organization Admission through votes of one or more of the principal organ Succession by a new state to membership held by a predecessor state A nation that is not a member of the United Nations is NOT a party to the Statute of the ICJ – Legality of Use of Force 2. Non-governmental Organizations (NGOs) Formed by individuals or private groups sharing a common non-profit objective Created under national law, NOT international law Product of cooperation among private persons, NOT states  International organizations have treaty-based rights under international law, whereas NGOs do not At the UN, many NGOs have consultative status – can attend sessions and talk with States NGOs have no international legal personality, but have legal personality in municipal law’ a. Objective: i. Provide vehicles through which global "civil society" can influence the decisions and actions of states and international organizations, and indeed the attitudes and conduct of diverse actors. ii. Created under national law and are the product of cooperation amount private persons. 1. Humanitarian, health, human rights, 2. environmental matters, 3. professional and scientific associations, 4. federations 5. international unions representing labors and employers iii. Religious bodies iv. Scientific academies b. Non-governmental organizations (NGOs) play an active role on the international scene and in some cases have a recognized legal status under treaties and other international arrangements. NGO functions in international law International law formation Ex: Ottawa Convention (ban on land mines) – NGOs came up with the idea, lobbied states to participate in the process, etc. International law interpretation Ex: NGOs helped to develop the Siracusa Principles on the meaning and scope of the derogation and limitation provisions of the International Covenant on Civil and Political Rights Advocacy engagement Contributing to international adjudication by making friend-of-the-court submissions to tribunals In contrast to their participation as amici, the ability of NGOs to initiate cases is less extensive Law enforcement/compliance Monitoring state compliance with international obligations Ex: Human Rights Watch Assistance to collective enforcement efforts Ex: UN Security Council resolution regarding the former Yugoslavia – called on states and international humanitarian organizations to collate substantial information relating to violations of humanitarian law 3. Individuals Status of the individual Historically, no conception of individual in international law – objects to subjects Individuals as objects - meaning the states decide whether and how to protect individuals in the same way that properly interests might be protected Individuals as subjects - meaning the individuals capable of advancing and enforcing international rights and of being held to certain international obligations Rights of the Individual Vienna Convention Article 36 creates individual rights, which may be invoked by the National State of a detained person – LaGrand case (Germany v. US) A State is entitled to protect its citizens, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction via ordinary channels – Greece v. GB States can create individual rights in an international agreement that can be enforceable in international courts Individuals have always been a feature of international law. They are often beneficiaries of obligations imposed on states They also directly possess their own rights and obligations Can bring suit in their own states against foreign states or officials  Have a lot of international protected rights not just as aliens in a foreign country but even against the government in their own county These rights can be vindicated by individual petitions before human rights court or treaty body Individuals can be prosecuted for violating international law before the international criminal court or ad hoc tribunals (but not the ICJ) Individuals can directly bring a claim against the host state Obligations of the individual Officials/others who committed act NOT held personally responsible Some acts are of such severity, that they trigger individual responsibility – crimes against peace, war crimes, crimes against humanity, piracy, etc. Nationality of the individual Significance of nationality States have the right to regulate their nationals even if the individual is outside out of that state states also have the right to enact laws that regulate aliens outside its territory Everyone has the right of a nationality A state has the right to enact laws that regulate its nationals, even when they are outside its territory Acquisition and Denial of Nationality/How does someone get nationality? Ways to acquire citizenship: Naturalization: citizenship by application and the meeting of specified conditions Jus sanguinis: citizenship granted because parents are nationals of the State Jus soli: citizenship by birth within the State Right to Citizenship International Covenant on Civil and Political Rights: everyone has the right to a nationality and no on shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Statelessness Though nationality is an inherent right of all human beings, states can denationalize an individual which will make them stateless Consequences 1. They have no right to invoke the diplomatic protection of any state. 2. If expelled by the country of residence, no state is required to accept him or her. 3. Insecurity of residence 4. Impediments to travel 5. Inability to participate effectively in political governance, 6. denial of access to economic and social rights Limitations to Nationality Genuine link: To be given international effect, a person’s nationality gained through naturalization must be based on a long-standing relationship and close connection between the person and the naturalizing State – Nottebohm case In Nottebohm Case: ICJ held that Lichtenstein’s own internal recognition of Nottebohm’s citizenship is its own business, but in order for citizenship to “rise to the level of international effect” there must be a “real and effective” relationship or “genuine link” between an individual and his State of citizenship. Genuine Link test factors: § reciprocal rights and duties § interests (e.g., bank account, property ownership, etc.) § sentiments (family ties, intent to move there, owning home there...) § Domicile Voluntary choice § NOT obligated to recognize nationality that individual 4. Transnational Corporations under International Law  TNCS are typically private, non-governmental entities incorporated under and subject to national laws. Some cases TNCs have entered into agreements with governments under which both sides have agreed that principles of public international law or general principles of law will govern the transactions/investments. a. Nationality of corporations i. Mostly treated like the nationals of a particular State – State of incorporation or the state where the corporation maintains its headquarters/registered office ii. Corporations must rely on the protection of the government of which they are nationals and do NOT have direct access to international legal proceedings to protect their rights, for the most part. b. The national State of a corporation may provide diplomatic protection to company/bring a claim against another State, unless equity principles justify permitting a third State to bring claim on behalf of company’s shareholders – Barcelona Traction (Belgium v. Spain) IV. State Responsibility Questions to consider: o can this internationally wrongful act be attributed? Is this state conduct? § We need to find ways to tie the conduct to the state. o are there reasons to excuse the state’s international wrongful conducts? o what can victim states do in response? Did an internationally Wrongful act occur? o Two part test: § Is the conduct underlying the act in question attributable to a state? If the act is committed by an organ of the state o Military, any part of the government Acts of private entities authorized to exercise the state's authority Private conduct that the government acknowledges as its own after the fact The act is committed by a group that de facto controls the country The conduct of a state whose organs of government are placed at another state's disposal. The conduct of a state that provides assistance to the state directly responsible for the conduct o The assisting state must've been aware of the circumstances making the conduct wrongful o The conduct must have been wrongful if directly committed by the assisting state. § Does the conduct breach an international obligation? Breach of international obligation: any conduct that fails to comply with that state's obligation under international law. o May be either an overt act or omission § Can either be in a treaty customary law. The international obligation must've been in effect at the time the conduct occurred. 1. General Principles of State Responsibility A breach by a state of international obligation engages the responsibility of the state for the consequences of that breach. o Responsibility arises regardless the source or origin of the breach: treaty or customary law or general principle. Draft Articles of Responsibilities o As a general matter, if a state by its act or omission breaches an international obligation, it incurs international responsibility. § If the consequence of the breach is an injury to another state, the delinquent state is responsible to make reparation for the breach to the injured state. o Elements of an internationally wrongful act of a State: § There is an internationally wrongful act of a State when conduct consisting of an action or omission: Is attributable to the State under international law;  And constitutes a breach of an international obligation of the State 2. Primary Rules and Secondary Rules Primary Rules o Rules that determine the legality/illegality of conduct o Tells us what the state’s obligation are, and what constitutes a breach. § We first look to the PRIMARY SOURCE of the state’s responsibility (treaty, customary law, principle, etc) if absent breach consequences we look to the Rules of State Responsibility. Secondary Rules o The determine the legal consequences of a failure to fulfill obligations established in primary rules. o The Draft Articles of State Responsibility are secondary rules. 3. Attribution of Conduct to a State Conduct of State organ always attributed to State “an organ includes any person or entity which that status in accordance with the internal law of the state.” State support does not automatically constitute state organ, Bosnia & Herzegovnia o Persons, groups of persons or entities may, for purpose of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons or groups act in complete dependence on the State, of which they are ultimately merely the instrument Conduct of person/group attributed if acting on the instructions of, or under the direction or control of, that State in carrying out the conduct effective control test (Bosnia & Herzegovina v. Serbia & Montenegro) Effective Control Test: Effective control must be shown in respect of each operation in which the alleged violations occurred, NOT generally in respect of the overall actions taken by the persons having committed the violations – court rejects the "overall control" test o When any person purports to act on behalf of the State, that individual’s conduct is imputable for purposes of State Responsibility. 4. Breach of International Obligation Article 12 of the ILC Articles on State Responsibility provides: There is a breach of an international obligation by a State when an act of that State is NOT in conformity with what is required of it by that obligation Unclear whether fault or tangible injury are required to constitute a breach o Fault – no general principle or presumption about the role of fault in relation to any given primary rule o Tangible injury – depends on the particular primary rules of the specific obligation at issue § In the case of some primary rules, a breach does NOT occur unless and until tangible injury occurs – e.g. duty to protect embassy of a foreign government requires physical damage for breach; negligence in protection is not itself a breach § In others, state responsibility may be engaged even without tangible injury to another State. there may be injury in a legal sense without specific material harm. Third state assistance in wrongful acts: o if another state aids in a commission of an internationally wrongful act, the aiding state is internationally responsible if: it does so with knowledge of the circumstance of the internationally wrongful act and the act would be internationally wrongful if committed by that State. o the aiding states need to make reparation for wrongful acts too if they were complicit, even though they did not directly commit those wrongful acts. Abu Zubaydah v. Lithuania 5. Circumstances Precluding Wrongfulness There is a breach, but states can say they have excuses. But once the circumstances end, you must pay reparations to make the State whole Special circumstances where wrongfulness is precluded: 1. Consent:  a. Valid consent by a State to the commission of a given act by another State precludes wrongfulness to extent the act remains within limits of consent 2. Distress a. Conformity with obligation is possible but would result in loss of life i. This isn’t available if the person who undertook the action caused the circumstances. ii. Defense is not available if the conduct foreseeably caused greater danger than that which was avoided. iii. Focuses on individual life. 3. Self-defense: a. The state’s conduct prevented an imminent and overwhelming threat. i. Conduct must cease once the Security Council takes steps to address the underlying threat. ii. Collective self-defense: States are allowed to act to defend one another. 4. Necessity: a. Intentional breach necessary to safeguard an essential interest of the State against a grave and imminent peril, and it does not essentially harm the other state’s interest. b. Necessity differs from FM in that the former involves a deliberate act not to conform to the obligation….FM requires it to be impossible to perform the act. i. Necessity is a deliberate choice. It is an intentional breach! ii. Harming of the state’s interest 5. Force Majeure: a. Materially impossible to perform obligation. i. Impossibility of performance may excuse performance if the essential object of the treaty has permanently disappeared, such that performance is no longer possible (Hungary v. Slovakia) 6. Countermeasures (sort of): a. These are INTERNATIONALLY UNLAWFUL actions taken in response to the wrongful conduct of another state. b. They’re intended to compel the state to comply with its obligations following a breach. i. If the countermeasures comply with the rules of state responsibility, then they ARENT considered a breach of international law. 6. Retorsion An UNFREINDLY act/conduct that is taken against another party. o This conduct does NOT violate international law. § Ex.: Suspending diplomatic relations, cessation of trade, curtailment of immigration from the offending state, denial of foreign aid 7. Countermeasures Rules for lawful countermeasures o Must be responding to an earlier, wrongful act o Must demand the wrongdoer to cease misconduct prior to countermeasure o Must be directed only at the state that committed the act o Must be commensurate with the original issue o Must be intended to induce the other country to stop their initial, wrongful act o Must be reversible Permissible countermeasures o Must be taken in response to a previous international wrongful act of another State and must be directed against that State o Injured State must make a demand on the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it o Effects of a countermeasure must be commensurate with the injury suffered § Unlawful if disproportionate to initial injury – Hungary/Slovakia o Purpose of countermeasure must be to induce compliance by wrongdoing State § The measure must be reversible Impermissible Countermeasures ILC Articles on State Responsibility Article 50 – lists several types of acts that cannot be undertaken as countermeasures, including violations of human rights,  humanitarian law, peremptory norms of general international law(jus cogens), and UN Charter norms on the use of force Obligations not affected by countermeasures 1. Countermeasures shall not affect: (a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) Obligations for the protection of fundamental human rights; (c) Obligations of a humanitarian character prohibiting reprisals; Commented [UN1]: reprisal= punishment; acts that were (d) Other obligations under peremptory norms of general international law. otherwise be unlawful 2. A State taking countermeasures is not relieved from fulfilling its obligations: (a) Under any dispute settlement procedure applicable between it and the responsible State; (b) To respect the inviolability of diplomatic or consular agents, premises, archives and documents. ILC Articles on State Responsibility Article 52(3) – countermeasures may NOT be taken, and if already taken must be suspended without undue delay if: The internationally wrongful act has ceased AND The dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties Collective countermeasures A response against an offending state for violation of an international obligation may be taken by other states through joint or parallel action o 8. Reparations Generic term that covers various methods by which a state can discharge or release itself from its responsibility Restitution – reestablishing the status quo, e.g. returning property taken, release people wrongfully detained etc. In Factory at Chorzow, the Permanent Court seemed to favor restitution as a form of reparation when it says that “states should make restitution in kind if this is not possible, payment of a sum.” Not every situation can land to restitution à eg. The Avena Case before the ICJ, Mexico established that the US failed to notify detained Mexico nationals of the consular rigths after arrest. Mexico asked the ICJ to annul the conviction and sentence, but ICJ decline the reparation. ICJ ultimately asked the US to review and reconsider the convictions, taking into account the effects of the violation of the Vienna Convention. Compensation – payment of a sum Satisfaction – sometimes an injury cannot be compensated financially – e.g. insult to a flag, encroaching on territory, symbolic damage, etc. A satisfaction does not necessarily avoid other forms of reparation Examples of satisfaction Apology or expression of regret by wrongdoer Guaranty or assurance by wrongdoer that there will be no repetition of the wrongful act Sometimes, an international tribunal will determine that its own finding is sufficient reparation – e.g. mandating the issuance of a declaration V. International Court of Justice and Dispute Settlement 1. Obligation to Settle Disputes by Peaceful Means Sources of the obligation o UN Charter Article on Dispute Settlement: § All members must settle their international disputes by peaceful means.  § Parties to a dispute likely to endanger international peace and security must first seek a solution via various peaceful dispute settlement options. Principle of Free Choice = states can choose the method of dispute resolution they want to pursue Consent: states are not obligated to resolve disputes. But cannot use force to resolve disputes. o Jurisdiction is almost always consensual. What is a Dispute? o A disagreement on a point of law or fact, a conflict of legal views or interests between two persons § A disagreement is NOT a dispute if its resolution would not have any practical effect on the relation of the parties. For purposes of jurisdiction before an international court or tribunal, a dispute requires a degree of specificity. 2. Non-Adjudicatory Methods of Dispute Resolution Negotiation o Dominant mode for settling disputes or seeking to prevent them in the first place o Sometimes must be exercised prior to pursing other options § Many clauses in international treaties only compel dispute settlement for disputes that are not settled by negotiation o Even in absence of treaty regime, states may be viewed as obligated to negotiate § Good faith: obligation to negotiate is not only to enter into negotiations, but also to pursue them as far as possible No obligation to reach an agreement, but you must try § Meaningful negotiations: requirement NOT satisfied if a party: Insists upon its own position without contemplating any modification for it OR Obstructs negotiations by interrupting communications or causing unjustified delays o Advantages § Lower costs, parties in control, resolution is possible, but not as binding o Disadvantages: internal politics, both parties in control, perception of weakness Mediation o Introducing a third party as a mediator, who is expected to help the states in conveying their positions to each other, suggesting possible solutions, and encouraging concessions from each side § The mediator has no actual binding decision § Mediators may be individuals, committees, or institutional bodies o Advantages: § Accepting proposal of third party /not adversary, parties in control, face-saving compromise o Disadvantages: § Doesn’t necessarily lead to resolution, no final binding decision Conciliation o Entails the involvement of a third party, but in a much more formal process, often involving the parties submitting written and oral pleadings to conciliator o Conciliator is typically charged with issuing a decision recommending a specific way of resolving the dispute- decision is NOT legally binding Arbitration o Leads to a binding settlement of the dispute on the basis of law § Differs from judicial settlement in that parties have greater control over the appointment of the adjudicator, the selection of procedural rules and applicable law, the confidentiality of the process, etc o Advantages: § Helps avoid forum shopping § Can keep award confidential- important for preserving business relationships § Recognized as valid binding tool for dispute resolution § More flexible § Combines diplomatic and judicial procedures  o Disadvantages § Expensive Adjudication o courts 3. International Court of Justice International Court of Justice – principal judicial organ of the United Nations o Not a world court o Fifteen judges – 5 judges elected every 3 years for 9-year terms o States cannot be sued without their consent (express or implied) Only states can be parties to a case – must be parties to the ICJ statute a. Types of Cases to be seen Contentious Cases o Only states may be parties to a contentious case before the ICJ. International organizations and private parties cannot. o States that become parties to the UN Charter are ipso facto parties to the ICJ statute, but being a party to ICJ Statute or UN member is insufficient for automatically exposing a state to the jurisdiction of the Court o For contentious cases, the ICJ has limited jurisdiction § Only states can be parties. No orgs, people, etc. § Other states outside the UN can consent to being a member of the ICJ statute § Being a party to the ICJ Statute isn’t sufficient for exposing a state to the jurisdiction of the Court Advisory Opinions o Hypothetical questions o In these instances, designated organizations and UN bodies refer a question to the ICJ. The Court then considers the issues involved and provides an advisory opinion that clarifies the status of international law related to the topic. b. ICJ Jurisdiction a. Jurisdiction based on Joint Referral i. Ad-hoc special agreement to agree to go to ICJ ii. typically done through a special agreement, or compromis, in which the parties specifically define the terms of the dispute and questions they would like the Court to resolve iii. Under such cases, the Court is limited to the specific questions put by the parties. 1. When this applies, it’s going to be obvious b. Jurisdiction based on Forum Prorogatum i. Not mentioned in the ICJ statute and is rarely used ii. When one state files a case at the Court against another state with no existing jurisdictional basis for the case, and the other state nevertheless consents to the Court's jurisdiction c. Jurisdiction based on a treaty i. States may establish a court’s jurisdiction over their disputes through an international treaty provided 1. there is consent by all involved States to the treaty’s jurisdictional clause, AND 2. there is a dispute among the States which cannot be resolved through negotiations – eg. Congo v. Rwanda d. Jurisdiction based on Declarations accepting Compulsory Jurisdiction i. Any international legal dispute involving the States may be submitted to ICJ, provided that all States party to the dispute have accepted its compulsory jurisdiction – ICJ Statute Article 36(2) 1. States make a declaration to accept the jurisdiction of the court 2. Both states must file a declaration accepting jurisdiction over all legal disputes referred to in the provision 3. Only states that have filed a declaration under Article 36(2) can sue other states that have also made such a declaration. 4. Can be an unconditional declaration or include reservations. a. There is reciprocity in the application of reservations.  ii. A State may consent to ICJ jurisdiction through formal ratification of ICJ Statute Article 36(2) or through conduct indicating consent, and may withdraw consent to ICJ jurisdiction by giving timely notice – Nicaragua v. US c. ICJ Jurisdiction: Contentious Cases a. To initiate a case before ICJ, a state files an "application" setting forth basic facts relating to dispute and basis for invoking ICJ jurisdiction b. If one party to treaty requests order of provisional measures, ICJ may institute other provisional measures enforcing treaty against both parties if imminent risk that rights at issue will suffer irreparable prejudice – Georgia v. Russia d. ICJ Jurisdiction: Advisory Opinions a. Advisory opinion has NO binding legal effect in itself, but is persuasive opinion b. BUT some international agreements provide that disputes relating to interpretation/application of the agreement will be submitted to ICJ for an opinion to be binding on the parties to the dispute i. Discretion to Decline to answer the question: 1. When question is NOT asked nu relevant UN organ, the fact that an answer may turn on a decision of Security Council is not sufficient to justify ICJ declining to give opinion to General Assembly- Unilateral Declaration of Independence in Kosovo 2. When question asked by relevant UN organ but evidence suggested that it was mostly to guide states and not to guide that organ 3. When it is NOT readily apparent that answering the question would be of any value to that organ VI. International Law in Domestic Law § usually within the national system in terms of decision making, national law will prevail as a factual matter (not as a legal matter) 1. Approaches to International Law § Monism/Monist Approach o In which national law and international law are two parts of a single system. § International law passes into national law automatically upon treaty ratification or emergence of a rule of customary international law National courts apply international law just like any other national law. o In a PURELY MONIST SYSTEM § International law supersedes national law if the two laws conflict. § Dualism/Dualist Approach o The international law and domestic law are two separate systems. § In this kind of system, international law must be incorporated or implemented to become part of domestic law. International rules do not automatically become part of national law o Only when they are transformed or incorporated into national law, by an act of the national level is when they become national law. o In a PURLEY DUALIST SYSTEM, international law would have no claim/precedence over national law § Most states fall somewhere along that somewhere between the two. o The United States has a mixture of both approaches. § It has some monist elements § Also has dualist elements The US constitution will always override any conflicting international law. § The US generally treats treaty law and customary law the same and does not consider there to be a hierarchy between them in understanding US obligations. § “International law is part of our law” – Paquete Habana 2. Customary International law as a Source of US law § Competing Theories o Inheritance theory – customary international law became part of US law when it acquired independence (came into our law as part of the common law of the UK), so customary law is part of the state law (so not federal law) o Nationhood theory – customary international law becomes part of US law by virtue of US becoming a sovereign nation/by virtue of international statehood  An entity that becomes a State in the international system is ipso facto subject to international law § Now generally US courts view customary international law as federal common law § A claim under the Alien Tort Statute must be based on a universally recognized, specifically defined rule of international law – Sosa v. Alvarez-Machain 1980s § International Law and Statutory Interpretation § An act of Congress should never be construed to violate the law of nations, if any other construction remains – Justice Marshall in The Charming Betsy --> Guiding canon in US jurisprudence to interpret ambiguous statutes as much as possible to be consistent with international law o International law as "federal questions" --> cases arising under international are within the jurisdiction of the federal courts § Law of Nations is an evolving body of law that develops/changes over time 3. Treaties in US law No treaty can be free from the constraints of the Constitution – Reid v. Covert Treaties are supreme over non-conforming state law. Constitution is superior to treaties Constitution and treaties are the supreme law of the land, but Supremacy Clause NOT interpreted to mean that treaties can violate Constitution If a treaty was (1) motivated by exigency and great national interests, and (2) did not violate express constitutional prohibition à then treaty could grant Congress law-making authority it did not otherwise have under Art. I of Constitution. (area of state jurisdiction) Thus, a Treaty which declared War would be unconstitutional b/c it violated express prohibition. A treaty will usually be held to be constitutional unless it affirmatively violates an individual liberty (e.g., property rights, free speech, trial by jury). 4. Self executing v. Non-self-executing treaties § When a US treaty does NOT contain self-executing language, it does NOT automatically become domestic law unless additional legislative act is performed – Foster v. Neilson § “Shall be ratified” =not self-executing § Only self-executing international obligations can automatically become binding domestic law – Medellin v. Texas o Tools to determine if treaty is self-executing: § Language of treaty in question – is the language sufficiently determinative? § Does the treaty tread on Congress's power? If it intrudes, cannot be self-executing Ex: if treaty requires a payment, go to war, etc. § Intent of political branches § Past practice for similar treaties VII. Jurisdiction and Immunities for STATES § When can states exercise jurisdiction over stuff that happens outside their territories § States might need to regulate matters that are happening outside my territory and now we come up with a potential conflict between the national jurisdiction of one state and the national jurisdiction of another state, which naturally raises the possibility of friction § Three types of overarching jurisdictions 1. Jurisdiction to Prescribe § Jurisdiction to create rules of general import may be formulated not only by legislatures but also by other institutions of government, such as administrative agencies and even courts o The power to regulate conduct § Similar to subject matter jurisdiction § Sometimes called Legislative Jurisdiction  Includes all aspects to legislative, executive, and judicial power to establish jurisdiction to govern conduct 2. Jurisdiction to Adjudicate § Generally personal jurisdiction over persons or things § In general, a state may exercise jurisdiction through its courts § Restatement defines it as: the authority of a state to apply law to persons or things, in particular through the process of its courts or administrative tribunals o the relationship between the person or entity is such that to make that type of jurisdiction reasonable § Think of minimal contact, 3. Jurisdiction to Enforce § The authority of a state to exercise its power to compel compliance with law § Executive function o How does this come up? § Think about how US criminal law to protect territory 4. International Law Principles on Jurisdiction to Prescribe a. Territorial Principle § State has jurisdiction over things/activities that happen within the territory of the state o Or Conduct overside the boarder that has an affect inside of the boarder. § Ex. Conspiracy of terrorism § Can be subjective or objective o Subjective- crimes committed against persons or things inside the US (the actual conduct is within the US) o Objective- the conspiracy may be outside the US, but the conduct was or intended to be in the US o American courts have jurisdiction over conduct occurring abroad if it has an effect within the United States – US v. Aluminum Co. b. Nationality Principle § A state has a significant interest in exercising jurisdiction over persons/things/activities that possess its nationality, even if the conduct is performed outside of its territory When the US has statute to prosecute its citizens for conduct outside US territory § US government may exercise personal jurisdiction over its nationals and residents abroad, and may impose penalties for disobeying US laws provided due process is provided – Blackmer v. US c. Passive Personality Principle § A state may be properly interested in protecting its nationals from at least certain kinds of harm inflicted outside its territory by persons that owe the state no allegiance o The victim is a US national § Ex. A foreign national kills a US national abroad outside US territory Most controversial basis of jurisdiction o Not a common principle in the US o The US does use this basis of jurisdiction with respect to terrorism o A country may assert jurisdiction over crimes committed against its nationals abroad – US v. Neil d. Protective Principle § A state has an evident interest in protecting itself from harm o Asserting jurisdiction over acts committed outside its territory by a non-national but the state's vital interest or security is at stake. § Ex- jurisdiction to prosecute a person counterfeit US money; VISA fraud o State may assert jurisdiction over foreigners for acts committed abroad that are directed against the State’s territorial integrity, security, or political independence – US v. Vasquez- Velasco e. Universal Jurisdiction § Certain activities are so universally condemned that state has an interest in exercising jurisdiction to combat them  o Against the interest over the entire international community o Ensures that such offenses do not go unpunished o Accepted basis to assert jurisdiction § War crimes, crimes against States, piracy, crimes against humanity § The state COULD insert jurisdiction BUT the state needs a statute to actually assert jurisdiction § Acts committed outside territory by non-national against non-national, but nature of offense provides jurisdiction – e.g. slavery, torture, genocide, crimes against humanity, war crimes Regina v. Bartle: Court rule: The jus cogens nature of torture permits States to take universal jurisdiction over the act wherever it is committed --> Current and former heads of state may NOT claim immunity against prosecution for acts that are universal crimes under international law 5. State Immunity from Jurisdiction a. Absolute/Classical Theory § A sovereign cannot, without giving consent, be made a respondent in the courts of another sovereign o When property of a State enters a foreign State with which it is at peace, the property still belongs to the State – Schooner Exchange § Thus was born distinction between: ius imperii (public acts) ius gestionis (private or commercial acts) o From this distinction evolved limitations on sovereign immunity. b. Restrictive Theory § Immunity of sovereign recognized for sovereign or public acts (jure imperii) of a state, but NOT with respect to private acts (jure gestionis) and to also address the problems that would come up. If we denied people, the benefit of exercising jurisdiction that they would have gotten if their claim was against a private actor rather than a state. US Foreign Sovereign Immunities Act – the gist is there is jurisdiction in Federal court for non- jury cases against a foreign state. FISA Provides SMJ in federal courts for foreign states – is a jurisdictional statute, does not provide a cause of action Only place it does so is where there are suits against “terrorist states” § Starting premise Foreign states, as a general premise, have sovereign immunity Exceptions: May chip away at this immunity via certain exceptions a. State may waive immunity (express or implied) b. Commercial activity c. Rights in certain property d. Suits for torts for acts committed outside scope of employment e. Jurisdiction for determination of arbitration awards § FSIA serves at the sole basis for obtaining jurisdiction over a foreign State in US courts – Argentina v. Amerada Hess Shipping § Waiver Exception o Express or implied waiver § Express waiver – by treaty or contract o Treaty by the foreign state with the US o Contract by the foreign state with a private party § Implied waiver – deducted from conduct signifying intent to waive o Who may waive immunity? § Apparent authority  § Actual authority only – foreign official's manifestation of authority to bind the sovereign is insufficient to bind o A State waives its sovereign immunity from suit in the courts of a foreign State when it deliberately seeks redress in the foreign State’s courts for the same matter – Siderman De Blake v. Argentina § Commercial Activities Exception o Foreign state NOT immune when plaintiff's action is based on: § A commercial activity that the foreign state carries out in the US § An act performed in the US in connection with a foreign state's commercial activity elsewhere OR § A commercial activity occurring outside the US that causes a direct effect inside the US – Argentina v. Weltover o Commercial activities exception applies to conduct performed NOT only as a regulator of the market, but also as a private player o Commercial activities exception does NOT apply to the exercise of a State’s police power – Saudi Arabia v. Nelson 6. State REPRESENTATIVE immunity § International tribunals do NOT provide immunities for heads of state § Two types of immunities: a. Personal Immunity: Immunity Ratione Personae § Status-based immunity for heads/former heads of state, heads of government, foreign ministers § Ratione Persona/High-Level Officials o Nature of the job o Absolute immunity – from any civil/criminal jurisdiction for public and private acts committed when person in office or before office § Does NOT apply when the person leaves office § A State’s minister of foreign affairs enjoys immunity from criminal prosecution when abroad for the duration of office – Congo v. Belgium b. Functional Immunity: Immunity Ratione Materiae § Conduct-based immunity for all state officials – either low or high ranking § Ratione Materia o Nature of the act o Accorded to any government official for public or official acts – NOT private or unofficial acts – performed in office § Essentially protects the acts of the state § Continues even after the person leaves office Commission of a crime that is an international crime against humanity and jus cogen does NOT constitute an official act – Pinochet v. Bartle VIII. International Human Rights Law 1. Foundations of Human Rights Law § Traditionally individuals are objects of international law, not subjects. International law did not apply to a state’s treatment of its own nationals § Two idea submerged from the Nuremburg Tribunals o Protecting people against transgressions of their own gov’t o Recognizing that persons in power had INTL law responsibilities and could be held individually, criminally accountable § According to Article 1(3), one of the purposes of the UN is the achievement of “international cooperation in... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” 2. Defining Human Rights § Has not been authoritatively defined a. Civil and Political Rights ‘Negative Rights’ § Right to vote, live, etc. § “All human beings are born free and equal in dignity and rights.” (Art. 1)  § “Everyone has a right to life, liberty, and security of person.” (Art. 3) § freedom from slavery and torture; § freedom from arbitrary arrest; § right to equal protection; § guarantee of fair criminal procedures; § rights of worship and expression. o Many civil and political rights are considered non-derogable. b. Economic and Social Rights ‘Positive Rights’ § Right to healthcare § Right to education § Right to work, rest, leisure o Most of these are positive rights that require active steps to promote and/or ensure. 3. Competing Interests Interests of the individual v. those of the State 1. Here the State may be conceived of as representing the collective interest of the entire community of individuals 2. Protecting dignity of individuals via civil, political, and economic rights v. need for State to maintain law, order, and stability Interests of a single state v. Broader community (global or regional) of states; 1. Allocation of governmental authority; 4. Deviations from the Norms of Human Rights a. Limitations within the Norms themselves § Most rights are not absolute; limitations are governed by law, not the whims of the State o Whether a particular limitation of a right is permissible under the covenant is a question of INTL law and state actions may be scrutinized b. Reservations § US reservations to the ICCPR could by construed so as to not bind the US and not really integrate any new law/obligations into domestic US law. c. Derogations (in emergencies) § In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States may take measures not consistent with their international obligations to prevent a violation of human rights. o Lawless Case (European Court of Human Rights, Ser. A., no. 1) § A contracting gov’t has the right, in case of war or public emergency threatening the life of the nation, to take measures derogating from its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, provided that such measures are strictly limited to what is required by the exigencies of the situation. 5. Right to a Remedy § Velazquez v. Rodriguez à on canvas o Making sure there is a remedy when there is a violation o Individual Petition after exhaustion of all local remedies + legal duty to provide remedies § Right to a remedy-State must: o Prevent violations o Investigate violations o Punish violations o Compensate the victim § If state apparatus does not act in complying with its duties, then it is violating that individual’s human rights § Failure to provide a remedy is often an important hook for individuals to gain a redress of some kind *** IX. Prohibition on the Use of Force 1. Pre-UN  § Historically resort to war was NOT prohibited in the international system § Forcible Reprisals: regulation of coercive measures short of war o Involve a state using force against another state in response to the latter’s antecedent violation in international law o Requirements: § Prior violation of international law § Unsuccessful demand for redress § Reprisal needs to be proportionate to injury suffered If not claiming self-defense a country will claim reprisal, but in order to claim reprisal, it must show there was: o An UNSATISFIED DEMAND o A proportional response § Self defense § States can defend themselves if they are victims of use of force § Do NOT need to issue formal declaration of war o The Caroline Incident: § Necessity is needed for use of force in terms of self-defense -->Necessity standard: instant, overwhelming, leaving no choice of means and no member for deliberation § Proportionality standard: response cannot be unreasonable or excessive 2. The UN Charter Prohibition on Use of Force Framework § Art. 2(4) – “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purpose of the United Nations.” “Prime Directive” of Modern Int’l Law § “Force” – UN Charter does not define "force" --> but has come to be understood only as meaning use of armed or military force o Force = armed force 3. Indirect Use of Force § Indirect aggression: the aggressor state, without itself committing hostile acts as a State, operates through third parties who are either foreigners or nationals seemingly acting on their own initiative o As long as the act is attributable to the state § If the entity conducting the attack is under the effective control of the State, then the State has violated the prohibition on the use of force – Nicaragua v. US, US did NOT exercise effective control over the Contras, so NOT responsible for their acts amounting to use of force 4. Threat of Force § If the use of force itself would be unlawful, then the threat of force would be unlawful under prohibition – Legality of Threat or Use of Nuclear Weapons § Threat to do lawful things is lawful too o Testing weapons are generally not threats of force § Force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary, but need to distinguish between law enforcement and threat of use of force - Arbitral Award B/w Guyana and Suriname § Example: US. V. Nicaragua case o the first thing the court has to figure out is the things that the US did all these different acts that the US did. Did they violate the prohibition on the use of force? All of these are use of force: § Laying of naval mines in the territorial waters of Nicaragua. Yes, use of force. § US attacks on oil installations on a naval base § the provision of weapons and other support to the rebels use of force. What was not a use of force § US engaged in maneuvers near the Nicaraguan border. That's not a use of force. Military maneuvers are not a use of force  § Providing funds to the country's money, not a use of force e.g. weapons and other systems, yes. Money, no. 5. Exceptions to the Prohibition on Use of Force a. Consent § NOT written in the UN Charter, customary intl law and historical justification § State allowed to use force when invited by another state to respond to a particular situation § Can NOT be provided by opposition leaders in a state – Nicaragua v. US b. Authorization by UN Security Council § Multinational use of force authorized by UN Security Council under Chapter VII of UN Charter § Set of tools to force non-compliance states back into compliance with INTL rules and norms c. Self defense Threshold Questions o Imminent armed attack or threat? § Is yes, how did the self-defense use the force? Necessity Proportionality Existence of imminent armed attack or threat of armed attack o ICJ looks to the gravity, scale, and effects of the act in question to determine whether it is an armed attack o Anticipatory self-defense: armed attack has NOT yet happened, but is imminent and state believes it needs to act in self-defense to prevent the attack – state NOT required to absorb first blow o Immediacy § Temporal limitation of self-defense à must be an emergency action à to make sure cannot be used as retaliation § Anticipatory self-defense cannot be too far in advance or based on speculation Necessity o Absence of adequate non-forceful options to deter/defeat attack Proportionality o Defensive force can be used to the extent needed to repel attack o Amount of force proportionate to your objective, not what the other side is doing (i.e. get them to stop) Sometimes force needed to repel/halt an attack can be more or can be less than the attacking state used. Must be proportionate to the goal of defeating or deterring the attack Also applies to self-defense in response to attacks by non-state actors 6. Humanitarian Intervention; Responsibility to Protect § The strongest exception to the prohibition on armed force --> to save the lives of innocent human beings threatened by massacres atrocities, widespread brutality and destruction § No UN resolution has supported the right of a State to intervene on humanitarian grounds with armed troops in a State that has not consented to such intervention § based on a State’s responsibility to protect 7. Use of Force Analysis If NO – retorsion, countermeasures, diplomacy, economic sanctions If YES – armed attack? If NO – notify Security Council Security Council has exclusive authority to determine threats to international peace and security If YES – consent, self-defense (necessity, proportionality, immediacy)  Fairly well accepted that if you are going to use force against a non-state actor, showing that the state is unable or unwilling to help, gives you the justification that you need X. Law of Global Commons 1. The Global Commons § The planet’s shared natural resources that are not under the jurisdiction of any one nation o All nations have access to these areas 2. Antarctica § Treaty in 1989 o Affirms the continent is free from sovereignty o A natural reserve devoted to peace and science o Treaty rests on 4 principle § Peaceful uses § Freedom of resource § Denuclearization § The shelving of any territorial claims o Antarctica should be used exclusively for research purposes o Guarantees freedom to conduct scientific research o Promotes scientific cooperation made freely available o Has protections for the environments 3. Outer Space § Uses o Satellites § Weather/meteorology § GPS § Communication § Core Principles o Non appropriation § No one can claim outer space § States cannot make claims of sovereignty § States cannot claims certain orbital spots o Peaceful purposes § Non-aggressive § Peaceful purposes mean “nonmilitary” o Freedom of exploration and use § for everyone § Activities in outer space Carried out for the benefit and interest of all countries o State responsibility § The state bears responsibility for all outer space activities § When space activities cause physical damage on the ground, to an aircraft in flight, or to space objects in space, then mere international responsibility extends to international liability § States should operate with due regard and avoid other interference with space activities § Frameworks o Registration Convention § Launching state is a state that launches or procures the launching of an object into outer space o Liability Convention § Tis obligation to be held liable for resulting damage is necessarily linked with responsibility, but is distinct enough to require close attention o Rescue Agreement § Recovering space objects and individuals in space in distress § Advanced Issues o Space Traffic Management (STM) § STM refers to measures taken to minimize or mitigate the negative impacts of the increasing physical congestion in space  § The goal of STM is to try to eliminate future collisions and other incidents in space that could create additional debris or other safety risks for space activities, and to increase the safety and efficiency of space activities § Space situational awareness (SSA) is an important element SSA refers to the ability to characterize the space environment and activities in space by using ground or space-based sensors to track space objects o Status of Humans in Space § The treaty regime provides particular rights and responsibilities with regard to astronauts, and they may or may not apply to other spaceflight participants like space tourists o Space resources § Article II of the Outer Space Treaty states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claims of sovereignty, by means of use or occupation, or by any other means 4. The Law of the Sea § The law of the sea is simultaneously one of the oldest and one of the newest bodies of international law § Law of the Sea Convention (LOSC) o International customary law o The convention represents customary international law because of the state practice and opinio juris on which LOSC was based § Even before the convention existed, many of the norms included in it were already practiced by States States have done so out of a legal obligation § Maritime Zones o The right of coastal states to regulate and exploit areas of the ocean under their jurisdiction are one of the foundations of the LOSC