Sources of International Law Review PDF

Sources of International Law International legal system: vertical system, hierarchical International law: horizontal system (all actors- states and IGOs- are equal) - Reflects the status quo of IR Most complete statement: Statute of ICJ article 38 (1): “general principles of law recognized by c...

Sources of International Law International legal system: vertical system, hierarchical International law: horizontal system (all actors- states and IGOs- are equal) - Reflects the status quo of IR Most complete statement: Statute of ICJ article 38 (1): “general principles of law recognized by civilised nations” 1. International conventions: treaties establishing rules recognized by contracting states 2. International customs: general practice evolving into law 3. General principles of law recognized by civilised nations - fill gaps where neither treaties nor custom provide clear rules. They represent fundamental legal concepts shared across various national legal systems 4. Judicial decisions and teachings of qualified scholars Int law recognized by all UN members (jurisdiction of ICJ) - and expressly recognized by Switzerland, a non UN member Division - Law creating: - Treaties, - Customs, - General Principles - ICJ practice (although it doesn’t create law, their decisions set precedents and practices that states try to follow - Law determining: determining what law will be put into practice - Tribunals, - Int Law Commissions- scholars meeting together determining what should be law, - judicial decisions Division - Formal sources= the way you do it, constitutional application of the law - Treaties, customary law - Material sources= essence of the regulations, inside - factors, facts, or elements that influence the content and development of legal rule - not, in themselves, the process by which law is formally recognized. Custom = primary source of Int Law = longest existing source of law across all regimes at national and international level, before treaties - Because people were illiterate, only customs defined the way you can behave - Decentralised, chaotic, horizontal Defined by states’ behaviour, tradition (social and legal elements) Promulgating a law: shouting in the city square Behaviour because of law (customs) vs behaviour because of other factors - What makes the distinction is if the state believes the behaviour is an act of law Requirements - Duration: uniformity of behaviour during a certain period of time, - Consistency and Repetition: state situation (taking into account the condition of the state, eg economic or advancements; so diff requirements of repetition for diff states eg sending satellites US vs Burkina Faso) vs nature of the act ! Abstention can be considered a part of the formation of a custom; when material ability to perform an act, abstention is a conscious duty eg ambassador needing to present his credentials to be acknowledged as a representative of his country by the monarch of the country he’s in - It’s a custom, an act of law - Became a custom eg (imaginary case) bc iran passed through oman’s territorial water for 200 years without sanctions and with oman's abstention from asking anything, it became a bilateral custom to allow iran to pass through there - But it's not a general custom/ universal practice as oman didn't allow other countries to pass through the waters (or regional if only gulf countries) : number of actors involved in the custom complements the consistency of the custom - A general practice is accepted as law- creates specific obligations, not courtesy State legislation can also turn into international customary law eg Scotia vs Berkshire - American ship Scotia bumped into UK ship Berkshire despite warnings, BUT British warnings were in British maritinal code (coloured lights) that US didnt understand - It had been used for a long duration (more than 30 years), not only by the British but other states and major navigational powers despite being a national legislation - US Supreme Court gave case to UK BUT states can abstain from being parts of customs formed from state legislation - Not all, some don’t accept objection if they’re based on values of humanity 2 type of objections - Persistent objector: a state clearly and explicitly objects during the formation of the custom  - Subsequent objector: rejection of custom after its creation because of valid reasons why they couldn’t have made the objection during its creation (eg baltic states couldn’t object while soviet satellite states, but are allowed to afterwards); also needs to be explicitly stated and clear - Can’t object if they have participated in the custom during its formation - Change of government /ruler often given as reason, not always valid - Burden of proof: the claimant always has to prove the existence of the custom if proof is needed in the Tribunal, esp for bilateral customs ( not usually for general customs) General Principles of Law International law= “general principles of law recognized by civilised nations” - Statute of the ICJ, 38 (1) Civilised nations= developed General principles of law can be: - Natural Law concept- eg the Right to Life ( universally accepted concept but death penalty puts it under question, can vary from state to state) - When there's a gap in international law, you take information from national legal systems that can be generally applicated= general principles of law - Eg GDPR of EU adopted by other countries because it was the most advanced - Jurisdictional Practices from national jurisprudences (so not only material) - Consent , reciprocity, good faith, validity of agreements, recognition of domestic legislation, finality of settlements, freedom of the seas - Eg in marriages or treaties - Eg molotov ribbentrop pact agreed to split poland, done in bad faith and without poland knowing, poland they’d known could have declared the peace treaty void Treaties - Main vehicle of int law dynamic = elaborated, explicit and superior form of declaration of int obligations “Pacta sunt servanda”= Obligations must be kept - Pillar principle of int law and all treaties, from roman law Vienna Convention on the Law of Treaties 1969 - Treaties no longer guided by customary int law, but by a defined and written set of principles - Guidance needed esp after collapse of colonial systems after ww2 Eg principles: - Preamble: principle of consent, good faith and pacta sunt servanda - East state has the right to be a party to a treaty - Mechanism of adoption, entry into force, scope and termination of int treaties Classification 1 Treaty= general term for legally binding international instrument Charter= treaty whose foundation has strong legal weight Convention= int multilateral treaty of significant importance that sets a standard Agreement= treaty dealing with specific issues, can be on anything, downsizes the name but obligations are equally bounding Pact= legally binding instrument(s), can be secret or open - Eg Molotov Ribbentrop Statute= functional agreement with explanatory character - Eg statute of ICJ Covenant= multilateral instrument in human rights that set standards Declaration= might only be political but can have legally binding elements - Eg Paris Declaration 1865 Memorandum of Understanding (MoU)= low level functionality instrument; its parties define its scope or level of obligation - Can signal strengthening of ties between countries Exchange of Diplomatic Notes - Used for information, notification, can be a courtesy but also customary law obligation Additional Letters - After the establishment of a treaty, adds conditions regarding to it and they are complied with , related to treaties functionality Classification 2 A. Bilateral treaties - Specific agreements - Define status between 2 subjects of int law on a specific issue - Can be political, economic, trade, security, etc B. Multilateral treaties - Among various countries - Regional, universal - Normally on a specific subject - Limited scope Classification 3 I. Law making treaties - Create obligation setting Int Law standard - Strong law making effect - Multilateral agreements with various signatories - Eg Declaration of Paris, Hague and Geneva Conventions : set up world standards II. Codification treaties: already existing customary law normas but assembled and agreed on int level (not setting a new standard Eg: - SLIDES + A third country can apply a convention as customary law Reservations & Declarations (in multilateral treaties) Can be done during the signing of the treaty, sometimes allowed after, through diplomatic notes to all signatories Reservation - States limit the scope of the application of the treaty in their case; - Eg disapproves of some clauses that they won't apply BUT - Humanitarian law treaties don't allow reservations - the reservation cant go against the purpose of the treaty Declaration - Explains how they're going to apply the obligation in their case without limiting the scope of the application JUS COGENS - Art 53 of Vienna Convention on Law of Treaties = Treaty becomes void if it goes against a peremptory norm Peremptory norm= norm accepted and recognized by international convention, a principle with strong implications - Can be modified by subsequent norm of general int law of the same character and higher standard: so a new norm eliminates (derogates) the existing one Eg peremptory norm does not permit juvenile prisons, even through they exist, no treaties can be made that includes juvenile prisons, or mutilation UN Resolutions = customary or treaty int law? “Cumulative practice that might be regarded as evidence of international law, valid for member” Refined by ICJ: “UNGA and SC resolutions constitute evidence of rules and principles” - Soft law, not all committees Treaties vs Customs Vienna Convention on the Law of Treaties 1969 - If you didn't sign the convention, you’ll be governed by customary int law - Art 38: third parties not joining the convention can apply its rules as customary law SO coexistence between treaty and customary law Unilateral Declarations - Declarations by a single state that can create legal obligations - Eg france made a UD (a statement) that they’ll no longer perform nuclear tasks in the south pacific; this set up an obligation for france agreed by ICJ Judicial Decisions = law determining = Tribunals with international validity International Arbitral Tribunals - These are panels established to resolve disputes between states or between states and private parties. They are typically ad hoc (temporary) and result in binding decisions based on prior consent from both parties to respect the ruling. International Court of Justice ( and its predecessor, permanent court of int justice) - Founded in 1948/49 - 15 judges elected to 9 year terms by UNGA and UNSC from a list nominated by Permanent Court of Arbitration (still exists) - Applies the law, does not make it: determination - Deals with: - Contentious cases: 2 countries against each other - Advisory opinions: at the request of a UN organ (eg UNSC) to explain legality of certain actions - The enforcement procedure of the UNSC: provide laws as basis for it International Criminal Court - Last ruling: warrant against head of Hamas and Netanyhu and head of IDF, defined as committing war crimes - Just warrant, not legal decisions; N can still speak in front of Regional Courts - Regional courts focus on human rights and other issues within specific geographic regions, such as the European Court of Human Rights (ECHR) or the African Court on Human and Peoples’ Rights. Ad Hoc Tribunals - Special tribunals set up to address specific crimes, such as those for the Rwandan Genocide or crimes in the former Yugoslavia. These courts often have limited, case-specific jurisdiction and operate under international law standards. National Courts - A national court like the U.S. Supreme Court can sometimes use foreign law, such as UK maritime law, in its rulings. However, national courts usually have limited  authority in international law unless their rulings align with international treaties or agreements. Other sources of int law: teachings of scholars or institutions - International Law Commission: Established by the UN to help develop and codify international law. - Publications in distinguished Legal Journals International Law and National Law Continental System (Civil) - Europe, South America, Russia Common Law - US, UK, Canada, Australia Sharia (Theocratic Law) - Sunni Sharia: Saudi Arabia - Mix of continental and Sharia: Iran + Mixes of the 3 Municipal Law (Shaw)= National Law = Domestic Law = internal law of a sovereign state Interplay: International Law + National Law Monist Theory = international and national law are a single system where international law norms prevails over national law Dualist theory = 2 separate legal spaces - Interaction between them is subject to strict regulation by Legal system - None prevails over the other or depends on the other Third Path - Variation of dualist theory = there is no superiority of any system, they operate in different ways and systems BUT int norms must still be applied in national legal systems Int obligations in the 3 pillars - Legislative: material, the laws  - Int obligation has to pass through legislative pillar (parliament) - Parliament can : ratify (direct application , monist) OR new law (adopting national legislation, dualist) - Judicial: Tribunals, decide how the law is applied - Executive: just applies the obligations, related to material laws Implementing Int Obligations in National Law Systems: Material law Different according to which system they use: monist, dualist or third path A. Direct application - Acc to monist theory, - all int norms ratified by Parliament derogate existing national norms in that field, - Int obligations once approved by the state directly enter national legal system - No need for additional laws B. Adopting national legislation - In dualist system - Get the content of international obligations that corresponds to the national obligations - Make a separate law or bill with the whole obligations of the agreement - Bill is passed through national legislative procedures (parliament) to be enforced internally (only bc the law was internally promulgated) - Eg in UK C. The US Case - powers are shared between the President and Congress. - For major treaties, the President needs Senate approval. - However, the President can sign some minor binding agreements independently, although their scope and impact are limited without Congress’s consent. RULES A state cannot use its national laws as an excuse to violate international laws (Vienna convention on Law of treaties) - SO states must change national law to fit int obligation that they have undertaken; if the states fails to complete agreement due to lack of action, will mitigate the consequences - Full obligation if ratified, not if just signatory Int Law obligations before national courts: Judicial System A. Automatic adoption  - Court has obligation to accept international obligations as law - Monist theory B. Transformation doctrine - Int law is not law unless national legislation approves it - Int law needs to be deliberately transported into national legal system - Dualist theory SO decides if judiciary has an automatic obligation or not to accept int obligations, regardless of how the parliament adopted them or not - Judiciary needs additional laws about how to behave in order to accept int obligations as evidence in Tribunals !! a country can have direct application in material law (monist system) but transformation doctrine in judicial system (dualist system) Means of “Transport” for Transformation Doctrine Executive Certificate - UK - Certificate issued by govt to certify that an int obligation is valid in national legislation - Goes to the Court to know they have to take the obligation as a source of law Exequatur - Continental law - Judgement of a tribunal that a decision issued by a foreign tribunal will be executed in their own jurisdiction - Grants authority to the decision of the foreign tribunal as if it was executed by the native one Subjects of international law = an entity capable of possessing international rights and obligations and having its capacity to maintain its rights by bringing international claims “Legal personality” Rights: Can vote, marry Obligations: abide by the law - All cumulative, not by choice Pacta sunt servanda= obligations must be kept WHO?  - Must be over 18 - In the gulf, women have limited legal personality CLASSIFICATION - Physical Persons - Judicial Persons - International Bodies - Govt - Non gvt - States STATES Montevideo Convention on Rights and Duties of States 1933 The state as a person of international law should possess the following qualifications a) A permanent population b) A defined territory c) Government d) Capacity to enter into relations with other states -> Basic elements of state (for state to be considered a state in international law) 1. Indicators of stable community a. Permanent population i. Requirement of human factor, needs a population that lives on a defined territory b. Defined territory i. States under territorial disputes can still be accepted by int community (if minor) 2. Operational effectiveness of a state a. Government i. State structures and enforcement mechanisms within the state, esp to bring international obligations into national law ii. BUT can be counterbalanced by strong international community support b. Capacity to enter into relations with other states i. This ability is essential ii. A non-state actors can establish relations with states but limited -> Operational elements of state (for state to be considered a state in international law) 1. Independence and sovereignty 2. Manner of attainment of capacity to enter into legal relations (legality) 3. Right to self determination - In the context of post colonial eras - Set up in UN Charter - Political and legal layers  - Ethnic minorities cannot gain independence because they've already been recognized as minorities of a state 4. Total recognition for a state to be able to operate on international plane a. Eg Taiwan Fundamental Rights of States 1. Independence -> being free to act within the legality of the int legal system 2. Non-intervention in internal affairs-> abstention of the use of force 3. Peaceful co-existence-> political concept turned legal, first used in India-China relations 4. Equality -> horizontal nature of int legal system Equality: GA Declaration of Principles of Int Law 1970 a) States are judicially equal b) Each state enjoys the rights inherent in full sovereignty c) Each state has the duty to respect the personality of other states d) The territorial integrity and political integrity of the state are inviolable e) Each state has the right to freely choose and develop its political, social economic and cultural systems f) Each state has the duty to fully comply and in good faith with its international obligations and to leave in peace with other states Extinction of States - Merger (eg west and east germany) - Annexation ( eg Anschluss) - Dismemberment (USSR, Czechoslovakia) - Cease to exist: Yugoslavia, under UNSC resolution 1992 Variations of States Federal States - USA, Switzerland, Australia, - Particular in nature and composition - Can be made of states, provinces, cantons, emirates, region, etc) - The components don't have sovereignty - Different components of a federation can enter into legally binding international commitments and take international obligations depending on the constitutional agreement of the federation - Eg US states cannot enter int treaties but Swiss cantons have the right to - SO federal states need to bring int obligations to be applied to all components - Different from - Association of States ( eg the EU, British Commonwealth- even if their head is the british crown); they’re more about closer cooperation and policy streamlining, but each state has independence and sovereignty - Protectorates and protected states  - Territorial Entities Protectorate vs protected state Protectorate= total sovereignty of a state and functionality is handed to another state (while still existing)- historical not present - Eg Belgian Congo - Different from mandate states (like Taiwan or Palestine) meaning a territory under the protection of another state, not necessarily one that used to be an independent state - Taiwan used to be a japanese protectorate till 1945, has very limited capacity to enter int treaties - Northern Cyprus: turkish occupation declared independence from Cyprus in 1983 BUT until UNSC resolution declared the occupation unlawful, not recognized Protected state= only some parts of its functionality is handed to another state, statehood is conserved but int relations are delegated to another state normally as a result of an agreement - Eg Monaco protected by France, signs some agreements in the name of Monaco (esp environmental ones) - Andorra (off head of state is french president and spanish bishop?) Territorial Entities - Condominium: sovereignty of a territory is shared by 2 or more states - New Hebrides/ Vanuatu: Anglo-French condominium, gained independence in 1980 aided by spain - Mandated and Trust Territories: post colonial territories after ww2 Territories under International Administration Bosnia - Representative of UN running the country - European police maintains order - Has a functioning government East Timor - Under UN administration 1999-2002, then gained independence - First representative Sergio de Mello Kosovo - Had no state structure - Under un mandate from 1999 - European union rule of law mission in kosovo - Still some remains of peacekeeping missions West Sahara - A failed case - Was a spanish colony; after transition to democracy, spain withdrew - Controversy bc of morocco algeria and mauritania and Frente Polisario, liberation movement  - When Spain withdrew from Western Sahara in 1975, both Morocco and Mauritania claimed the territory. Polisario proclaimed the Sahrawi Arab Democratic Republic (SADR) and fought against these claims. Mauritania withdrew in 1979, but Morocco continued to assert control over most of the territory. Led to protracted war and a humanitarian crisis, Polisario de facto govt of SADR ruling from Algeria - UN failed to deliver proper democratisation with elections and independence referendum from Morocco Special Cases Vatican - Theocratic state (papal states 756-1870) - Independent state Sovereign Order of Malta - Used to be a state, not any longer - Still maintains diplomatic relations with more than 100 countries, with ambassadors Other Entities subject to int Law International Public companies Transnational corporations National Liberation Movements - PLO, Frente Polisario International Organizations UN Recognition as a subject of international law, ICJ 1949 - Precedent settled the status of int govt orgs - assassination of Count Folke Bernadotte, a Swedish UN mediator, in Jerusalem in 1948 by Jewish paramilitary groups. This incident led to the question of whether the UN could seek reparations for injuries to its personnel. - The court ruled that the UN, as an international organisation, possesses international legal personality and can be recognized as a subject of international law. - Now most IGOs have a legal personality, but they re considered secondary subjects related to states International Committee of the Red Cross - Was founded by states as a result of Geneva convention - BUT is not a governmental org bc of its impartiality and humanitarian law involvement - The guardian of international humanitarian law  - BUT Not a subject to general international law - Refrains from any political decisions not in line with humanitarian purposes (sometimes compromised eg Nigeria 60s, but learned from it) Recognition and State Succession David Hume’s fork: we never take a conclusion without an empirical analysis Recognition of States - Political process as much as law - Required for states to function in the international arena 1. Constitutive theory - The act of recognition attributes legal personality to the state - Without recognition a state cannot have rights and obligations of int law 2. Declaration theory - A state could possess legal personality regardless of its recognition - It is just a matter of the acceptance of an already-existing factual situation—i.e., conformity with the criteria of statehood. Reality is in between depending on the state - Eg Arab states did not recognize Israel as a state BUT did not affect the statehood of Israel; only affected its capacity to enter bilateral relations with arab states - Kosovo has too little number of recognition so cannot be member of united nations Legal effects of recognition - Treaty compliance - Domestic effects for recognized states: provokes the rights and obligations of states, structural administrative and functional - Both recognized and recognizing states need to diplomatically recognize each other, passports, legal entities, embassies, companies in their residence, bilateral agreements to be signed Variations of recognitions De facto= customary law, no explicit recognition - Eg the decision to remain in a meeting with a government, automatically recognized (sometimes states don't recognize a certain govt but recognize the state: that's about legitimation of power ) De Jure= an act that legally shows the recognition of another state - (a treaty, opening an embassy, establishing diplomatic relations) Premature recognition: a state recognizing a state before having all the requirements of a state ( eg Switzerland recognizing Croatia before it had a defined territory or stable govt) Implied recognition  - Not the same as de facto recognition - state is not formally recognized by another state through official declarations, but certain actions or behaviours suggest recognition of its statehood - Although some countries don't recognize Taiwan but recognize PRC many maintain unofficial trade offices, cultural exchanges, accept passports and cooperation that imply a form of recognition. Conditional recognition - Litvinov Agreement 1933 US-USSR bilateral relation BUT conditional, that USSR wouldn’t take any actions against the US Collective recognitions - Eg joined statements by EU nations - Membership of UN Withdrawal of recognitions - Eg first time UK withdrew recognition of Ethiopia as independent state because, not fully on legal grounds; then fully without legal grounds UK withdrew rec of Cambodia butt only of its govt not state - US withdrew its recognition of Taiwan in 1979 in favour of recognizing the Peoples Republic of China Case of Taiwan: - Bc it insisted it was a representative of the WHOLE china and not an independent state, when countries recognized PRC they had to un recognize taiwan Non-recognition - An act of disaccord with the existence of a state - Sanctions Modality State Succession = what happens after states change fundamental elements, eg collapse of a regime or country, how they undertake treaty obligations, un membership, etc. A. Continuity and succession Eg: collapse of ussr - Core state: Russia> inherits all rights and obligations that were taken by the ussr, on both bilateral and multilateral treaties - Other states of ussr have to decide what political regime and int obligations they ll have - Selection of legitimate successor - Automatically inherits UN membership of former state, the rest have to gain their own membership Yugoslavia: core state=serbia BUT when it’s a divorce (Czechoslovakia) : split and divided through agreements, arranged all bilateral treaties, kept obligations of cz for both states - Split diplomatic entities equally, peacefully B. Categories of treaties subject to succession negotiations Vienna convention on succession of states in respect to treaties 1978: guidelines - Territorial delimitation - Political (bilateral rel) - Others C. Succession to Treaties: multilateral or regional alliances - Maintaining treaties or re negotiating them or starting from scratch (long complicated process) D. Absorption and Merger - Absorption From 2 states to 1: west+east germany; west germany continued to exist with its rights and obligations, east was absorbed by the west and adopted its r and o, renouncing its own former r and o - Merger: Zanzibar and Tanganyika to Tanzania, they re negotiated all treaties and obligations E. Cession of Territory from a state to another - Surrender treaty or rarely voluntarily or sale Eg Alaska F. Separation of an existing state to form a new state - Austro Hungarian empire: Austria and Hungary 1919 - Finland from USSR in 1918 - Belgium from Netherlands 1930 (created as a buffer state after napoleonic wars) G. Newly Independent States - Follow latin american example: take administrative structure and division and redefine agreements Uti possidetis iuris H. Dissolution of States - USSR, Czechoslovakia I. Human Rights Treaties and State Succession Territory= major component to have a legal personality Terra nullis= land with no sovereign - Land is not terra nullis if its part of the territory of a state even through they have no administrative power over it Territory & Law of the Sea Uti posideties: establishing of borders a. Bilateral agreements - Can be negotiated  b. Multilateral agreements - Cannot be modified as easily Law of the sea: 1. Territorial sea: 12 nautical miles , Within this zone, the coastal state exercises full sovereignty, subject to certain navigation rights for foreign vessels Customary law of the sea: - The right of the flag: ships are under the exclusive jurisdiction of the state whose flag they fly - The right of the port - British Navigation Signalling Language and Code - Right of innocent passage Established by: agreement between fr and br on the British Maritime Rules of Navigation 1848 !! Notes on paper 2. Baseline = level of lowest tide, - Where the 12 nm are calculated from If waters go below the baseline they are INTERNAL WATERS, full jurisdiction over it; only allow the right of the flag customary law 3. Bays 4. Islands 5. Archipelagos 6. Warships on right of innocent passage: - A coastal country can put conditions under which warships can or cannot pass through territorial sea 7. Contiguous zone - Next 12 nautical miles after the territorial sea - The state can exercise SOME jurisdictional rights related to safety and security - Eg border patrols stopping ships in contiguous zone before entering the sea, checking fisheries - SO used as a buffer zone, transition - More rights than in exclusive economic zone 8. Exclusive Economic Zone - Defined in 1982 convention - 200 nm from baseline - Does not have full sovereignty over this zone BUT has some sovereign rights - For the purpose of exploring and exploiting, conserving and managing natural resources (living or non living)  - Does not include the seabed, only above - Can go fishing, can build anything eg artificial islands, structures - If a state builds an artificial island within the Exclusive Economic Zone (EEZ) of another state with the permission of the coastal state, the coastal state retains sovereignty and control over the area, including the artificial island; the constructing state may have operational control over the island, (island doesn't have territorial waters) - Cannot build platforms more than 500 m2 - Continental state cannot arrest or stop ships in this area; Other states can navigate it freely just not exploit it or use it for other purposes - Can allow other states to use it with permission for eg fishing - Continental Shelf: drilling for oil platforms - To build one it needs permission from coastal state - The continental shelf is the extended submerged landmass that stretches beyond a state's territorial sea, extending to a maximum of 200 nautical miles or more from the baseline if certain geological criteria are met. - Sovereign Rights: Coastal states have sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources, including oil, gas, and minerals. - Resources under the seabed, such as hydrocarbons (oil and gas), are the exclusive right of the coastal state. - If coastal bed exceeds eez, need permission from seabed authority + payment Delimitation (no midterm) - If 12 nm of one state go over the 12 nm of another, delimitation needed - Needed to avoid encroachment ( intrusion on a person's territory, rights) - Rule: to leave access to high seas of all countries ( so their passage isnt blocked by another's state TW) - Bilateral process - Fueled by security and strategic reasons, eg Crimea needed by Russia for direct access to Black Sea through Bosphorus International Seabed - Very rich natural resources - Legal term= “the Area” (international seabed under the seas) - The international seabed and its resources are the common heritage of mankind, meaning no individual state can claim sovereignty over it - Exploitation of seabed worsens pollution and endangers marine diversity - International Seabed Authority - ensures that activities in the Area benefit all of humanity and oversees contracts for resource extraction - Concessions only given to states represented by companies to be able to use resources, needing approval by the ISA's Council - Eg china has 3 companies High Seas - areas beyond national jurisdiction where no state has sovereignty  - All states enjoy freedoms: navigation, overflight, and the laying of submarine cables - The high seas are governed by international agreements and customary law - 1958 Geneva Conv High Seas - Bans nuclear tests in high seas - 1982 convention: defined high seas as beyond EEZ but for peaceful purposes, cannot be battlegrounds - Maintains right of the flag (needs a flag to have rights)- ships on the high seas are under the exclusive jurisdiction of the state whose flag they fly - There needs to be a genuine link between state and flag to stop flags of convenience - x Exceptions to jurisdiction of the flag - Hot pursuit: Border patrol can arrest drug trafficking or other ships if the chase begins in territorial waters even if it ends in the high seas - Right of visit : all warships and state ships have exclusive jurisdiction and immunity, subject solely to the laws of their flag state​ - Boat can be stopped if suspicion of slavery and piracy International Straits - = stramtori - Straits are mostly accepted as international waters - Exception: Bosphorus controlled by Turkish govt - States historically controlled straits adjacent to their territory - Construction of International Canals ( from one high sea to another) as Suez and Panama required conventions -> - 1982 Convention UNCLOS - all ships enjoy the right of free passage ; all international straits are free for navigation - States bordering these straits must ensure that navigation is not hampered or suspended - IF connects e high seas or EEZ with the territorial sea of a state, the regime of innocent passage applies, instead of transit passage.(ships can pass through the strait as long as their passage is innocent) Landlocked Countries - Can have fleets eg Switzerland - Have special rights: Transit Right under the law of the sea - Customary law that was transformed into convention - Have assigned transit states through bilateral or regional agreements - Through them they gain access to sea, high seas, station fleets there - Have rights to take specific measures, use facilities eg ports - Equitable access to resources principle: - if coastal states have an excess of resources they must share with landlocked country - Access to high seas and seabed International Tribunal on Law of the Sea  - Dispute settlement for states or companies and IGOs - Cases for midterm: Nottebohm, New zealand, corfu case - Jus cogens State Jurisdiction = a main and explicit exercise of sovereignty Principles of Jurisdiction - Non intervention in the internal affairs of the state - Territorial sovereignty: State decides the law over their territory - (eg other states can’t object to iran using sharia law) - Related to concepts of Nationality, flag Exceptions to Jurisdiction - Immunity - International Public Law vs International Private Law (domestic law) - If there's a conflict between 2 states on applicability of law, Int Public Law decides which jurisdiction will be applicable - They decide in conformity with various principles (lex sitae, lex domicilii, etc) - But the states apply them according to its Int Private Law (domestic laws) Principle of Domestic Jurisdiction - State is SUPREME and ONLY Power BUT Some elements trespass the state: a) Human rights (universal) b) Application of Int Law Practices ( eg delimitations) c) Collective Security i) Concept under the UN Charter, obligation to keep peace and take measures against who don’t Legislative, Executive and Judicial jurisdiction Legislative: Parliament - creates laws - Exercise of people’s sovereignty Executive: - Applies sovereign rights - Enforces jurisdiction within the territory (that was decided by Parliament) Judicial  - Independent from L and E - Applies, Interprets and enforces law - Creates precedents that can become legal practice Civil Jurisdiction - Attitude of states on applying CJ on physical or legal person with international elements - Implication of different CJ systems around the world - Research more!! Criminal Jurisdiction Principles: Territorial - Lotus case: The country of the flag is the rightful one Nationality: acquired through Birth: ius soli (geographically) or ius sanguinis (blood connection) - Nottebohm principle: meaningful connection between a person and a state needed to decide a nationality is predominant over another in the case of dual nationality ( eg properties, years residing, marriage to someone, not just a passport) Passive Personality: states can exercise jurisdiction over nationals of other countries IF they perpetrated a crime against nationals of their own state - Controversial and invasive - Used for nazi criminals for their crimes against jewish Protective Principle: = jurisdiction abroad for acts that put in danger national safety and security - Anti terrorism University of Crimes Against Humanity under International Law - Universal jurisdiction for int crimes - Internationally prohibited crimes against humanity Universal Jurisdiction - Nuremberg Charter of the International Military Tribunal 1945 (legal framework for prosecuting major Nazi war criminals after WWII) - Geneva Convention 1949 ( humanitarian protections for civilians, prisoners of war, and wounded soldiers in times of armed conflict) - Int Law Commission Draft Code of Crimes against Peace and Security 1998 (Proposed a framework defining serious international crimes, such as genocide and crimes against humanity, as threats to global peace.) - Statute of Rome of the ICC 1998 ( Founded the International Criminal Court (ICC) to prosecute individuals for genocide, war crimes, crimes against humanity, and the crime of aggression) Treaties providing Jurisdiction (not crimes against humanity but still prohibited) - UN convention against Torture 1984 - Un convention on Safety of the UN and the Associated Personnel 1994 - various treaties about hijacking of aircraft and vessels ( Tokyo Montreal conventions) Extradition = legal process set in mostly bilateral legal instruments = a state can render to another state a person prosecuted or convicted for a criminal offence in the first state = one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, into the custody of the other's law enforcement. - must be defined as a crime in both states; so judicial systems need to be similar Extraterritorial Jurisdiction A law is effective only on the territory of a state BUT for law to be applicable to a situation, property or person thats located outside the territory of that state, there needs to be a sufficient link between that person(or sp) and the state which enacted the law - Eg voting from abroad - So a state can hold a person/enterprise accountable for actions done outside its territory if the actions are connected to that state - For US doctrine: doesn’t need explicit link but takes into account the effect of the actions on US interests: Effect Related Doctrine - Eg Guantanamo: us holds jurisdiction to hold terrorism suspects but under cuban sovereignty - Israeli extraterritorial approach: mix between effect approach and passive principles Immunities from Jurisdiction X Absolute Sovereignty Theory = the sovereign is completely immune deom foreign jurisdiction in all cases regardless of circumstances Restrictive Theory - Makes a distinction between the function of a state as a sovereign and all the activities of the state  - SO immunity is only given to the sovereign not for its activities to ensure its not over privileged compared to other actors in economic life and no double standard - SO no immunities when: a) State representation and commercial interests of a state i) A state with commercial activity and investments in another state; eg states can be private investors 1) Eg qatar funds el corte ingles, football teams, etc ii) Once the activity of the state is not assigned to the sovereignty of the state, jurisdictional immunities don't apply and the stay is just considered as any actor b) State as a party contractor: supply of services, loans, agreements, guarantees c) Employment contracts d) Torture cases with a state invoHanniballved i) Eg Geneva vs Gaddafi case, although he wasnt swiss he didnt have immunity because it involved torture e) Property issues: a private person giving property to a state through a will , state can be taken to court by other beneficiaries because of it f) European Judicial practice and other regulations like traffic Crimes against community (not midterm) Heads of states (midterm) =Personification of sovereignty of a state SO all heads of states in office have immunity under int law (customary law) - Monarchs: throughout their lives - Other heads of state: depending on the doctrines and their functional limits - Keep immunity for all decisions done in office - Immunity was only when in office EXCEPTION: for crimes against humanity eg genocide war crimes, after office no immunity - Also needs direct forensic proof between the person and the command that effectuated crimes against humanity - - Eg Putin and Netanyahu in ICC - BUT bc of customary law being heads of states in office, states don't take actions against them Waiver of immunity (midterm) - A state can decide not to use its jurisdictional immunity - Needs to be explicit (written and explain what exactly the state renounces) and done by legitimate authority - Can renounce: - immunity before tribunal : go to tribunal but the decision of the tribunal still cannot be applied  - immunity of execution : have to apply consequences of tribunal decision if they lose - European Convention on State Immunity 1972 - UN Convention on Jurisdictional Immunities of States and their Property 2004 - Mostly civil jurisdiction cases