INTERNATIONAL LAW JOHNSON FALL 2014
1. SOURCES OF INTERNATIONAL LAW
a. Treaties
b. Customary Int’l law
i. Norms, behavior of states, traditional customs
c. General Principles
i. Principles of law found in domestic law
1. Principle of causation
2. Validity of fraud
ii. So common in domestic law, they rise to Int’l law
d. Other Influential sources
i. Decisions of tribunals
ii. Writings of scholars
e. Important events that have developed IL
i. Treaty of Westphalia: state autonomy established
ii. World War I and II: established UN and other IL organizations
iii. The Cold War: spread commitment to democracy
iv. End of Colonialism: Grew less-developed nations, fueled civil wars
v. Post 9/11: idea that separate autonomous entities do not work in IL context
2. STATEHOOD
a. Criteria to recognize statehood – Montevideo Convention
i. Permanent Population
ii. Defined territory
1. An entity has the ability to fulfill the defined territory requisite even if it’s borders are disputed and even if part of its territory is claimed by another entity
a. Kosovo Advisory Opinion, ICJ, 2010
iii. Government
iv. Capacity to enter into relations with other states
v. Independence (Recognized by most but not listed in Montevideo Convention)
1. Competing view takes it that the four criteria are necessary for statehood but not enough unless you have ‘acceptance’ by other states that results into independence of the entity
a. Ex: Estonia
i. Family of nations interacted with the Soviet Union in regards to the region known as Estonia
ii. Shows they lacked acceptance by family of nations and were not ‘independent’ thus failing to fulfill statehood requirements
b. Admission into UN is acknowledgment by the U.N. that the entity has fulfilled the requirements of statehood – non-participation does not preclude statehood
3. SOVEREIGNTY
a. Definition
i. Authority that is legitimate
1. Proscribed by law
ii. Supreme authority
1. The state, however constituted, has authority over its territory and citizens
iii. Territoriality
1. Location of population within borders of territory not by kinship or popular beliefs
b. As a matter of IL, even customary IL, is not binding upon a state unless there is consent form the state to be bound. Silence can be evidence of consent. For customary, need express statement.
c. State that exercises authority over area has claim that it is within sovereign territory
i. Island of Palmas
1. Territorial dispute over island of Palmas between Netherlands and the U.S.
a. Netherlands had a claim of sovereignty over the island, since they had actually executed authority over it for nearly 200 years, even though Spain had ceded the territory to the U.S. in Treaty of Paris, 1898.
d. Territorial Integrity
i. UN Charter
1. Art. 2
a. (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 manner inconsistent with the Purposes of the UN
ii. Declaration on Principles of IL Concerning Friendly Relations, UN Dec. 2625
1. All states enjoy sovereign equality, including the following elements
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 independence of the State are inviolable
e. Each State has the right freely to choose and develop its political, social, economic, and cultural systems
f. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.
iii. Within its territory a state has authority to exercise its jurisdiction without adhering to any international law that allows it to do so. Unless international law strictly prohibits from doing so.
1. S.S. Lotus Case (Fr. v. Turkey) PCIJ, 1927
a. No rule of IL that prohibits a state from exercising criminal jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction
i. Both states may exercise concurrent jurisdiction
b. That which is not expressly prohibited is permitted
iv. Corfu Channel Case, ICJ
1. UK violated Albania’s sovereignty by passing through the channel and by conducting the minesweeping operation in Albania’s waters
e. Jurisdiction
i. Blackmer v. US, SC 1932
1. State has
of the UN undertakes to comply with the decision of the ICJ in any case in which it’s a party. If a party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Sec. Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment
iii. Protection of Aliens
1. Certain human rights universally guaranteed to aliens, identified as general principles of IL
a. Recognition of the alien’s juridical personality
b. Respect for life and physical integrity
c. Personal and spiritual liberty within socially bearable limits
d. Afforded no political rights
e. Duty, in economic sphere, of non-discrimination among categories of aliens where they were allowed to engage in commercial activity
2. These are rights of national states, enforced at their discretion under rules of diplomatic protection and Int’l arbitration
a. In case of breach of this obligation, alien’s country can bring claim against offending state – Right of diplomatic protection
3. Roberts v. Mexican States, General Claims Commission – Arbitration
a. Test for improper imprisonment
i. Whether aliens are treated in accordance with ordinary standards of civilization
b. Mexico in violation of improper imprisonment and cruel and inhumane treatment for keeping US citizen, charged with assault, in jail for over a year (violated Mexican Const.) without trial and cruel treatment
iv. Prevention of Environmental Harm to Other States
1. Trail Smelter Arbitration
a. No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.