International Law

HideShow resource information
What makes states states?
Signifies membership of the ‘international community’ States have monopoly over the use of force in their respective jurisdictions States create the laws which apply in their respective jurisdictions States accrue international obligations
1 of 27
Peace of Westphalia and Beyond
Notion of ‘the State’ as inhering in a given territory and population Westphalian understanding of sovereignty: a community of States each of equal standing and with sole authority within their respective territories Growing understanding of the Stat
2 of 27
Montevideo Convention on the Rights and Duties of States 1933 (what makes a state today)
Article 1 The State as a person of international law should possess the following qualifications: A permanent population A defined territory Government Capacity to enter relations with other States The “declaratory theory of statehood”
3 of 27
Recognition of States
Surely the crucial question is: do other States recognise the given entity as a State? The “constitutive theory of statehood” – Statehood being granted by other States
4 of 27
Somaliland example?
Somaliland has all the apparent requirements to satisfy declaratory theory, but is not formally recognised at all
5 of 27
Abkhazia example?
Abkhazia has all the apparent requirements to satisfy declaratory theory, but only recognised by four other States
6 of 27
East Timor example?
East Timor did not have the apparent requirements to satisfy declaratory theory, but universally recognised as a State
7 of 27
Why do States recognise some entities as States and not others?
Surely realpolitik plays a role (Abkhazia) as does preventing disintegration of States (Somaliland) But likewise, democracy and human rights also seem to have a role (East Timor)
8 of 27
Principle of Effectiveness
International law should not recognise fictions, but reality: only situations which are ‘effective’ should produce legal consequences A State can only be a State if it has ‘effective’ control over territory and population
9 of 27
Self-determination: Nationalism (SD v.1)
Emerged in the 19th Century in the national unification movements in Germany and Italy Conceived of the idea that the nation and the State should be as one – the perfect society as homogenous
10 of 27
Self-determination: ‘Civic Republicanism’ (SD v.2)
Kantian tradition Self-determination as representative self-governance (the population of any given territory determining its own destiny)
11 of 27
What is an internationally wrongful Act? (State Responsibility)
A violation of an international obligation applicable to and binding on the relevant State But not all claims against States regard violations of international obligations NML Capital Ltd et al v The Republic of Argentina 727 F.3d 230 (2nd Cir 2013)
12 of 27
Attribution of conduct (not by state?)
We are interested in breaches of international law committed by a State, not individuals But there is no such thing as the State This means, internationally wrongful acts are committed by officials of States, which are then attributable to the state
13 of 27
Ultra vires acts of State officials - Caire (France v Mexico)
Murder of a French national by Mexican soldiers attributable to Mexico because the soldiers were acting as competent officials or organs of the State
14 of 27
Ultra vires acts of State officials - Youmans (USA v Mexico)
Murder of US citizens by a mob was attributable to Mexico because it was enabled by Mexican soldiers under the immediate supervision of an officer
15 of 27
Defences - Listed in Articles on State Responsibility, Chapter V of Part One
Consent (Article 26) Self-defence (Article 21) Force majeure (Article 23) Distress and necessity (Article 24) Countermeasures (Article 22) There are no defences to a violation of a peremptory norm (jus cogens)
16 of 27
Consent?
Request or permission from State A precludes the requested act or omission of State B being a wrongful act
17 of 27
Self-Defence?
Some prohibitions may be overridden for a State acting in self-defence in compliance with Article 51 of the UN Charter
18 of 27
Force Majeure
Standard of proof is very high (Case Concerning the Payment of Various Serbian Loans Issued in France PCIJ Series A, No. 20, 1929)
19 of 27
Distress and Necessity?
Extreme circumstances excusing conduct that would otherwise be prohibited Distress: no other reasonable way of saving lives except to engage in prohibited conduct Necessity: the act in question was the only means of safeguarding an essential interest
20 of 27
Distress Requirements?
The requirements for the defence of distress put forward in Rainbow Warrior: Existence of exceptional circumstances Re-establishment of the original situation as soon as the reasons for emergency had disappeared Good faith
21 of 27
Counter-measures?
Counter-measures taken by a State in response to an internationally wrongful act of another State are not wrongful acts
22 of 27
Counter-measure conditions (from the Gabčívoko-Nagymaros Project)
Must be done in response to a wrongful act Injured State must have called for discontinuation or reparation beforehand Effect must be commensurate with the injury suffered Purpose must be to induce the wrongdoing State to comply (i.e. must be reversi
23 of 27
Erga Omnes obligations?
Ordinarily only injured States may invoke State responsibility However, States may owe some obligations to the entire international community (they are owed ‘erga omnes’) and hence any State could invoke State responsibility for breach
24 of 27
Consequences of Wrongful acts? Obligation of reparation (Article 29)
Obligation to provide a remedy for a breach The obligation does not disappear and continues to bind the responsible State
25 of 27
Consequences of Wrongful acts? Obligation of cessation (Article 30)
Obligation to bring a continuing wrongful act to an end
26 of 27
What constitutes appropriate remedy?
Typically restitution is preferred (i.e. the consequences of the wrongful act are remedied and the status quo is re-established) But many disputes have a symbolic resolution Bosnia v Serbia
27 of 27

Other cards in this set

Card 2

Front

Peace of Westphalia and Beyond

Back

Notion of ‘the State’ as inhering in a given territory and population Westphalian understanding of sovereignty: a community of States each of equal standing and with sole authority within their respective territories Growing understanding of the Stat

Card 3

Front

Montevideo Convention on the Rights and Duties of States 1933 (what makes a state today)

Back

Preview of the front of card 3

Card 4

Front

Recognition of States

Back

Preview of the front of card 4

Card 5

Front

Somaliland example?

Back

Preview of the front of card 5
View more cards

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Statehood & Sovereignty resources »