States, Individuals, International Law and REVIEW

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States, Individuals, International Law and REVIEW

• Lecture 20
• February 27

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ASSIGNMENT

• Monday, March 2
• Midterm, EKLCE 1B20
• Wednesday, March 4 Guest Speaker
• Adjunct Professor David Akerson
• Friday, March 6
• Individuals as subjects of intl law
• The UN and Human Rights Law
• Universal Declaration of Human Rights -at the
  back of our textbook
• - International Covenant on Civil and Political
  Rights
• http//www.unhchr.ch/html/menu3/b/a_ccpr.htm
• - International Covenant on Economic, Social
  and Cultural Rights
• http//www.unhchr.ch/html/menu3/b/a_cescr.htm
• Today
• VI. Individuals and International Law
• Individuals as objects of intl law
• The Nottebohm Case
• REVIEW

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Recognition of states

• Declaratory theory prevailing theory
  recognition only a political move recognition
  not required for the new state to be considered
  legitimate. Recognition merely declares or
  acknowledges the existing fact of statehood.
• Constitutive theory more historic - members of
  the intl community must recognize a state for it
  to establish its de jure intl legal personality

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Criteria of legal secessionKosovo

• Secession external self-determination
• (internal self-determination protection of
  minority rights within a state)
• 1. secessionsts are a people
• 2. state seriously violates their human rights
• 3. no other effective remedies under either
  domestic or international law
• Source http//www.asil.org/insights/2008/02/insig
  hts080229.html
• Kosovo has been recognized by 55 states, 68
  states have said they do not recognize Kosovo.

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Recognition of governments

• Only relevant where there has been an
  unconstitutional change in government - a coup/
  revolution or similar irregular change of govt.
• -Normally Its an internal matter which
  government represents a state.
• -Recognition is a purely political move.
• Recognition of new governments may be lawfully
  withheld or withdrawn

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TINOCO CLAIMS ARBITRATION

• Issue Does a government which asserts control
  throughout the country with the acquiescence of
  the people become a de facto government?

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Kadic v. Karadzic Case

• Issues
• May claims for torture be brought only if the
  torture is official under the Alien Tort Statute?
• Does the customary international law of human
  rights, such as proscription of torture, apply to
  states without distinction between recognized and
  unrecognized States?
• Semblance of official authority is enough

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INDIVIDUALSAs Objects of intl law

• individuals could be objects of state v. state
  litigation.
• State protection and state responsibility
• Limitations
• - only protected by their national states
• - national links extended to corporations
• - leaves nationals open to abuse by their own
  states not practical to imagine a state
  protecting its own natl against itself in intl
  law.

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Nottebohm Case

• 1. Court
• 2. Sources
• 3. Facts
• 4. Issue
• 5. Holding and Decision
• 6. Reasoning
• 7. Significance of case

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Nottebohm Case

• Issue May a state legitimately protect a
  national who doesnt have real and effective ties
  to that state?
• Whether the naturalization thus granted could be
  validly invoked against Guatemala and therefore
  entitled L. to seise the Court of a claim
  relating to him.

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STUDY SHEET I

• NOT an exhaustive list of what you have to know
  so pay attention to all you have in your notes
  CASES!!! ALWAYS USE PROVISIONS FROM THE TREATIES
  where applicable
• LIMITED OPEN BOOK EXAM ONLY TEXTBOOK TREATIES
  (downloaded) chart of UN system - you cannot
  bring your notes
•  

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I.Intl law definition II.Sources 1.Treaties

• I. International Law - definition, subjects. How
  it differs from municipal law.II. Sources of
  International Law - definitions examples
  from cases.
• 1. Treaties- definition of a treaty binding
  agreement between....governed by- types
  bilateral, multilateral
• - steps in the adoption of a treaty you have to
  be able to list the steps, togive a brief
  explanation of the steps and you have to be able
  to recognize thesteps in a treaty
• - reservations to a treaty what are they what
  are their limitations?...

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2. Customary International Law

• - definition - how did it come into being, what
  is it, for whom is it binding...- examples of
  cases that make reference to customs
• - persistent objector definition
• - jus cogens definition...

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3. General principles of law recognized by
civilized nations

• - where do they come from, examples of general
  principles - ex. of cases that make reference to
  them
• - what is equity

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• 4. Judicial decisions and teachings of publicists
• definition
• - no stare decisis
• 5. Soft law
• - definition
• - UN General Assembly Resolutions what value do
  they have?
• - Other UN Resolutions

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III. International law and municipal law

• - Monism/dualism
• - self-executing treaties
• - US hierarchy US Constitution at the top
• - Treaty federal law - gt executive
  agreement - gtstate law/ policy
• - Latter-in-time prevails as between treaty and
  federal law

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IV. State responsibility

• ILC Draft on State Responsibility (to a large
  extent treated as if it reflects customary
  international law)
• http//untreaty.un.org/ilc/texts/instruments/engli
  sh/draft20articles/9_6_2001.pdf
• for breach of an intl oblig. customary intl
  law or treaties the responsible state has to
  make reparations or give satisfaction for the
  breach to the injured state.
• - Precluding wrongfulness
• consent Art.20 (entry of foreign troops into
  the territory of another state) force majeur
  Art 23 (unforseen external event ship in
  emergency enters foreign dock I a storm w/o
  consent) distress- Art.24 (situation of extreme
  peril could fulfill obligations, but would
  result in death Rainbow Warrior) state of
  necessity Art.25 (only means of safeguarding an
  essential interest of the state existence of
  the state Gabcikovo-Nagymaros case)
  self-defense- Art.21 counter-measures Art.22

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• Reparations Restitution, Compensation,
  Satisfaction ILC Draft Art.34-37
• Bringing a claim for state responsibility can
  bring the claim to the ICJ or arbitration

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V. International Dispute Settlement

• - Arbitration
• - ICJ adjudication who can bring a claim - how
  does the ICJ get jurisdiction over a case
• 1) ICJ Stat. Art. 36(1) special agreement, 2)
  compromissory clause in a treaty (Diplomatic and
  Consular Staff case), 3) declaration compulsory
  jurisdiction of the Court

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VI. States and International law

• - Sovereignty definition the exclusive right
  of a state to govern the affairs of its
  inhabitants and to be free from external control
  independent, not subordinate to any other
  authority - autonomous
• - Statehood definition 4 requirements
  Montevideo Conv. permanent pop, defined terr,
  govt, capacity to enter into relations with
  other states.
• - Recognition of states theories
• declaratory theory- recognition purely a
  political move, constitutive theory state must
  be recognized by other states
• Recogn govt Tinoco Claims case

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VII. Individuals and international Law

• - Individuals as Objects of international law
• Nottebohm case

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VIII. Define terms

• - pacta sunt servanda- lege lata/lege ferenda-
  opinio juris- res judicata- soft law/hard law-
  jus cogens
• - Sovereignty definition what provision in
  the UN Charter reinforces the concept?
•