intl law exam outline

8/3/2019 Intl Law Exam Outline

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Sources of International Law1. Primary Sources2. Secondary Sources

Treaties

1. Invaliditya. Coersion

i. Pacta Sunt Servanda doesn t apply to coercionii. VCLT: Article 51 and 52

1. 51 coercion of a representative voidable.2. 52 coercion of a state by threat or use of force treaty is void.

a. Coercion through hostages: depends on how narrowly defineduse of force is in this instance. As the threat against hostages isnot a threat of force against the territorial integrity or politicalindependence of the state, it is unlikely to be coercion.

b. Conflict with Jus Cogensi. VCLT: 53

1. If it conflicts at the time of conclusion with a peremptory norm, it isvoid.

ii. VCLT: 641. Voids future actions happening after a new jus cogens is established.

a. Not held liable or accountable for the actions under the treatybeforehand.

c. Termination or Suspension of Treatiesi. VCLT: 54

1. Conformity with the provisions of the treaty

2. At any time with consent of all signatoriesii. Denunciation or Withdrawal1. VCLT: 56

a. If there is no specific provision, treaty is not subject todenunciation or withdrawal unless it can be established that theparties intended to admit the possibility of denunciation orwithdrawal or a right to do so is implied from the nature of thetreaty.

b. This does not happen often!iii. Termination of a Treaty as a Consequence of Breach

1. VCLT: 60a. Material Breach defined

i. Repudiation of the treaty not sanctioned by the presentconvention; or

ii. The violation of a provision essential to theaccomplishment of the object or purpose of the treaty

b. Treaties weather minor breaches for stability and pacta suntservanda.



a. an equitable principle, has the effect of attempting to containsituations. It is a requirement in the legality of countermeasures.

3. Humanitarian Principlesa. often used as gap fillers when no other positive means of

international law addresses the particular issue.iii. UN General Assembly Resolutions

1. Non-binding authority (except over UN administration)2. 4 Questions

a. Is the language declarative?b. Has it been repeated over time?c. Did it have unanimous support?d. Does it correspond to state practice

iv. Security Council Resolutions1. Even non-member states must comply with resolutions.2. Subject to:

a. The principle of proportionality

b. Text of enumerated powersc. Integrity of international treaties

2. International Legal Personsa. States

i. Characteristics of Statehood (1933 Montevideo Convention Art1)1. Permanent population

a. Not specifically enumerated2. Defined territory

a. Need not be exactly defined so long as the territory isconsistently maintained

3. Government

a.

Stable political organization and authority strong enough toassert itself throughout the territory (leeway once statehood isattained)

4. Capacity to enter into relations with other statesa. Beware of protectorates or puppets of larger powers

ii. Political Existence is independent of recognition by other states (Art 3)1. Right to defend its integrity and independence2. Provide for its conservation and prosperity3. Organize itself as it sees fit4. Legislate upon its interests5. Administer its services6. Define the jurisdiction and competence of its courts

iii. Benefits of Statehood1. Sovereignty over its territory and nationals2. Status as a legal person3. Capacity to join with other states to make international law

b. Recognizing Governmentsi. De Facto Government vs De Jure Government

1. De facto government: in fact controlling all or most of the country



2. De Jure government: legitimate claim to governance but is either inexile or controls only a portion of the country

a. Government in exile: based on the premise that the territoryhad been illegally occupied and that the legitimate governmentwould be restored to power in the foreseeable future

ii. Effective Control Doctrine1. Whether newly formed government has effective control of its state.

a. Degree to which the government commands the obedience of the people within the state.

iii. Estrada Doctrine (Minority)1. Recognition of the government is unnecessary once the state has been

recognized.a. Movement away from recognition of a specific government to a

choice as to whether to enter into diplomatic relations with theState

c. Self-Determinationi. Concept reflected in 3 primary sources:

1. Treaty: UN Charter (Article 1) is the first concrete reference to self-determination in hard law.

a. States have an affirmative obligation to protect and promoteself-determination under the UN Charter.

2. Customary international law3. A general principle of law recognized by civilized nations

a. Minority argue that it has risen to a jus cogensii. An actual definition has yet to be formed.

iii. Secession1. Unilateral only available to:

a. Colonial peoples seeking independence

b.

People subject to alien subjugation, domination, or exploitationoutside of the colonial contextc. People blocked from meaningful exercise of the right to self-

determination internally as a last resort.2. Self-Determination is NOT a Right to Unilateral Secession it is legally

neutral.a. Self-determination has evolved w/in a framework of respect

for the territorial integrity of existing states.3. Effectivity Principle: an illegal act may eventually acquire legal status if,

as a matter of empirical fact, it is recognized on the int l plane.a. However, a subsequent condoning of an initially illegal act does

NOT retroactively create a legal right to engage in the illegalact in the first place.

4. Uti Possidetis Juris ( as you possess )a. Acts as a limitation on the right to self-determinationb. Secession must be done within the colonial boundaries

imposed.i. Redrawing borders would create too much instability

c. Primary aim is to secure respect for territorial boundaries.d. IGO/NGO



i. IGOs formed by states under international law (treaties)1. Stronger international legal personality due to grounding in

international law.ii. NGOs are created by individuals and private interests (IN a state, not by a state)

and formed under national/municipal law.iii. Interpreting International Legal Personality/Capacity

1. Evaluate the constituent instrument (treaty, charter, etc)2. Practice of the organs of the IGO rules of procedure, precedent, etc3. Analyze in view of the background of international organizational law4. The powers in question have to be interpreted in the broader context of

international law as a wholeiv. Interpreting Powers of an IGO

1. Test: relation of the action to the purpose of the IGOv. NGO Legal Personality

1. Only have legal personality in municipal law2. They have lobbying capacity and submit amicus briefs as well as play a

significant role in assisting with collective enforcement efforts and state

compliance.3. They play a consultation role insofar as they provide expertise where it

is needed but may be otherwise lacking.vi. Individuals

1. Classical view: State centrica. Individuals have no interaction with international law.b. 5 Exceptions poke holes

i. Piracyii. Forceful intervention of a state to protect its nationals

iii. Individuals have long been implicated under CIL of state responsibility

iv.

International agreements create rights in individualsand juridical entities against foreign statesv. Large body of international

agreements/custom/national law has long governedtransnational transactions involving private parties

c. Still, state brings claims on behalf of individualsvii. Transnational Corporations

1. Document abuses and accountability2. Market forces are not enough3. Need for binding common benchmarks4. Victim s rights for remedy and reparation5. Inability or failure of host states to hold businesses accountable6. Why human rights standards?7. Power needs to be constrained by law8. What can and what should international law do about the race to the

bottoma. Race to the Bottom: countries lowering the bar further and

further on labor, environmental, compliance, and human rightsregulation in order to attract foreign corporateinvestment/presence.



9. Accountability is a huge problem as many of these companies are nearlyimpossible for a single state, especially developing countries.

10. Voluntary codes of conduct are the ways through which this isaddressed, however it is debatable whether or not voluntary, hencenon-binding, measures are worth anything.

3. International Dispute Settlementa. Definition of Dispute

i. It needs to be capable of resolution through these means. Requires specificityand contestation. PCIJ defines it in the Mavrommatis Case: a disagreement ona point of law or fact, a conflict of legal views or interests between twopersons.

1. A disagreement is not a dispute if its resolution would not have anypractical effect on the relations of the parties.

b. Negotiationsi. Dominant form of dispute resolutionii. Parties maintain control over the process, no third party involved.

iii. Obligation to pursue in good faith and bring to a conclusion

c. Good Officesi. Third party and neutral setting to facilitate an agreement

d. Conciliationi. Third party makes a neutral evaluation of the dispute and makes a

recommendation for resolution that the parties may choose to accepte. Inquiry/Fact Finding

i. impartial third party investigates and renders a reportf. Mediation/Arbitration

i. Mediator is very active between the two parties and pushing/wooing the partiestowards a settlement. More aggressive than Good Offices

ii. Mediation can form flexible solutions that are not otherwise available due to

restrictions of international law.1. Mediation is non-binding2. Arbitration is binding.

g. Big power wants to push for Negotiation (or other non-binding methods). Little powerwants to push to equal the playing field (especially getting them in court if their case isstrong).

4. ICJa. Primary court of the united nations

i. Created by Article 92 of the UN Charter, based in the Hague.ii. Replaced the Permanent Court of International Justice

b. Judge does not have to recues themselves in a case involving their parent statec. Ad hoc judge may be appointed by a party which does not have a judge of their

nationality on the panel if the other party has a judge of their nationality on the panel.d. Contentious Cases (Jurisdiciton)

i. Only states may be partiesii. Consent

1. Mutual Agreement2. Treaty Clause3. Compulsory Jurisdiction via Optional Clause declaration

a. Includes old declarations made to the PCIJ



4. Forum Prorogatuma. Consent implied by conduct, if you respond on the merits

without objecting to jurisdiction, too bad.iii. Reciprocity

1. 36-2, compulsory jurisdictione. Jurisdiction by special agreement

i. Mutual agreement by the parties to submit (as a comp r om is) specifically defineddisputes and questions to the jurisdiction of the ICJ

f. Jurisdiction by Treatyi. As it sounds, it must relate to the object and purpose of the treaty, and the

jurisdictional clause within the treaty.g. Compulsory Jurisdiction under the Optional Clause

i. Reciprocity, you accept the jurisdiction of the ICJ over the below matters withany other states party acceding to a similar optional clause

1. Interpretation of a treaty2. Question of international law3. Existence of any fact which would constitution a breach of an

international obligation4. The nature or extent of the reparation to be made for the breach of an

international obligationii. Reciprocity exists in three ways

1. Jurisdiction exists under the Optional Clause only to the extent thatboth parties have accepted a common commitment

2. Determination of reciprocity takes place only at the moment the Courtis seised of a case

3. Reciprocity applies only to the scope and substance of thecommitments, not to the formal conditions of their creation, duration,or extinction.

h.

Provisional Measures of Protection (Interlocutory Injunctions)i. Article 41 & 421. ICJ has power to order provisional measures to preserve the respective

rights of the parties while the court resolves the merits of the dispute.Prevent the parties from prejudicing the case.

a. Criteria: urgency & irreparable injuryb. Pre-req: prima facie showing of jurisdiction

i. Procedural Problemsi. Non-Appearance (article 53)

1. Court must have jurisdiction2. Court decides on its own taking special care to act with circumspection

ii. Third Party Intervention (article 62)1. ICJ is restrictive in granting this2. Two Situations

a. Third party has an interest of a legal nature in the caseb. Third party is a party to the convention which is before the

courtiii. Counter-claims (article 80)

1. Must be directly connected with the subject-matter of the claim of theother party



2. Must come within the jurisdiction of the court j. Advisory Opinions (article UN 94(2))

i. May give an advisory opinion on any legal question requested by an authorizedbody or in accordance with the UN Charter

1. Must fall within the scope of activities of the body in question2. Must be a legal question

5. International Law and Municipal Lawa. Monoism v Dualism

i. Mono: National and international are the same body of law, International lawtrumps national law.

ii. Dual: national and international law are distinct, separate, and international lawmust be implemented by national law in order to be effective.

b. Critique: Reduces national law issues to issues of sovereigntyc.

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