Int't law.txt

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Int't law.txt
2014-01-27 06:14:50
int law class

int law1
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  1. why is international law important
    • regulates international trade
    • peaceful settlement of disputes
    • regulates civil aviation
    • establishes state liability for break int' I law
    • protects human rights
  2. definition of public international law
    a legal framework that regulates the exercise of public authority in the international community
  3. legally binding is____
    the capacity of a provision to alter the rights and duties of subjects of international law
  4. function of international law
    • protect interests of states
    • protect interests of The international community referred to in Article 53 of the Vienna Convention on the Law Of Treaties
  5. The effectiveness at public international law
    • why ineffective: absence at ultimate authority, problems of enforceability, lack of legitimacy , difference in power among states
    • to improve: entorcement by states (political pressure, sanctions, countermeasures) , functional unity between national and international law , the establishment of international organizations
  6. the process by which the rules of public international law emerge
    • public international law governs relations between independent states → the rules of law binding states therefore emanate from their own free will
    • → its voluntary (see Lotus holding that the consent of states is the basis for international law
  7. sources of international law
    • from Article 38 § 1 Statute of the International Court of Justice: customs, treaties, judicial opinions, general principles of law, doctrines
    • not listed in 38 § 1 decisions of international organizations,unilateral declarations and national decisions
  8. customs
    • evidence of a general practice accepted as law
    • Consists of: material fact,(what the state practice is) AND subjective belief That practice constitutes law
    • material fact = actual conduct of states, claims, practices with a constant and uniform usage (no particular duration required and practice should be general)
    • subjective: extensive and virtually uniform acceptance
  9. for a state practice to be a custom:______
    • - it Must be consistent, uniform and constant , (see North Sea Continental shelf: practice must be extensive AND virtually uniform .
    • - not necessary that state practice be in absolute rigorous conformity with customary rule, being consistent with custom is sufficient (Nicaragua)
  10. customs are binding for _____
    • -all subjects of international law
    • *** BUT a state opposing a custom from its inception is not bound by it (ICJ Anglo-Norwegian fisheries)
  11. humanitarian intervention and international law
    • no right to humanitarian intervention exists under international law
    • - prohibited by 1970 UN Friendly Relations Declaration
    • - The use of force is unacceptable to monitor and ensure respect for human rights (see Nicaragua)
  12. jus cogens
    • doctrine that preemptory rules of international customary law cannot be derogated from by treaties
    • rules binding for all states and all subjects Of international law
    • include: prohibition of the: Use of force, colonialism, race discriminaltibn, slavery, genocide, torture; freedom of The seas, the right to self-determination ,and the sovereign equality among states
  13. a treaty is
    see Art-(l) (a) Vienna Convention on the Law of treaties

    • a written agreement concluded between international legal persons recognized as having treaty making powers
    • armed opposition groups do not have international legal personality for The purpose Of concluding treaties *

    * * liberation movements formed during colonial domination Or foreign occupation have treaty making Powers
  14. treaties produce legal effect only Upon:
    - The parties to treaties (signatories) sec ICJ , the Genocide case
  15. legal force of treaties
    • Art 26 Vienna Convention: every treaty in force is binding upon its parties and must be performed in good faith
    • Article 34: no legal effect upon non contracting parties ie 3rd states without Their consent
    • treaty articles that codify customary law apply to all subjects of International law
  16. lack of hierarchy b/w int't treaties
    • a state may not invoke its International treaty obligation
    • justification for its failure to perform a treaty EXCEPT Arts. 351 TFEV 103 UN Charter
  17. general principles of law
    • - principles originating in national legal systems and common to them
    • i-e good faith Art 2 (2) of the UN charter; proportionality and necessity; equality
  18. international law relationship W/ national law
    • - national law may serve as evidence of facts or state practice before int' tribunals
    • -when a binding international obligation exists for a state it must fulfill That Obligation irrespective of whether its national law permits it to do so or forbids it (art 27 Vienna convention in the law of treaties
    • -art 46
  19. international legal personality is
    • The ability to act within the system of international law
    • the ability to possess rights enforceable under international law and to be subject to duties
    • personality is relative and varies with circumstances
    • cannot be established by a national law
    • established through practice
    • entities without intl legal personality cannot be held responsible for a breach since no rights and duties under I law
  20. specific characterics for intl legal personalities
    • ability to make claims before intl tribunals
    • possibility of hosting beats of duties under international law liable for violating their intl legal responsibilities
    • subject to Int'l legal obligations
    • capacity to contributer to into decisions
    • ability to enter intl agreements
  21. The subjects of international law are:
    • States
    • intl government orgs
    • individuals
    • multinational companies
    • armed opposition groups
    • National minorities and indigenous people
    • **all but States hv intl personality only to extent that states allow it
  22. States and intl legal personality
    • full and unlimited legal personality (icj reparations for injuries)
    • state organs, regional, local entities no inyl legal personality (La Grand) unless I national Constutution determines otherwise
  23. sovereignty
    • a state does not need to recognize or be subjected to any other authority above it
    • → prohibition ot interference
    • -"each state is permitted to decide freely " On The choice a its political economic social i cultural system (see Nicaragua)
  24. legal characteristics of states
    • capacity o enter legal relationships at intl level
    • exclusive jurisdiction re. intl affairs
    • sovereign equality
  25. crireria of statehood
    • territory
    • population
    • effective control byba b govg
    • enter intl relations
  26. effective exercise of powers
    • must be able to exercise authority over population and territory
    • approval of central authority crucial
    • an established state does not list is statehood when it cars to have an effective government
    • a a state is failing if it is not capable of ensuring monopoly of use of force and cannot exercise public and functions and international legal
  27. principles guiding emergence change and extinction of states
    • effectiveness
    • legality
    • recognition
    • self determination
  28. Recognition
    • The acceptance of the status of the state live in the international community and the acknowledgement of its rights and obligations under international law
    • It can be implicit or explicit
    • International love contains no obligation to recognize an entity when it meets the criteria only and negative duty not to recognize when all criteria not met
  29. Legality
    The duty of non recognition calling international law prohibits the recognition of states which came into being as a result of the violation of prempt norm of eneral international law; there is the obligations not to recognize legal situation with was brought about by elation of international law Seec (wall case)
  30. Democratic legitimacy and the recognition of states
    • The 1991 European Union declaration on the guidelines on the recognition of new states in Eastern Europe state that the EU will recognize only states this region what you have a democratic constitution
    • see also un commission on human rights

    but democracy not considered to be essential of statehood inn international law
  31. effect of recognition
    • At international level a non recognized state is bound by international law
    • states cannot have diplomatic relations with states that do not recognize them
    • States cannot conclude treaties with States that do not recognize them

    • at National level a national judge may or may not be obliged to follow decision of the executive
    • re . The non recognition of a particular state
  32. The recognition of right to self-determination
    All people have the right of self-determination by virtue of that right they freely determine their political status see article one of the International Covenant civil and political rights
  33. forms of self determination
    • internal: people's pursuit of its economic social and cultural development within a state
    • external: takes form of right to unilateral secession

    • intl law neither prohibits nor give right to seccesion
    • in practice states don't support secession as basis at right to Self determination