States, Individuals, International Law and REVIEW

1. States, Individuals, International Law and REVIEW Lecture 20 February 27

2. 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

3. 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

4. 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/insights080229.html Kosovo has been recognized by 55 states, 68 states have said they do not recognize Kosovo.

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 • Recognition of new governments may be lawfully withheld or withdrawn

6. TINOCO CLAIMS ARBITRATION • Issue: Does a government which asserts control throughout the country with the acquiescence of the people become a de facto government?

7. 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

8. 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.

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

10. Nottebohm Case • Issue: May a state legitimately protect a national who doesn’t 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.

11. 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

12. 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?...

13. 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...

14. 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

15. 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

16. III. International law and municipal law • - Monism/dualism • - self-executing treaties • - US hierarchy – US Constitution at the top • - Treaty = federal law - > executive agreement - >state law/ policy • - Latter-in-time prevails as between treaty and federal law

17. 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/english/draft%20articles/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

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

19. 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

20. 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, gov’t, 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 gov’t – Tinoco Claims case

21. VII. Individuals and international Law - Individuals as Objects of international law – Nottebohm case

22. 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?