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Criteria Montevideo article 1
a) Permanent population ( size does not matter) b) A defined territory (size doesn’t matter as long as authorities control over an undisputed area) c) a government (form of government does not matter as long as it effectively exercises control over the area) d) capacity to enter relations with other states ( means legal relations not political and the ability to act without legal interference of another state) Recognition? Declatory view holds it is not necessary Constitutive view holds it is necessary as a criteria Art.3 of the Montevideo criteria holds recognitions is not a prerequisite States
- most important actors in international law
- due to sovereignty, states need to consent to every treaty and accept each customary law
Creation of states External self determination People have the right to determine their political status and pursue their social, economic and cultural development. Stated in Art 1 of the UN charter and art 1 of 1966 UN covenant on Human Rights Internal – autonomy External- option of seceding Seceed from mother state International stability is in favor of keeping the mother state intact Safeguard clause – 1970’s general assembly Declaration on Friendly Relations
Remedial seccession (human rights law violated) is hard to put into practice New territory a) purchase territory from another state through cession b) by accretion in which new land is created by nature ( does not cover violent changes such as storms, this is called avulsion, the opposite of accretion is erosion in which land disappears through nature) c) obtain title over land than never belonged to anyone ( terra nullius) d) area that is not subject to any legal title, called res communis such as the high seas) Immunity State immunity Is a procedural bar derived from the principle of state sovereign equality, one state cannot sit in judgement of another (per in parem non habet imperium) 2004 Convention on Jurisdictional Immunities of States (codifies customary law)
- Art 5. Enjoy immunity from courts of other states
- Art10. Cannot invoke immunity in commercial transactions
- Art 12. They can be sued for pecuniary compensation
- Art 19 & 20. Immunity from constraint must be treated separately from adjudication Restrictive Distinguishes between jure imperii ( sovereign acts which are immune) and jure gestionis ( commercial acts which are not immune) Representatives Arrest Warrant case art 61 a) Personal immunity ( house of government) b) Functional immunity ( official acts performed by a state representative on behalf of the state) Diplomatic 1961 Vienna Convention on Diplomatic Relations (VCDR)
- Art 9. Persona non grata: a host state may notify that a diplomat is no longer welcome
- Art 22: premise of mission are inviolable, host state agents may not enter without consent
- Art 27: diplomatic bag shall not be opened or detained
- Art 10: insurrectional movement becomes a new government
- Art 11: conduct it subsequently acknowledges (Tehran case) Consequences of these wrongful acts are:
- Art 30: cease the wrongful conduct and offer assurances of non- repetition
- Art 31: full reparation for injury caused
- Art 34: forms of reparation, a) Restitution ( re establishing original situation) b) Compensation (financially assessable damage) c) Satisfaction ( acknowledgement of breach + apology) Basic principles - Art 1: every wrongful act of a state entails international responsibility
- Art 2: conduct must be a breach of an international obligation+ must be attributable to the state
- Art 3: a state cannot justify a breach invoking its national laws
- Art 12: a breach is when its performance is not in conformity of an international obligation Other states Arts 16- 18 specify situations where a state aids another in the wrongful act Invocation of responsibility:
- Art 42: usually by injured state
- Art 48: other states may invoke if its concerns a collective interest Precluding wrongfulness Art 20: consent Art 19: self defense Art 22: Counter- measures Art 23: force majeure Art 24: distress Art 25: necessity Art 26: no circumstances justify a breach of a jus cogens law Human rights
1966 International Covenant on Civil and Political rights Negative rights
- Human dignity
- Freedom ( intellectual and physical)
- Equality & non-discrimination
- Justice & fairness
- Political participation 1966 International Covenant on Economic and Social rights Positive rights Work and health State must play a role to fulfil these rights Abstract terms Collective rights Protection of groups of individuals eg. Minorities United Nations organs Has 194 members The most important international organization General Assembly Discusses and make recommendations on all matters Every UN member state has a member Arts 10- 15 Security Council Maintaining security and peace Composed of 15 members 5 members are permanent having veto power ( China, Russia, USA, UK and France Arts 23- 26 Secretariat Headed by Secretary General Selected for a term of 5 years Arts 97- 99 Economic and Social Council Became the Human rights Comission then the Human Rights Council Can demand periodic review of member states
Customary law 1. Followed as a general practice between states (objective element), requires consistency, duration and generality
- Accepted by those states as legally binding (subjective element), relevant when practice stems from motivation unrelated to law and when a state acts contrary to an existing customary rule General principle Used for legal answers that cannot be found in domestic law (gap filler) Also uses good faith and equity Judicial decisions Subsidiary sources of law Art 59 states it is only binding on the parties involved ICJ’s courts decision are only law-identifying they may however adopt provisional measures Treaties – laid down in the 1969 Vienna Convention on the Law of Treaties Concept Legal rights and obligations Arts 3,34, 26,27 VCLT and 102 of the UN charter Conclusion of contract Not every state official has the authority to conclude a contract Arts 6-8 and 46 Consent States need to consent to a treaty for it to be legally binding Arts 11, Validity A treaty may be found invalid under the VCLT Arts 48- 53 and 64 Reservations These are unilateral statements used to exclude or modify the legal effect of certain provision Arts 19-20 = how Arts 21 and 24= the legal consequence Interpretation Arts 31- 33 Termination or withdrawal Arts 54,56,60-62 and 70- 72 *these articles will be explained in my provisions list in detail
Disputes Peaceful settlement Fundamental principle of modern international law UN charter arts 2(3) and 33 Non judicatory Diplomatic methods where the parties retain control of outcome through negotiation or inquiry, mediation and conciliation involving a third party Arbitration Settlement of disputes between states is decided by judges of their own choice and is legally binding on the parties ICJ ICJ Access and Jurisdiction The court has competence of a legal dispute only when it exists at the same time the application is filled Art 34 – only states may be parties Art 35 - outlines the conditions Art 36 – expresses the need of consent from states Powers of effect and decisions Art 41- indicate provisional measures Art 59- has no binding effect Art 60- judgement is final and without appeal UN Charter art 94- obliges member states to comply with the decisions of the ICJ Advisory opinions UN charter art 96 – authorizes GA or SC to request an advisory opinion ICJ art 65- courts can give advisory opinions Use of force Prohibition Threshold of force usually interpreted as military interference, art 2(4) is called the cornerstone
