International law take home exam, The exam is attached, all the instructions are attached below you just have to key word the questions, If u take anything from the slides make sure you add the chapter and slide number, also there is 4 short questions at
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20190415200017chpt_3_fundamental_principles.pptxThe Fundamental Principles Governing International Relations
Chpt 3 Cassese
What is the purpose of this chapter?
What is a principle in International Relations?
Principles serve as the pinnacle of the legal system
Serve as basic guidelines for interaction b/w states
3.2
What is the first principle?
Sovereign Equality of States
Where is this principle codified, written?
Article 2.1 of UN Charter
“sovereign equality of all its Members”
Later extended to all states, even non-member of UN
Fundamental principle which all IR rest
Sovereignty
What is Sovereignty?
The power to wield authority over all individuals living in a territory
How is sovereignty related to jurisdiction?
It is the power of central authorities to exercise public functions over individuals located in their territory
Sovereignty
What are the three types of jurisdictions of a state, as discussed by Cassese?
Jurisdiction to prescribe
Jurisdiction to adjudicate
Jurisdiction to enforce
Sovereignty
What is the prescriptive jurisdiction?
Power to make laws,
pass binding legislation over people w/in their territory, or their nationals abroad
Conduct abroad that is prejudicial to a state…conduct of foreigners against your state such as counterfeiting money, production/trafficking of drugs
Sovereignty
What is the jurisdiction to adjudicate?
Power to hear/bring to trial a legal dispute
Gives power to national courts for disputes that occur in their territory
Protective principle allows courts jurisdiction over acts that occurred abroad, but infringe or seriously affect a national interest
Sovereignty
What is the jurisdiction to enforce?
Power to enforce the law
Normally confined to acts committed on one’s territory
Sovereignty
What did the PCIJ say in Lotus (Permanent Court of International Justice)?
Jurisdiction to enforce “cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention”
What does this mean?
Sovereignty
Can you explain what happened in US v. Alvarez-Machain? Footnote pg 50
Sovereignty
Other aspects of powers granted by the principle of sovereignty?
2) Power to freely use and dispose of the territory under the State’s jurisdiction and perform all activities deemed necessary for or beneficial to the population living there.
Can you think of examples of when the international community may want to violate this principle?
Sovereignty
Other aspects of powers granted by the principle of sovereignty?
3)The right that no other State can intrude in another State’s territory….by private individuals or agents of the state
Eichmann case 1960?
Sovereignty
Other aspects of powers granted by the principle of sovereignty?
4)Right to immunity from the jurisdiction of foreign courts for acts performed by State in its sovereign capacity
5)Right to immunity for State Representatives acting in their official capacity (functional immunity)
6)Right to respect for life and property of the State’s nationals and State officials abroad
3.2 Sovereign Equality of States
What is the principle of legal equality?
No member of the international community can be placed at a disadvantage
All are equal, on the same footing
No matter their size or strength
3.3
What is the next fundamental principle guiding international relations?
Non-intervention in the internal or external affairs of other states
3.3 Non-Intervention in the Internal or External Affairs of other States
What does this mean?
It prohibits States from interfering in the internal organization of a foreign State.
Non-Intervention in the Internal or External Affairs of other States
Can you think of any examples Cassese gave for non-intervention? Things States cannot do?
Interfere in the functions of other State’s legislatures, enforcement agencies, or courts
So can States interfere in the relations b/w foreign government authorities and their own nationals abroad?
NO
When asked what the British gov’t is doing to assist British citizens held for crimes in foreign nations
“International law does not allow the FCO (Foreign and Commonwealth Office) to interfere in the judicial procedures of other sovereign States, just as we would not tolerate other countries interfering in our own judicial procedures. The FCO therefore cannot intervene in the trials of British nationals overseas. However, the FCO will do everything it can to ensure that such nationals have access to legal representation, and insist that they are treated as well as nationals of the countries concerned”
British Minister of State for the FCO, 1999
Non-Intervention in the Internal or External Affairs of other States
Can you think of any examples Cassese gave for non-intervention? Things States cannot do?
States must refrain from instigating, organizing, or officially supporting the organization on their territory of activities prejudicial (harmful/against) to foreign countries
CAVEAT—does not prohibit subversive activity against foreign States carried out by private persons w/out State involvement
Non-Intervention in the Internal or External Affairs of other States
How might a State try to enforce compliance with this rule?
Expulsion of foreigners who take advantage of asylum granted to them
Imposition of restrictions trafficking of arms
Prohibition against the creation of armed bands
If Civil War breaks out in a foreign country, States are duty-bound to refrain from assisting insurgents…unless they qualify as a liberation movement
Non-Intervention in the Internal or External Affairs of other States
What about measures taken by states that are indirect methods of interference are these prohibited? Economic pressure; instigating, fomenting, and financing unrest in a foreign country?
Only measures designed ‘to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind’ run counter to the principle of non-interference (Principle III of UN Declaration of 1970)
3.4
What is the next principle?
Prohibition of the Threat or Use of Force?
Prohibition of the Threat or Use of Force?
Where does this principle come from?
UN Charter (Article 2.4) link
Why was this principle adopted by the international community?
1945—Post WWI and WWII
Development of nuclear weapon
Agreed to limit sovereignty, in order to ensure mutual obligation to refrain from use of force
Prohibition of the Threat or Use of Force?
The ban on the threat and use of force is banned in all circumstances except for those provided by the UN Charter. What are these exceptions?
Collective Security
Self-defense
Enforcement by regional agencies
Does it apply to all States or just members of the UN?
All States (UN members and nonmembers)
Prohibition of the Threat or Use of Force?
Other restrictions/limitations on threat or use of force?
Only military force is proscribed…does not prohibit economic measures that are meant to cause harm to another State
Only threat or use of force in interstate relations was banned….allowed intrastate force
What does this mean?
Prohibition on the Threat or Use of Force
Developments post WWII on threat or use of force
Wars of National Liberation (in colonial territories under foreign occupation, or under racist regimes). Under existing international law the Powers against which liberation wars were begin waged were allowed to use force to quell liberation movements
Prohibition on the Threat or Use of Force
Developments post WWII on threat or use of force
“Powerful states have increasingly used economic coercion to subjugate developing countries” pg 56
Through war some powerful states were able to take lands—1967 Israel Palestinian Conflict
So,1970 Declaration on Friendly Relations and 1974 Declaration on the Definition of Aggression were UNGA adopted to fix some of these situations
Prohibition on the Threat or Use of Force
What are these updates on the principle found on pg 57
1) threat or use of force must not be used against a)States or b)peoples having a representative organization (national liberation movements entitled to self-determination (colonial peoples, peoples under foreign occupation or under racist regimes)
Prohibition on the Threat or Use of Force
What are these updates on the principle found on pg 57
2) 1986 ICJ Nicaragua— ‘assistance to rebels in the form of the provisions of weapons or logistical or other support’ may be regarded as a threat or use of force; however, it does not amount to an armed attack and thus the victimized State is NOT entitled to individual or collective self-defence
Prohibition on the Threat or Use of Force
What are these updates on the principle found on pg 57
3) anticipatory self-defence must not be used; preemptive attack forestalling an imminent attack
4) force in self-defence may not be used to repel an indirect armed aggression
5) the territory belonging to another State may not be the ‘object of acquisition by another State resulting from the threat or the use of force’. Conquest does not transfer legal title, and all other states are enjoined to withhold recognition of the territorial expansion
Prohibition on the Threat or Use of Force
What are these updates on the principle found on pg 57
6) extreme forms of economic coercion amounting to a threat to the peace are prohibited
3.5
What is the next principle?
Peaceful Settlement of Disputes
3.5 Peaceful Settlement of Disputes
Where is this principle outlined?
UN Charter-article 2.5; UN Declaration on Friendly Relations of 1970 (GA res.2625); Manila Declaration on Peaceful Settlement of Disputes of 1982
Does this apply to all states or just members?
All—it is customary law now
What types of procedures may States use to peacefully settle disputes?
Negotiation , Mediation, Conciliation, and Ajudication
However, States must consent to these measures, cannot be forced to use one method, unless the treaty says how they are to handle disputes
3.5 Peaceful Settlement of Disputes
What if you endeavor to resolve a dispute peacefully, but you fail to reach a solution…can you use force?
No state must try again
Legally bound to ‘refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security’
3.5 Peaceful Settlement of Disputes
When is the principle considered breached?
Whenever a State willfully and mala fide refuses to resort to negotiations or other peaceful means proposed by the counter-party
Continues to refuse to seek a settlement
Takes actions likely to aggravate the situation
What can the counter-party do?
Can seek assistance of a regional or international body
Use peaceful countermeasures
What is the next principle?
Respect for Human Rights
3.6 Respect for Human Rights
Is this this principle at odds with any of the other principles discussed in the chpt? And if so, how, please explain?
Principles of Sovereignty and Non-intervention
3.6 Respect for Human Rights
What documents give rise to this principle?
UN Charter
Universal Declaration of Human Rights link
Does it matter if the abuses are sporatic/isolated or repeated and serious?
Yes, only repeated and serious offences gain/merit/allow for international attention
Examples?
Torture, fair trial, arbitrary arrest--civil and political rights
3.6 Respect for Human Rights
Enforcement?
Mostly through UN
Legally, any State is entitled to insist that the offending party discontinue its violations
What is the next principle?
Self-determination of peoples
3.7 Self-determination of Peoples
How did the system develop over time? What was the old system like, and now the new system?
Old System:
Hereditary Monarchies, Despotism
Leaders made decisions without care, for the most part, of their own or other subjects
Agreements b/w national rulers alone
New System: belief of Self-determination:
Democratic principle (popular sovereignty)
Respect for the wishes and aspirations of peoples/citizens
Other nations cannot freely subjugate other territories and peoples without their approval
Peoples and nations are free from colonial rule and exterior pressure
Self-determination of Peoples was a game changer in International Relations
Caused/Supported much upheaval
Hurting empires and multi-national states
3.7 Self-determination of Peoples
Legal Scope
Self-determination in IL is only firmly entrenched in 3 areas—or situations:
Anti-colonialism
Ban on foreign military occupation
Requirement that all racial groups be given full access to government
3.7.3 Self-determination of Peoples
Rights and obligations
How can other states help others secure their self-determination?
1) States who suppress the 3 categories of people are duty bound to allow the free exercise of the people
2) Suppressed people have legal rights in relation to the oppressor State and other 3rd party States
3rd party States cannot assist oppressor States (militarily)
Can bring to UN
3) States are legally authorized to support peoples entitled to self-determination
By granting assistance short of armed troops
Crimes of Apartheid
https://en.wikipedia.org/wiki/Crime_of_apartheid
https://www.cnn.com/2019/01/18/asia/uyghur-china-detention-center-intl/index.html
US and South Africa
Apartheid Regime
US supported to varying degrees
CIA suspected African National Congress was dominated by communists—USSR aids ANC
Nixon, not Ford, and then Reagan policy of Constructive Engagement:
US would remain on good terms with the Apartheid Govt., b/c this would provide more leverage than hostile actions
However, most countries imposed economic sanctions
US Congress—passed the Comprehensive Anti-Apartheid Act of ‘86, Reagan vetoed, Congress overrode—limits trade, investment.............by ‘88 Congress passes more sanctions
The situation changed after the Cold War—international support for change in South Africa
End of Apartheid—Mandela wins 1994 Presidential Election
3.7.4 Limits on the Principle
It does not include groups that demand autonomy/self-determination:
Ethnic groups (not constituting a racial group), national, religious, cultural, or linguistic minorities
Why?
Political stability and territorial integrity are also valued by the IR system
3.8 Distinguishing Traits of IL Principles
What are some distinguishing traits of the Fundamental Principles?
1st -Traditional IL widely accepted
sovereign equality of states
2nd - New Principles are more in conflict
3rd - Principles apply to all ‘subjects’
States, Insurgencies, liberation movements, international organizations (all legal entities operating in int. community)
Principles are erga omnes /community rights
3.8 Distinguishing Traits of IL Principles
What are some distinguishing traits of the Fundamental Principles?
4th New Principles belong to a category of peremptory norms or jus cogens
no derogation is permitted (no treaty that acts contrarily is allowed)
Human rights and Self-determination of peoples
Rules protecting from racial discrimination, slavery, genocide, self-determination of peoples
5th Principles rely heavily on the UN for implementation and enforcement
3.9 The Close Link Between the Principles and the Need for Their Co-Ordination
Principles are closely intertwined and can support one another; International subjects must comply with all of them
BUT—what about principles on respect for human rights and non-intervention in the affairs of other States?
3.9 The Close Link Between the Principles and the Need for Their Co-Ordination
Hoffman (1981) ‘We must make a distinction between what one can normally call interference or meddling, which is practice by every sovereign State, and which essentially consists of trying to change a sovereign regime so as to make it more favourable to one’s own political or economic interests, and the kinds of measures I am advocating here [that is, peaceful steps to be taken on the bilateral and multilateral level, and within international organizations] and which are essentially aimed at getting governments to observe rules of behavior to which they have committed themselves.’
