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Reference Guide

International Law - Reference Guides

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University of Saskatchewan
COMM 404

l e a r n • r e f e r e n c e • r e v i e w permacharts TM International Law APPLICATIONS TREATIES DESCRIPTION STRUCTURE • Deals with conduct of states and international • Codified in Vienna Convention • Enter into international force when organizations, their relations inter se, and some relations with persons on the Law of Treaties (1969) parties agree to be bound by • Consent may occur via various agreement by set date • International organizations and persons are subject to methods (that is, signature, • Provision requires set number of states rights under international law ratification) to accept treaty before coming into force APPLICATION Treaties International agreements concluded between states (in written form) and governed by international law Domestic Not a legal system, but a branch of it; Bilateral Originate in foreign ministry of one party; discussions precede invoked when the situation requires it Treaties draft texts, which go through negotiation until accepted International Invoked and applied daily by states Multilateral (Involving many states) drafted at diplomatic conferences and intergovernmental organizations; Treaties (bilateral similarities); represented by delegations of advisers considered a distinct legal system RESERVATIONS • State’s international rights and obligations are superior to any rights and duties provided under domestic law • Unilateral statements made by • States are free to adhere to treaty • Domestic constitutional law does not overrule state (when signing, ratifying, with reservations; excludes treaty international law in the international plane accepting, approving, or acceding that prohibits reservations, treaty to treaty) where it seeks to that allows only certain types of FUNCTION exclude or modify legal effect of reservations, and reservation that some treaty provisions in is not compatible with treaty’s • States usually apply the law in diplomatic relations, negotiations, and policy making application to that state object and purpose (Convention • Defend actions and policies through reference and (Convention art. 2(d)) art. 19) challenge conduct of other states in reliance of law • Attempt to amend treaty pro tanto • Attempt to join treaty with the reservation as between itself reservation equals proposal to • Violations are treated as they would be under and involved parties modify treaty’s terms between domestic law • Contrast to state understanding parties to agreement • Violations on domestic plane are dealt with by courts or declaration • Reservation expressly authorized and administrative agencies; rules vary on international by treaty does not require plane • Acceptance of reservation in acceptance bilateral treaty leads to its amendment; in multilateral treaty, • Reservation must be accepted by some states must be willing to organization where treaty is its accept it (limitations) constituent instrument p SOURCES OBSERVANCE e PRIMARY SOURCES • Every treaty in force is • Ordinary meaning of terms in text of r • Article 38(1) of the Statute of the International Court binding upon its parties and agreement should be followed; special m of Justice (ICJ) applies to disputes which come before must be performed in good meanings may apply as necessary the ICJ faith (Convention art. 26); • Treaty must be interpreted as a whole; a • Applies to international conventions (whether general domestic law is not a context covers several areas (that is, may or specific) establishing rules recognized by contesting defense to non-performance apply to previous or subsequent treaties c h states; international custom generally accepted as law; • Binding on each party in • No creation of obligations or rights for general principles of law accepted by civilized parties; respect to its entire territory third party without their consent; a and judicial decisions (as well as teachings) of highly (Convention art. 29); federal various situations may exist (Convention qualified publicists of various nations state clauses may place limits arts. 34-36) r Conventional Arises from international on obligations t International Law agreements s INVALIDITY Customary Develops from state practice (that . International Law is, official government conduct) • May be invalidated as contracts • Treaty may be suspended, c (such as factual error, fraud, withdrawn from or terminated o corruption, duress); void ab initio by state that follows terms of SECONDARY SOURCES if, at time of entrance, it conflicted treaty which allow it (Convention m • Existence of a rule may be proved by reference to with peremptory norm of general arts. 54, 57) subsidiary means of evidence (that is, judicial international law (Convention arts. • Suspension or termination is decisions, views of duly qualified publicists) 48-53) allowed where there is a material • States are free to enter into breach of treaty • Decisions of the ICJ are deemed as most authoritative agreements which change usually judicial decisions • Fundamental change in The International Composed of distinguished applicable rules of customary circumstances and impossibility of international law; excludes rule of performance may be grounds for Law Commission lawyers from around the world; jus cogens termination or withdrawal (ILC) authoritative conclusions • States may only void performance • Treaties of a humanitarian Resolutions and (From intergovernmental if treaty violation of domestic law character may not be suspended Related Acts international organizations) are was manifest and rule of internal solely due to the fact that other strong examples of evidence law was of fundamental party has breached its treaty terms importance 1 INTERNATIONAL LAW • A-836-2 © 1996-2011 Mindsource Technologies Inc. l e a r n • r e f e r e n c e • r e v i e w permachartsTM INTERNATIONAL ORGANIZATIONS UNITED NATIONS REGIONAL ORGANIZATIONS • Came into being with entry into force of UN Charter on October • Created by international agreements that specify functions and structure 24, 1945 • Deal with regional matters (general or specific matters) • UN Charter serves as multilateral treaty and constitution • Mandate, political significance, and legislative powers vary • Universal organization that is responsible for peacekeeping duties; • Major organizations include Organization of African Unity (OAU), development of friendly relations between nations; achievement of Organization of American States (OAS), and Council of Europe international cooperation in solving international problems (that is, economical, social, cultural, humanitarian); and promotion of • Promote cooperation between regional states in different fields (that human rights and fundamental freedoms without discrimination is, political, social) • Charter prevails over other international agreements when there is SUPRANATIONAL ORGANIZATIONS conflict in obligations • Includes European Common Market; composed of different ORGANS & AGENCIES communities (that is, European Economic Community (EEC)) • More governmental authority and legislative powers than Economic and Has responsibilities in economic, social, and international organizations Social Council humanitarian areas, as maintained by subsidiary • Authority to make law directly applicable to member nationals (ECOSOC) organs; members elected to 3-year terms • Comprised of four main institutions that implement policies (Council General Gives all member states the right to be represented of Ministers, Commission, European Parliament, and Court of Justice) Assembly and vote; plenary powers but no formal legislative authority Council Main source of legislative power; shared by Commission ICJ Serves as UN’s judicial organ Court Asserts power of Community law over national law when Resolutions on Requires 9 affirmative votes, including of Justice applied to domestic legal plane; supervises interpretation of law Non-procedural permanent members (Charter art. 27(3)); Parliament May serve as counsel to the Council; power to force Matters permanent members may veto resolution to resignation of Commission become procedural and actual resolution Secretariat Consists of Secretary-General and other UN members; chosen by General Assembly (5-year PEACE & DEFENSE term) and responsible to notify Security Council of • All members must settle international disputes by peaceful means such any matters which may threaten international that international peace and justice are not harmed (Charter art. 2(3)) peace and security (Charter art. 99) • Means of peaceful dispute settlements are outlined (Charter art. 33(1)) Security Responsible for maintaining international peace • Security Council becomes involved as necessary (Charter art. 37(1)) Council and security; 15 members (5 permanent; others are elected to 2-year terms) • Use of force is prohibited in international relations (Charter art. 2(4)); excludes self-defense (Charter art. 51) Specialized Autonomous international organizations that have • Security Council may invoke sanctions against threatening nations Agencies institutional affiliation with UN (Charter art. 57) (Charter arts. 38, 41, 42); may be vetoed by permanent members • Some have specialized agency status through UN agreement (such as World Health Organization • General Assembly may become involved where Security Council (WHO), International Labor Organization (ILO)) cannot act accordingly • Regional organizations may maintain international peace and security Voting (On resolutions regarding important questions) (Charter arts. 52-54); use of force must be authorized by Security Council requires 2/3 majority vote; other questions require majority vote only • Regional defense treaties allow for collective self-defense (Charter art. 51m o c JURISDICTION . s INTERNATIONAL PRINCIPLES U.S. PRINCIPLES t • Each state may exercise territorial jurisdiction as it rests within i• Supremacy Clause, Article VI, of the Constitution makes federal r sovereignty, provided that it does not overstep certain limits that legislation binding on the courts; applies even when it violates are placed on jurisdiction (refer to S.S. Lotus) international law restricting jurisdiction; determination of legislation’s a • State has right to define method of naturalization (that is, birth permissible limits within borders, parent’s nationality, naturalization) • Effects must be substantial; intent alone may be enough; limits on h c • Corporations and vessels (including aircraft) have nationality of protective principle; leaning towards territorial relationships state in which they are registered; flag is not enough • Each state must respect the laws, policies, and interests of other states a • Limits state authority and distributes competence among it would expect for its own rules international community members • Factors affecting exercise of jurisdiction include a state’s vital national m interests; the extent of hardship that would be caused by inconsistent r • Jurisdiction includes duty to protect rights of other states and nationals in own territory commands; the extent of conduct within the territory; the nationality e • Considerations include land boundaries, territorial waters, and airspacef affected subjects; and the amount of enforcement that would be required for compliance p Nationality Gives state jurisdiction over its nationals, even when Principle outside state borders Doctrine of Based on comity principle is used to resolve Protective Allows a state to exercise jurisdiction over conduct Judicial Restraint international jurisdiction conflicts Pure Territoriality Supports an application of U.S. law to any U.S.- Principle outside territory that threatens its security Theory based conduct Territorial Allows state absolute power to prescribe, adjudicate, Principle and enforce rules of law for conduct within its territory; Reciprocity A prerequisite for comity by U.S. courts applies to external acts of conduct effecting it within Sovereign Excuses compliance where contrary foreign Universality Requires authorities to punish activities that are consideredpulsion commands apply in their jurisdiction Principle universally dangerous (such as piracy, genocide, slavery) Defense 2 INTERNATIONAL LAW • A-836-2 © 1996-2011 Mindsource Technologies Inc. l e a r n • r e f e r e n c e • r e v i e w permachartsM DISPUTE SETTLEMENT Non-Judicial Methods ITERNATIONAL COURT OF JUSTICE Bilateral and (Between states) may employ diplomatic correspondence, • States cannot be forced to submit disputes to Multilateral in-person encounters by diplomats or designated adjudication without consent Negotiations negotiators
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