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PS448 Kinsella Midterm
Terms in this set (84)
Peace of Westphalia
Beginning of modern state system. Idea that your authority only extends to your territory
How are nation states organized?
Horizontally: anarchically with no recognized higher authority
Peace of Augsburg
1555 agreement declaring that the religion of each German state would be decided by its ruler
Whose realm, his religion
Cuius regio, eius religio
Thirty Years War
(1618-1648 CE) War within the Holy Roman Empire between German Protestants and their allies (Sweden, Denmark, France) and the emperor and his ally, Spain; ended in 1648 after great destruction with Treaty of Westphalia.
the principle that external powers should not intervene in the domestic affairs of sovereign states
Balance of Power System
Countries in Europe work together to prevent one country from dominating
Concert of Powers
System in which major powers agreed to consult w each other in an effort to resolve disputes between them before they could escalate into major conflict.
Like concert of powers, but created formal international organizations: states pledge to respect territorial integrity and political independence
Hobbesian. What guides state behavior is their own international interest.
English school view: Grotian view
States do follow international laws and norms, and not just for their own national interest
Cosmopolitan view: Kantian view
What we should be aspiring for is not a society of states, but a global society of human beings
Emerges after Peace of Westphalia. Says rules and morality are timeless and universal (principles of morality are inherent in humanity)
Rules of international law are nothing more and nothing less than what states have created for themselves.
Statute of ICJ
Created when UN was created, successor to PCIJ
Statute of ICJ, article 38
Identifies sources of international law: customs and treaties, and general principles of law
The Vienna Convention on the Law of Treaties
Treaty about treaties.
Treaty process outlined in Vienna Convention
4. Entry into force
what created the ICC?
Rome statue after the Cold War
How can treaties be interpreted?
Intentionalism vs textualism
Intentions of those who drafted it; looks into negotiating history
Intentions aren't important; when you interpret the rules, you say close to ordinary meaning of text
Vienna Convention Article 31
Treaty shall be interpreted in good faith in accordance with ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Both textualism and intentionalism
Termination of Treaties
1. Periodic changes
2. Unilaterally withdraw
3. Material breach of obligations
4. Change of circumstances
Treaty Periodic Changes
Treaties are written in a way that allows for periodic changes
Treaty unilateral withdraw
State withdraws, usually under terms of treaty, states are allowed to withdraw from the treaty with notice
Treaty material breach
When another state is in material breach under a treaty, then the other state is allowed to withdraw
Bilateral material breach
No problem, state can withdraw
Multilateral material breach
Obligations to state with material breach of treaty are void, but obligation to other states still stand
Treat change of circumstances
When conditions that were in place when the agreement was signed have fundamentally changed. Things have changed so it's no longer fair to hold one of more parties to agreement promises.
Fisheries Jurisdiction Case
1961 Agreement between Iceland and UK establish 12 mile fishing limit. Iceland claimed things changed bc their 12 miles were severely depleted. ICJ said Iceland has the burden to prove that things have fundamentally changed, and they didn't do that.
Elements of customary law
1. State practice
2. Opinio juris
Customary law: state practice
Behavior observed in practice of states. Behavior has to suggest that it is customary behavior: most states most of the time follow on this behavior as their customs.
Customary law: opinio juris
Behavior follows general practice because it's seen as obligatory as a matter of law. States follow the custom because they feel like it's a legal obligation.
Customary law vs customary behavior
Law: you feel an obligation to follow it. Behavior: you just follow a custom.
France v Turkey ships collided on high seas. 8 Turkish crewmen died, French picked up survivors and took them to Constantinople. Turkey prosecuted French bc their ship was in their state now. PCIJ sided w Turks bc there wasn't a custom that said they couldn't.
Sovereign states can do whatever they want, unless there's a clear law that says that they can't
The theory of persistent objector
If a state constantly objects to a rule of law, then they can be exempt from the rule
Canon shot rule was the custom at the time. Norway objected to the rule, it seized a ship in 1911 that extended beyond the canon shot. The ICJ said even if the custom had matured into law, because Norway constantly objected to it, they're exempt.
Some rules are of supreme important to the entire international community, so their violation should never be permitted
Subsidiary sources for the determination of rules
Sources to help us ascertain what the rules are. Stare decisis isn't a thing, but courts do look at each other, and the writings of legal scholars.
Specifies four qualifications for entity to be recognized as states under international law
4 Qualifications for Statehood
4. Capacity to enter into relations with other states
Land within borders, airspace above land, earth beneath landmass, 12 miles from coastline
What happens if territorial lines between states is unclear?
Controversy doesn't erase statehood.
UN GA Resolution 2625
Declaration do some evidence of customary law that says that states should not ass to their territory by conquest.
State exercises jurisdiction over inhabitants of its territory, but also nationals when they're overseas
Exercise control over actors and activities, internal sovereignty
Capacity to enter into relations with other states requirement
Recognition is important to statehood
Doctrine of effectiveness
State is not dependent on others recognizing it; instead it relies on its effectiveness. Adopts declaratory theory of recognition.
Declaratory theory of recognition
Recognition of a state is just a declaration, it doesn't mean a state is or isn't a state. Nothing more than a recognition, and the real characteristics of statehood are the other three.
Clean Slate Theory
When there's a successor state, legal agreements become redefined. Exception is when it comes to drawing boundaries; prior agreements should be respected.
Insurgencies becoming states?
Cuban insurgency didn't become recognized as a state. National liberation movements have been recognized by intl community.
Individual protections under the law
Individuals are objects of the law, we're protected because our state would espouse our claim as their own
Principles of Jurisdiction
3. Passive nationality
4. Protective principle
States claim jurisdiction over crimes committed within their territory, even foreign nationals within their territory
Focuses on affects of an offense on the state's territory. Action itself didn't take place on territory, but affects of action took place on territory.
State asserts jurisdiction over its nationals over acts they commit outside of their territory
Passive nationality principle
When a state's National is the victim of a crime outside of their own territory
Every country has jurisdiction over the behavior that adversely affects its national security, even if that conduct occurred outside the country.
A state may exercise jurisdiction over conduct outside its territory as a means of protecting the global community as a whole. When offender is in territory under its jurisdiction. Traditionally invoked when something happened in the international stage.
When a state abducts and transfers a person to its jurisdiction, or to the jurisdiction of a friendly state, but does it extrajudicially
Exceptions to jurisdiction. It attaches to states; states have immunity from scrutiny in courts of other states.
Doctrine of restraint
US courts should not complicate conduct of foreign relations by allowing challenges to acts of states in its own courts
Types of acts by states
1. Acta jure imperii
2. Acta jure gestionis
acta jure imperii
sovereign public activities of a state; related to public order, foreign security, and national exchange
acta jure gestionis
Commercial activities by states
Which acts by states are out of reach of foreign courts?
Acta jure imperii
2 concepts of immunity
1. Ratione materiae
2. Ratione persone
Functional immunity: attaches to official because of function they're performing for the state
Personal immunity; attaches by virtue of the office he/she holds.
when an ambassador is not subject to the laws of the state to which they are accredited
a group of people who serve as representatives of their government in another country
The diplomatic delegation
The name of building/office where embassy does their work
Chief diplomat; highest level of diplomatic rank. Accredited as head of diplomatic mission.
Diplomatic rank, they manage the delegation/aspects of it. May have titles of minister/counselors/secretary
Administrative and technical staff
Serve function of keeping embassy working, managing and supporting diplomatic staff
Janitorial staff, clerical staff
What are head of mission and diplomatic staff under the Vienna convention?
Diplomatic agents. They represent the interests of the state on behalf of the home state to counterparts of host state. Enjoy the greatest extent of immunities.
Where do diplomatic staff have immunity?
Premises of mission (buildings, land used for mission, etc...), communications of mission, agents themselves (they have personal immunity except in violations from their ownership of real estate/commercial transactions)
Where do administrative and technical staff have immunity?
Same as diplomatic staff, but only have functional immunity with civil suits
persona non grata
an unwelcome person; used to describe recalled diplomatic officials
House of Lords Pinochet case
Public acts that are normally immune from prosecution have exceptions (that especially bad things that have been subject by international criminal law)
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