Silvia Martis Tabusca - International Law

Romanian-American University
Public International Law
School of Law
International Law
International Business Class

Spring 2012
Silvia Marti Tbuc, PhD
School of Law
International Law
Course 2

Spring 2012
School of Law
Two major sections to the course:
1. Procedural To whom does international law apply and how is it created? 2. Substantive What is the content of international law?
School of Law
Defining International Law textually:

International: pertaining to the relations between nations Nation: a political state
Law: body of rules, flowing from enactment or custom, regarded as binding

Therefore, textually, International Law is the body of rules flowing from formal enactment or from custom pertaining to the relations between political states and regarded as binding on those states.
School of Law Defining International Law Implications of the textual definition for a discussion of International Laws origins along the historical timeline: Slightly less broad definition still too broad: International Law is some sort of substantive code of conduct governing relations between different peoples Medieval Conception of Natural Law:
Antiquity or perhaps the early Middle Ages Silvia Marti Tbuc, PhD
Initially based on the divine, and then on human reason.
Historical Timeline
School of Law Defining International Law Implications of the textual definition for a discussion of International Laws origins along the historical timeline: Pre-requisite for textual definition: the state State is the body politic as organized for supreme civil rule and government
16th Century
Early Modernity
Historical Timeline
School of Law Defining International Law
Implications of the textual definition for a discussion of International Laws origins along the historical timeline: Pre-requisite for textual definition: the state Classical conception of international law: states consenting to rules governing international conduct
19th Century
By this period, natural law mostly supplanted by positivist conception of consenting states
Historical Timeline
Human Rights: international law that governs how a state treats human beings a natural law-like vision that does not sit well with the classical conception Historical Timeline
End of WWII
Challenge to the classical conception?
Is the state-centric classical conception still fully accurate? Modernity

A modern definition of international law?: international law is the body of law integrating the world as a whole into a single world community, subject to the rule of law
Historical Timeline
School of Law Defining International Law Implications of the textual definition for a discussion of International Laws origins along the historical timeline:
Summary on the definition of International Law: International law is the law of nations, and is therefore a system of rules regarded as binding on states in their mutual relations. International law is also a body of law that increasingly regulates how states act within their zone of traditional sovereign authority.
Historical Timeline
School of Law Pseudo-theories of International Law First theoretical hypothesis: 1. Evolution of International Law A pattern of punctuated equilibrium? Slow evolution and then rapid development after times of crisis WWI 1618: Thirty Years War War on Terror? WWII Cold War
Historical Timeline
School of Law Relevance of International Law in International Politics Does international law matter in international politics? Realists: Not really - Liberals: Yes Simple answer: Every day, in things as basic as international postal and telecommunications services, and international trade Complex answer: International law matters because: 1. the decision-making elites in all states acknowledge the existence of something called "international law"
2. international law provides a language for diplomacy 3. international law gives normative value to actions and claims made by international actors
School of Law
International Law
Course 3

Spring 2012
School of Law Relevance of International Law in International Politics Does international law matter in international politics?
War in Iraq: U.S. Efforts to Justify Actions Using International Law Secretary of State Powell on Feb. 5, 2003 Iraqs non-compliance with Security Council Resolution 1441 Iraq could provide weapons to terrorists, placing the United States at grave risk
War in Iraq: U.S. Efforts to Justify Actions Using International Law Security Council Resolution 1441 Meaning of material breach US view that SC 1441 could be used to justify action against Iraq
War in Iraq: U.S. Efforts to Justify Actions Self-Defence Notion
Self-defense permissible in response to an actual attack or when such an attack is imminent. US doctrine of pre-emptive self-defense: the Bush Doctrine. Consistent with international law?
Will it change international law?
School of Law Pseudo-theories of International Law Second theoretical hypothesis: 2. Functions of International Law
Stabilizing Purpose: Creating a system favouring deliberation and reason over raw power to smooth international relations.
Normative Purpose: Fostering a better way of international politics, by articulating shared values.
School of Law
Sources of International Law

International Law is built on the notion of sovereign states. The notion of sovereignty at the heart of International law is hostile to the notion of a supra-national entity making international law. International Law typically (though not always) about looking for evidence of state consent (e.g., treaties). The S.S. Lotus (1927, P.C.I.J.): International la governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law Restrictions upon the independence of States cannot therefore be presumed.
School of Law

Statute of the International Court of Justice, Article 38: The sources of international law that may be applied by the ICJ are: 1. International conventions; 2. International custom; 3. General principles of law; 4. Judicial decisions and the teachings of the most highly qualified publicists.
School of Law

Article 38 of the ICJ Statute: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states Treaties: Also called conventions, covenants, statutes, acts, charters, agreements, etc. Generally only binding on state parties (subject to certain exceptions)
School of Law
Sources of International Law: Treaties

Treaties: Preliminary Observations
1. There is no magical form or format for a treaty; the focus is on intent to be bound. Eastern Greenland Case
Qatar v. Bahrain Maritime Delimitation Case???
2. The rules of treaty law in international law have evolved over time; concept of inter-temporal law. Passage over Indian Territory Case
3. An agreement between a state and a non-state actor (other than an international organization) will not be an international treaty.
Anglo-Iranian Oil Case
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Creating Treaties Vienna Convention on the Law of Treaties ,1969/80 Article 2 A treaty is an international agreement concluded between states in written form and governed by international law.
Article 6: Capacity of States to conclude treaties Every State possesses capacity to conclude treaties.
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Legal Effect of Treaties Vienna Convention on the Law of Treaties
Pacta Sunt Servanda Article 26 Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
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Legal Effect of Treaties Vienna Convention on the Law of Treaties
Internal Law
Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. S.S. Wimbledon Case (P.C.I.J.) 1923.
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Legal Effect of Treaties Vienna Convention on the Law of Treaties Application to Third Parties Concept of pacta tertiss nec nocent nec prosunt: Article 34: A treaty does not create either obligations or rights for a third State without its consent. Exceptions: Third Party States can have rights Article 36: A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.
School of Law
Reception of International Law

Definition of reception system: A reception system is a means of determining how rules of public international law are applied, considered, or not, in domestic law.
Functioning of the reception: Two classical approaches: Monist: automatic incorporation international law applies in the domestic jurisdiction immediately and directly, without any legislative or executive action.
Dualist: international law becomes domestic law only through whats known as a process of transformation or sometimes implementation
School of Law
International Law
Course 4

Spring 2012
School of Law
Subjects of International Law
State is a legally defined entity. Modern international law sets out four basic criteria for a state: 1. A permanent population 2. A defined territory 3. A government 4. A capacity to enter into relations with other states
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Key Subjects of International Law: The State
1. Permanent Population:
Number: no maximum or minimum number Permanence: constant human presence
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2. Defined Territory:
Size: No maximum or minimum size Generally requires occupation and control
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3. Government:
No requirement for a particular form of government Must be some effective control of territory Emergence of Finland in post-WWI: strict rule.
Belgium and Somalia.
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Key Subjects of International Law: The State 4. Capacity to enter into foreign relations (independence): Must have competence under own constitutional system to enter into foreign relations. States do not cease to exist where delegate some authority to a supranational entity. State is agreeing, in an exercise of its sovereignty to limit its independence. independence means the sole right of decision in all matters economic, political and financial. simply entering into treaties that limit this does not vitiate independence so long as state is not under the legal authority of another state. European Union ???
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Vatican City and the Holy See: A marginal case?
Vatican City or Holly See: 0.2 square

miles - The world's smallest state, the Vatican has a population of 770, none of whom are permanent residents. The tiny country which surrounds St. Peter's Basilica is the spiritual center
for the world's Roman Catholics
School of Law

Monaco: A marginal case?

Monaco: 0.7 square miles - The tiny state of Monaco lies along the French Riviera on the French Mediterranean coast near Nice. An impressive 32,000 people live in this state
known for its Monte Carlo

casinos and Princess Grace.
School of Law

Recognition of States:
Complex definition: the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international Community. Simple definition: a formal acknowledgment by another state that an entity possesses the qualifications for statehood
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Recognition of Governments Distinguished:

Recognition of a government is a formal acknowledgment that a particular regime is the effective government of a state Today, states generally prefer to practice tacit recognition of each others governments (Estrada Doctrine) However, recognition may be expressly denied in some instances
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Changes in the State: State Succession State succession deals with the emergence of new states: what are the legal obligations of these new states? Bound by customary international law Treaties are more complicated: One state merges into another, surviving states duties persist A state acquires a piece of territory, the states obligations extend to this new territory
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Key Subjects of International Law: The State Sovereign Equality of States Sovereignty: exclusive control over own affairs
Sovereignty is taken to connote "independence" defined as the "right to exercise [within a set national territory], to the exclusion of any other State, the functions of a State"
States are supposed to be equally sovereign states "have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature"
Flip-side is obligation not to interfere in the sovereign affairs of other states
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Key Subjects of International Law: Intergovernmental Organizations International Personality of Intergovernmental Organizations Reparations Case
in order to perform the functions assigned to it by the UN Charter, the UN was endowed with some international legal personality, separate and apart from that of its state members
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Key Subjects of International Law: United Nations Established by the United Nations Charter (1945) 1. Purposes Article 1: To maintain international peace and security To develop friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights
To be a centre for harmonizing the actions of nations in the attainment of these common ends
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UN General Assembly
General Assembly
Membership: All members of the UN (Art. 9); one country one vote (Art. 18) Powers: Discussion & Recommendation: may discuss any questions or any matters within the scope of the present Charter and make recommendations on same (Art. 10)
Appointment Role: e.g. non-permanent members of the Security Council, members of the Economic and Social Council (Art. 18); along with Security Council, ICJ judges (Art. 4 of ICJ Stat.)
Financial Role: Approve overall budget (Art. 17)
Caveat 1: may discuss but not recommend on a situation being considered by Security Council (Art. 12)
Caveat 2: recommendations are not binding on member states (Art. 10)
School of Law
UN Security Council
Security Council
Membership: 15 members, 5 of whom are permanent (Art. 23) Powers: Council Resolutions binding under Art. 25
Peace and Security Powers
Chapter VII: Council declares existence of any threat to the peace, breach of the peace, or act of aggression (Art. 39)
Chapter VI: investigate disputes and make recommendations to resolve them
Appointment Role: e.g. along with General Assembly, ICJ judges (Art. 4 of ICJ Stat.)
Use of Force (Art. 42)
Economic Sanctions (Art. 41)
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Key Subjects of International Law: United Nations The International Court of Justice: Inheritor of a long tradition of states arbitrating international disputes Successor to the PCIJ, which had the following important qualities: permanently constituted body with rules fixed beforehand and binding on parties having recourse to the Court. able to set about gradually developing a constant practice and maintaining a certain continuity in its decisions, empowered to give advisory opinions upon any dispute or question referred to it by the League of Nations Council or Assembly.
School of Law
International Court of Justice

(15 judges)
Contested Case (between states only) Basis for Jurisdiction (Art. 36):
International Court of Justice (15 judges)

Advisory Opinions (requested by UN organs) Contested Case (between states only) Basis for Jurisdiction (Art. 36):
Compulsory jurisdiction
Special agreement conferring jurisdiction (compromis)
Under treaties
Effect of Decision: have no binding effect, though have moral force
Effect of Decision: binding, final and without appeal (on the state parties)
School of Law

Western Sahara Case: Self-Determination Denied
ICJ asked two questions: 1. Was Western Sahara Terra Nullius at the Time of Colonization by Spain?
No. It was not terra nullius because its inhabitants had sufficient political and social organization.
2. What Were the Legal Ties of This Territory with the Kingdom of Morocco and the Entity that would become Mauritania? the Court did not find legal ties of such a nature as might affect the principle of selfdetermination through the free and genuine expression of the will of the peoples of the Territory.
School of Law

East Timor Case: Self-Determination Denied
Challenge to the Australia-Indonesia Timor Gap treaty Case turned on whether Indonesia illegally invaded East Timor and thus could not claim sovereign authority over the relevant zone Indonesia denied the courts competence Australia argued case could not be heard without Indonesia because it affected Indonesias rights Portugal claimed that the Timorese right to selfdetermination was a right erga omnes Court agreed with that erga omnes, but concluded it could not hear the case without Indonesia
School of Law
International Law
Course 5

Spring 2012
School of Law
State Jurisdiction Over Territory
How does international law govern the acquisition of territory by existing states (land, sea, air, even space)?
How does international law regulate claims by peoples inhabiting territories controlled by states who wish to exert self-determination?
1. Territory over which states have sovereignty
2. Res nullius (terra nullius)

3. Res communis 4. Common heritage of humankind (actually a subset of res communis)
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State Jurisdiction Over Territory: Sorts of Territory 1. Territory over which states have sovereignty Acquiring sovereignty over territory: 1. Primary title: Accretion Effective occupation of terra nullius 1. the effective and continuous display of state authority or power over a territory 2. demonstrated intent to establish and maintain sovereignty over the territory
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State Jurisdiction Over Territory: Sorts of Territory

Acquiring sovereignty over territory: 1. Primary title: Accretion Effective occupation of terra nullius Concept of terra nullius: Colonial concept of discovery Modern conception less dismissive of indigenous peoples (Western Sahara Case)
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Acquiring sovereignty over territory: Effective Occupation and Prescription in action: Island of Palmas Case: no effective occupation ever exercised by Spain, thus no title in 1898, thus no title possessed by the United States
in any event, even if Spain did have some sort of inchoate title by virtue of simple discovery, an inchoate title could not prevail over the continuous and peaceful display of authority by another state (in this case the Netherlands).
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Acquiring sovereignty over territory: 2. Secondary title continued: Cession, Renunciation or Abandonment Cession: given from one state to another under international agreement Renunciation: renounced by one state, passing into the hands of another state which exercises sovereignty
Abandonment: renounced by one state, and left as res nullius Presumption against abandonment
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Loosing State Jurisdiction Over Territory: Self-Determination
1. Defining Self-Determination: all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development
2. Sources of Self-Determination recognized as a rule of customary international law and is invoked in Articles 1 and 55 of the United Nations Charter
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Loosing State Jurisdiction Over Territory: Self-Determination 3. Requirements for Self-Determination: people distinguished from a minority Reflects a fear that self-determination not be used to dismember states: General Assemblys Declaration on the friendly relations between states:
self-determination may not be employed to "dismember or impair...the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples...and thus possessed of a government representing the whole people belonging to the territory"
School of Law

A. Who are peoples? Sometimes refer to some level of ethnic homogeneity But note that many of the states that emerged after colonialism were not ethnically homogenous
UN Special Rapporteur on the Sub-Commission on Prevention of Discrimination and Protection of Minorities: 1. The term "people" denotes a social entity possessing a clear identity and its own characteristics 2. Relationship with a territory
3. A people should not be confused with ethnic, religious or linguistic minorities
School of Law

B. Non-self-governing status General Assembly friendly relations resolution: Self-determination may not be employed to "dismember or impair...the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples... and thus possessed of a government representing the whole people belonging to the territory"
self-determination, in international law, has been invoked in the context of colonial and non-self-governing peoples (as well as perhaps peoples struggling against severe repression)
School of Law

4. Consequences of Self-Government:
The General Assembly has outlined three possible outcomes in its Resolutions 742 and 1541: 1. Emergence as a sovereign, independent state.
2. Free association with an independent state.

"should be the result of a free and voluntary choice by the peoples of the territory concerned, expressed through informed and democratic processes"
3. Integration with an independent state.
should "be the result of the freely expressed wishes of the territory's peoples . . . their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage."
School of Law

Example: Western Sahara: Self-Determination Denied

ICJ asked two questions: 1. Was Western Sahara Terra Nullius at the Time of Colonization by Spain?
No. It was not terra nullius because its inhabitants had sufficient political and social organization.
2. What Were the Legal Ties of This Territory with the Kingdom of Morocco and the Entity that would become Mauritania? the Court did not find legal ties of such a nature as might affect the principle of selfdetermination through the free and genuine expression of the will of the peoples of the Territory.
School of Law

Example: East Timor: Self-Determination Denied

Challenge to the Australia-Indonesia Timor Gap treaty Case turned on whether Indonesia illegally invaded East Timor and thus could not claim sovereign authority over the relevant zone Indonesia denied the courts competence Australia argued case could not be heard without Indonesia because it affected Indonesias rights Portugal claimed that the Timorese right to selfdetermination was a right erga omnes Court agreed with that erga omnes, but concluded it could not hear the case without Indonesia
School of Law

Self-Determination Good or Bad?

The normative role of international law vs. the stabilizing role because the criteria for self-determination are so fuzzy, and the meaning of peoples so uncertain, does this mean that self-determination runs the risk of every little ethnic group claiming state status, dismembering states and fighting bloody civil wars?
School of Law
International Law
Course 6

Spring 2012
School of Law

State Jurisdiction Over Territory: Integrity of Boundaries
Concept of Uti Possidetis

Former colonial boundaries graduate to international boundaries upon independence
Burkina Faso v. Mali (ICJ)

Frontier dispute between two French colonies; Applied uti possidentis principle.
School of Law

State Jurisdiction Over Territory: Inland Waterways
Where these waterways are international, status usually determined by treaty

Absent a treaty, the general rule probably is that where a river separates two states, the riparian states enjoy sovereignty up to the medium filum acquae (middle line of the stream of water) Absent a treaty, where a water resource is shared between two states, the general rule likely is equitable and reasonable use and sharing of the resource
School of Law

State Jurisdiction Over Territory: Oceans
1. Ocean over which states can have sovereignty (internal waters and the Territorial Sea)
Article 2 of the LOS Convention: Territorial Sea extends 12 miles from the coastal states baselines Determining baselines Anglo-Norwegian Fisheries Case low-water mark vs. straight baselines Court concluded that straight baselines were appropriate given the nature of the Norwegian coast
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Rough comparison of territorial sea with and without straight baselines
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Where are straight baselines appropriate?
Area of indentation larger than semi-circle whose diameter is a line drawn across the mouth of the bay
LOS Art. 10: Bays an indentation is a bay so long as its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation .
Straight baseline can be drawn where this line is not more than 24 miles Here, more than 24 miles, so can close off only part
Rights over School of Law Territorial Sea
Right of innocent passage through territorial sea: Must meet the LOS requirements for passage and innocent e.g., to be innocent may not be prejudicial to peace, good order and security of the coastal state
Internal Waters
Straight baseline for 24 miles of oversized bay (Art. 10)
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State Jurisdiction Over Territory: Exclusive Economic Zone states have important economic interests that extend beyond their territorial seas Fisheries Jurisdiction Case UK v. Iceland customary law allowed a fishery zone, between the territorial sea and the high seas within which the coastal State could claim exclusive fisheries jurisdiction
Approach to the Exclusive Economic Zone set out in the LOS Convention
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State Jurisdiction Over Territory: High Seas Pure res communis on these commons all states have freedom of the high seas, such as freedom of navigation or freedom of overflight No state may validly purport to subject any part of the high seas to its sovereignty
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State Jurisdiction Over People & Things
Distinction between state jurisdiction over territory (sovereignty over territory) and state jurisdiction over people and things
Sovereignty over territory generally means sovereignty over people and things in that territory (with exceptions we will discuss) But states may sometimes also have jurisdiction over people and things that are not in their territory
Definition of jurisdiction: jurisdiction is a governments powers to exercise authority over things and persons
Problem of jurisdiction: people and things move between states and assorted states may have a legitimate interest in what happens to those people and things
School of Law
State Jurisdiction Over People & Things
Starting point: S.S. Lotus

States may not exercise power in the territory of another state This is the notion of enforcement jurisdiction: states generally may not enforce their laws outside their territorial boundaries
But states may exercise jurisdiction in their own territory relating to acts that take place abroad This is the notion of prescriptive jurisdiction: states in some instances may extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory
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State Jurisdiction Over People & Things: Enforcement Jurisdiction
Defined: States jurisdiction to enforce its rules

States clearly have the jurisdiction to enforce their laws in the zone over which they have territorial sovereignty Generally, it would violate the sovereignty of other states for a state to enforce its rules in the territory of another state A state whose sovereignty is offended in this way would have a claim against the offending state
Note, however, that national courts of many states take the view that even if the accused was apprehended in the territory of another state in violation of that states sovereignty, the court is not deprived of jurisdiction E.g., United States v. Alvarez-Machain
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State Jurisdiction Over People & Things: Prescriptive Jurisdiction 1. Nationality Principle: a state may pass a law regulating the overseas conduct of its own nationals Notion of nationality: clearly the nationality principle depends on an understanding of nationality Nationality of Individuals: jus soli (birth of the states territory); jus sanguinis (nationality by virtue of the nationality of ones parents) Naturalization: acquiring nationality after birth
Nottebohm Case: notion of a genuine factual link
Corporations: Barcelona Traction: state in which corporation incorporated or has head office
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State Jurisdiction Over People & Things: Prescriptive Jurisdiction
2. Passive Personality Principle: variant of the nationality principle, but here the state seeks to regulate an act committed abroad by a non-national in which the victim is a national
E.g., German Penal Code 3. Protective Principle: regulation of overseas conduct of the sort that jeopardizes the states key interests E.g. espionage, counterfeiting, conspiracy to violate immigration or customs laws
4. Universal Principle: some crimes so heinous that irrespective of where they are committed, states may seek to regulate them
E.g. crimes against humanity, war crimes, certain terrorism crimes, piracy
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State Jurisdiction Over People & Things: Example Eichmann case (Israeli district and supreme courts)
Eichmann apprehended in Argentina and spirited to Israel

Prompted flurry of diplomatic protest from Argentina Israeli court held that the illegality of the means by which the accused was within its territorial jurisdiction not material
Israeli court held that jurisdiction to prosecute Eichmann for acts that had taken place in Europe existed under something resembling a protective principle and also under the universal principle
Not only do all the crimes attributed to the appellant bear an
international character, but their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations. The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction...to try the appellant.
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State Jurisdiction Over People & Things: Limits on State Jurisdiction Under this heading, we will discuss three broad areas in which state jurisdiction is constrained by international law, even on their own territory: Constraints on what a state can do to foreigners Constraints on the jurisdiction states can have over foreign diplomats Constraints on the jurisdiction states can have over other states
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State Jurisdiction Over People & Things: Limits on State Jurisdiction
Constraints on what a state can do to foreigners

foreign nationals must comply with the states laws but international law demands that the state extend to these foreign nationals certain basic standards of proper treatment: 1. states have to accord foreigners human rights, much as they have to accord their own nationals human rights 2. international law accords extra special rights to foreigners setting a basic floor below which treatment cannot fall:
Competing concepts of national treatment and minimum treatment
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Constraints on what a state can do to foreigners

Concept of minimum treatment: Neer case (U.S.-Mexico Claims Commission) to be a violation of international law, the treatment of the alien should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action falling clearly short of reasonable standards
Modern standard likely higher
Hinges on whether an act is unfair or unreasonable, inflicting serious injury to established rights of foreign nationals
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State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Concept of minimum treatment: Includes the concept of denial of justice
injury consisting of, or resulting from, denial of access to courts, or denial of procedural fairness and due process in relation to judicial proceedings, whether criminal or civil.
Expropriation: it is considered a violation of international law for a state to take the property of a national of another state that (a) is not for a public purpose, or (b) is discriminatory, or (c) is not accompanied by provision for just compensation
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Constraints on what a state can do to foreigners Protecting Dual Nationals 1930 Hague Convention on Conflict of Nationality Laws Article 4: states may not afford diplomatic protection to one of its nationals against a state whose nationality such a person also possesses
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Constraints on what states can do to foreign diplomats

Vital part of customary international law, codified by the Vienna Convention on Diplomatic Relations Who is covered: Article 1 of the Convention on Diplomatic Relations defines a "diplomatic agent" as the head of a diplomatic mission or a member of the diplomatic staff of the mission What is covered: immunity (inviolability)
1. from the exercise by the host state of jurisdiction to pass laws in relation to acts or omissions in the exercise of the agent's official functions
2. from arrest, detention, criminal process, and, in general, civil process in the receiving (host) state
Host states may resort to declaring diplomat persona non grata
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Constraints on jurisdiction states can have over other states

Usually an issue in judicial proceedings in one state Simple definition: sovereign immunity state immunity means that a state cannot be subject to another states enforcement jurisdiction Rationale: US Supreme Court in The Schooner Exchange: immunity is rooted in the "perfect equality and absolute independence of sovereigns."
School of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Types: Ratione personae: state immunity that exists by reason of the person concerned immunity exists to certain key representatives of the state the foreign minister, the head of government or state etc. so long as they hold office
Ratione materiae: state immunity that exists by reason of the matter concerned matter is immune because it is a matter intimately connected to a foreign state problem of deciding when is a subject matter so identified with the state it should be immune Modern approach is to deny this immunity in commercial matters
School of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione materiae example: Pinochet case the majority concluded that the immunity of a former head of state persists only with respect to acts performed in the exercise of the functions of head of state, that is official acts, whether at home or abroad question of whether an act can be official where it violates international law (e.g., prohibition against torture) At the end of the day, the majority of the Law Lords found that torture cannot constitute an official act of a head of state (at least where the state had ratified the Torture Convention)
School of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione personae example: Belgium v. Congo case ICJ: under customary international law, there is no exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity
But immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity
School of Law
International Law
Course 7

Spring 2012
School of Law Human Rights: Introduction
Human rights are a constraint on state jurisdiction Human rights must be viewed as representing a break from the statecentric model of international law
Starting point for discussion: Could begin well back in history
But real evolution of international human rights law is a product of the Second World War

Silvia Martis Tabusca - International Law

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Silvia Martis Tabusca - International Law

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Romanian-American University

Public International Law

International Business Class

Silvia Marti Tbuc, PhD

Public International Law

International Business Class

Silvia Marti Tbuc, PhD

Public International Law

Two major sections to the course:

Public International Law

Defining International Law textually:

Law: body of rules, flowing from enactment or custom, regarded as binding

Silvia Marti Tbuc, PhD

Public International Law

Initially based on the divine, and then on human reason.

Public International Law

Silvia Marti Tbuc, PhD

School of Law Defining International Law

Public International Law

Silvia Marti Tbuc, PhD

School of Law Defining International Law

Public International Law

Silvia Marti Tbuc, PhD

Challenge to the classical conception?

School of Law Defining International Law

Public International Law

Is the state-centric classical conception still fully accurate? Modernity

Silvia Marti Tbuc, PhD

Public International Law

Public International Law

Silvia Marti Tbuc, PhD

Public International Law

Silvia Marti Tbuc, PhD

Public International Law

International Business Class

Silvia Marti Tbuc, PhD

Public International Law

Silvia Marti Tbuc, PhD

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Silvia Marti Tbuc, PhD

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Public International Law

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Silvia Marti Tbuc, PhD

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