You see things and say 'Why?'; but I dream things that never were and I say 'Why not?

      George Bernard Shaw

Professor Maureen B. Fitzmahan

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© Maureen B. Fitzmahan, 2002


Public International Law

ILAW 300 - Fall - 2002


IMPORTANT: This overhead has been provided because many students request overheads at the end of lectures. This overhead may not be complete. It is not meant to be. It is meant as a guide, only. WARNING: Do not depend on this overhead to give you the complete answers to questions which might appear on exams. Use it as a study guide only. Your preparations for exams should come from a thorough study of your notes, the readings and careful analysis on your part.

Fundamental Principles

Used - September 23, 2002

Article 1 and 2, UN CHARTER

1. What is a universal and fundamental principle in international law? @88
a. the fundamental set of standards on which States are not divided
b. which allow a modicum of relatively smooth international relations
c. make the apex of the whole body of international legislation
d. constitute overriding legal standards = constitutional principles of the international community

2. How does a principle become “universal and fundamental?”
a. Not merely by including in list of declaration - could be merely policy guidelines
b. In order to consider principle to be of a universal scope and to be legally binding, it is necessary
i. Laid down in generally accepted treaty/convention (norm, instrument), or
ii. become part of customary law
1. used in international practice (usus) (check BRITISH YEAR BOOK OF INTERNATIONAL LAW)
2. accepted (opinio juris)
3. e.g. treaties, GA resolutions, declarations of States, statements of governmental representatives in the UN, diplomatic practice

3. It was felt by the 1960s, that the UN Charter needed to be supplemented. Why? List 3 reasons (@87)
a. Demise of colonialism and establishment of many developing states
b. New members had no imput in the writing of the Charter
i. Want to inject own views into the Charter
c. New members have different outlook from the older States
i. Want Charter to be more in line with the reality of international relations

d. What are the basic principles outlined in the UN Charter?
i. Sovereign equality of all UN Members (extended to all states, whether a Member or not)
ii. Peaceful settlement of disputes
iii. Prohibition of the threat or use of force
iv. The duty of cooperation in accordance with the Charter
v. States shall fulfill in good faith the obligations assumed by them (pacta sunta)

e. And what principles were added to the Charter’s through the 1970 Declaration?
i. Ban on intervention in internal or external affairs of other States
ii. Equal rights and self determination of peoples

f. READ AND COMPARE Charter and 1970 Declaration

g. @88 Sovereign equality – The only principle where there is unquestioned agreement?
i. Why?
ii. Why did the Belgian’s question the inclusion of this principle into the Charter? What inequality does he refer to?
iii. Why does the author say, “sovereign equality constitutes the linchpin of the whole body of international legal standards, the fundamental premise on which all international relations rest.” Why does he say this?

iv. SOVEREIGNTY - Powers and rights
1. power over individuals living in own territory
2. power to freely use and dispose of the territory of the State’s jurisdiction [what about environmentally dangerous or degradation that effects other States or the globe, in general?]
3. power to perform all duties deemed necessary or beneficial to population living there
a. national safety/security [a. What about right to build weapons of mass destruction? Does Iraq have this right? Does the United States? What about the right to provide security, self-defense through armed attack? ]
4. right – no other State may intrude in the State’s territory (jus excludendi alios – right to exclude others)
a. Solomon Jacob case (1935) – German kidnapped by Germany in Switzerland [returned, civil servant punished]
b. Eichmann case (1960) [UN S.C. calls on Israel to pay compensation to Argentina]
c. Argoud case (1963) – French kidnap for trial by French agents in Germany
d. Alvarez-Machain case (1992) – Mexican national kidnapped in Mexico by American agents to stand trial in U.S. for torture and murder of US national. (US supreme court decision - “The history of negotiation and practice under the Treaty…fails to show that abductions outside of the Treaty constitute a violation of the Treaty [1978]… question: whether the Treaty should be interpreted so as to include an implied term prohibiting prosecution where the defendant's presence is obtained by means other than those established by the Treaty.” The court ruled that even if it could be proved that that the abduction may be in violation of general principles of international law, where the treaty did not specifically prohibit abduction, the acts of the agents were not in violation of the treaty and the US court had jurisdiction over the defendant.)
5. Functional immunity –
a. Armed forces lawfully stationed on its territory
b. On foreign military or public ship or aircraft
c. The State, as an entity is immune from jurisdiction of foreign courts
d. Seize foreign property
e. right to immunity for State representatives acting in their official capacity.
i. Permanent immunity
ii. Acts of individual representing the state (like corporate liability) – are the acts of the State
iii. Such individuals, can not be brought to trial or punished for any official act.
iv. This immunity does not extend to international crimes before an international tribunal, see ICTY, Blaskic case, “exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide.” [One might argue that these crimes are not within the normal duties of an official…]
v. However, may extend to international crimes before a foreign state, see Congo v. Belgium (2002), but see Pinochet case in U.K.).

[The question is why is this immunity against international crimes available to State officials at the foreign domestic level, but not at the international criminal tribunal level?

Admittedly, the international treaties establishing the international criminal tribunals, stated explicitly that such immunities are not available as a defense to State officials. However, in three of those international instruments (Nuremberg, Yugoslavia and Rwanda), the State officials subject to the jurisdiction of the international courts created, are from States who neither acquiesced to the instruments nor explicitly agreed to give up the immunities for their officials. The answer lies in the fact that the Yugoslav and Rwanda international criminal tribunals were created at the direction of the UN Security Council. The SC has extraordinary powers under Chapter VII of the UN Charter to take action in the face of the “existence of any threat to the peace, breach of the peace, or act of aggression.” (UN CHARTER, ARTICLE 39) All Members, in signing the Charter, have agreed to cooperate with those measures (ARTICLE 40), thus, arguably, the States were forced to submit to the SC’s determination that their State officials, suspected of crimes within the international criminal court’s jurisdiction (i.e. war crimes, crimes against humanity, genocide, torture, etc.), no longer could claim immunity for those acts committed in violation of international criminal law. In the case of the ICC, it must be asked (the United States is asking), do State officials lose their immunity because the signing parties of the Rome Statute agreed to surrender those immunites for their State officials committing international crimes. Finally, as some scholars argue, it could also be argued that customary international law holds that crimes against humanity are not the kinds of acts considered “official” and therefore, are imputed with the same immunity as other official acts completed for the State.]

6. DIPLOMATIC IMMUNITY - What is the difference between Functional immunity v. diplomatic immunity v. consular immunity?]
i. Functional immunity, is an immunity going to the State –
1. is absolute (except international crimes)
2. acts performed in official capacity
ii. Diplomatic immunity
1. property: attach to premise and assets used by the State to complete its duties in diplomatic service
a. premise is inviolable
b. property immune from search, requisition, attachment [include diplomatic bag]
2. personal immunity (and family)
a. exemption from jurisdiction of foreign courts
b. cease with the end of his/her function
c. immunities:
i. arrest or detention (persona non grata rule)
ii. from criminal jurisdiction
iii. except: commercial action
iv. inviolability of residence, papers, correspondence
v. exempt from dues and taxes
7. CONSULAR IMMUNITY – What is the difference between a consul and an embassy?
a. Protect commercial interests of visiting State
b. Render assistance to nationals of that State
c. Notary assistance
d. What is the limitation of the immunities of the consul? - Limited immunity:
i. No personal immunities
ii. Immune from criminal and civil jurisdiction for acts done in official capacity to exercise consular functions
iii. Immune from customs duties and inspection, taxes [What about concern about carrying of drugs? What about dangerous weapons? What about weapons of mass destruction?]
8. Immunity from foreign court jurisdiction or for execution of foreign judgement against property or assets of the State –
a. [hypo: What if Estonia executes a contract with Microsoft whereby the Estonia promises to pay Microsoft $1 bln for developing a computer system for all its embassies abroad? Microsoft complies with its promise. Estonia fails to pay. May Microsoft sue Estonia? If so, and Microsoft wins, may Microsoft be allowed a judgement that will call for an attachment on Estonian government assets/funds invested in Bank of America in the United States?]
b. jure privatorum (performed by the State in a private capacity as a legal person subject to private law) see p. 92
c. but, only limited State property (not those used for official business, only those used for commercial purposes.

9. Right to respect for life and property of the State’s nationals and State officials abroad.

1. 1970 Declaration – READ, Principle # 6
2. What about the status of the 5 Permanent members of the UN?

vi. NON-INTERVENTION in the Internal and External Affairs of other States
Discuss on Monday: Nicaragua v. USA
1. READ: 1970 UN Declaration, Principle #2.
2. Exceptions - UN Security Council, Chapter VI, VII
a. military
i. Self defense (preemptive acts?) What about Iraq?
ii. Humanitarian intervention
b. Economic pressure/coercion
i. aid
ii. influence on IMF, World Bank
iii. whether or not will allow admittance to certain institutions: WTO, EU, NATO, etc.
1. READ:UN CHARTER, Article 2(4)
2. What does it mean, “the States decided to agree upon sweeping self-limitations of their sovereign prerogatives.” (note: interference was allowed in the serving of self interest of the State, see p. 98)
3. Absolute prohibition of military force
a. Exceptions
i. Chapter VII (collective enforcement measures)
ii. Article 51 (self defense)
4. no prescription of ‘the threat or use of economic measures’ was rejected. Do you think that such a prescription would be a good or a bad idea?
5. not pertaining to internal disputes, e.g. civil wars, against insurgents, liberation movements
6. became part of customary international law – see Nicaragua case
7. What problems were apparent to developing nations?
a. Wars of national liberation
b. Wars against oppressive minority rule in Namibia, Rhodesia, South Africa
c. Economic coercion used to subjugate developing countries
d. Stronger State uses war to subjugate – occupy territory (Israel takes Palestinian lands) [note: Arabs attacked Israel in ’67 war)

8. Result: 1970 Declaration and 1974 Declaration on the Definition of Aggression of 1974. (note: emanating from the UN General Assembly. Why?)
a. No threat or use of armed force against
i. States (UN Charter)
ii. Peoples having a representative organization, i.e. national liberation movements; colonized peoples, peoples under foreign occupation, under racist regimes (1970 Declaration: Principle #1 and #5)
b. Illegal: Assistance to rebels in the form of provision of weapons or other support (threat, use of armed force, prohibited intervention in the internal/external affairs of other States – Nicaragua case)
c. Force not to be used to forestall an imminent attack (pre-emptive attack/anticipatory self defense) (U.S., UK, Israel view is different – see September 2002, United States National Security document.
d. Territory acquired during act of force (whether in self defense or not) must be returned – conquest does not transfer territory. All States enjoined from recognizing the territorial expansion. (1970 UN Declaration, Principle 1, para. 10)

States must make a bona fide endeavor to resolve their disputes peacefully
****NEW STAGE OF DEVELOPMENT, one of the most significant developments of the post war years!
1. Principle imposing respect for human rights
2. Why does the author say, this principle is ‘competing - if not at loggerheads – with the traditional principles of respect for the sovereign equality of States and of non-interference in the domestic affairs of other States”?
3. International Bill of Rights:
a. UN Declaration of Human Rights (1948)
b. ICCPR (1966)
c. ICESCR (1966)
4. No State currently challenges the concept that human rights must be respected everywhere
5. general principle emerged – prohibiting gross and large scale violations of basic human rights – make delinquent State and its actors accountable to the whole international community
6. trend: let international organization deal with gross violations, the UN
1. Undermine
a. Territorial integrity (Why?)
b. dynastic legitimatation of power, despotism
c. empires
d. colonial rule
e. Dynamite! R. Lansing, Secretary of State for Wilson, 1919: “the phrase [self determination] so deeply cherished and so warmly advocated by President Wilson was simply loaded with dynamite…[The] fixity of national boundaries and of national allegiance, and political stability would disappear if this principle was uniformly applied.”
2. READ: 1970 Declaration, Principle # 5.
a. French Revolution, Woodrow Wilson (14 Points)
b. throw out old, State oriented approach
c. self-determination –
i. peoples and nations were to have some say in international dealings
ii. can’t be ceded or annexed with territories - need plebiscites or referendums
iii. call for consent of the governed
iv. rights to choose own rulers
v. be free from external oppression
3. Slow to be accepted (ideological in form, anti status quo)
4. Today – over-reaching guideline
a. Anti-colonialism
b. Ban on foreign occupation
c. All racial groups be given full access to government
i. Internal self determination – racial groups subject to discrimination and oppression by government
ii. External self determination – colonial peoples and people under foreign occupation

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Last Updated - 23-9-02