DOCSLIB.ORG

1: the State System

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1: the State System Public International Law Teaching Material Prepared by: Addisu Damtie & Mr. James Kruger Prepared under the Sponsorship of the Justice and Legal System Research Institute 2009 i Table of contents Chapter 1: Introduction--------------------------------------------------------------------------1 Chapter 2: The State System --------------------------------------------------------------------5 2.1 State Sovereignty ---------------------------------------------------------------------12 Part A. Definition of Sovereignty and History-------------------------------12 Part B. Erosion of State Sovereignty------------------------------------------18 Part C. Theories of State Behavior--------------------------------------------28 2.2 State Formation and Self-Determination of Peoples -----------------------------43 Part A. Legal and Political Issues of Statehood------------------------------43 Part B. The Right of Self-Determination-------------------------------------58 Part C. State Territory and Borders--------------------------------------------79 2.3 State Succession ----------------------------------------------------------------------94 2.4 Recognition of Governments ------------------------------------------------------104 Chapter 3: International Organizations and Other International Actors-----------111 3.1 Characteristics of International Organizations ----------------------------------112 3.2 The Structure of the United Nations ----------------------------------------------118 3.3 A Note on the African Union------------------------------------------------------136 3.4 Other International Actors: NGOs, Corporations, and Individuals----------144 Chapter 4: International Customary Law-------------------------------------------------146 4.1 Background Principles and the Hierarchy of Sources in International Law-151 4.2 Customary Law: State Practice and Opinio Juris ------------------------------165 4.3 Local and Regional Customs ------------------------------------------------------185 4.4 Which States are bound by Custom?---------------------------------------------188 4.5 Treaties and General Assembly Resolutions as Evidence of Customs ------190 Chapter 5: International Law of Treaties--------------------------------------------------201 5.1 Treaty Formation------------------------------------------------------203 5.2 Interpretation of Treaty Terms ---------------------------------------------------208 5.3 Invalidity of Treaties and Treaty Termination ---------------------------------216 5.4 Treaty Reservations ----------------------------------------------------------------227 CHAPTER 6: State Responsibility----------------------------------------------------------237 6.1 Meaning of Sate Responsibility-------------------------------------------------238 ii 6.2 The nature of State Responsibility----------------------------------------------239 6.3 The Question of Wrongfulness-------------------------------------------------241 6.4 Immutability/Attribution--------------------------------------------------------243 6.5 Ultra vires acts-------------------------------------------------------------------248 6.6 State Control and Responsibility-----------------------------------------------249 6.7 Consequences of Breach and Reparation---------------------------------------251 CHAPTER 7: War and the Prohibition on the Threat or Use of Force--------------274 7.1 History of use of force: from the ‗Just War‘ to the United Nations-----------275 7.2 The UN Charter-----------------------------------------------------------------------278 7.3 Meaning of Force ---------------------------------------------------------------------279 7.4 The Phrase ‗Against the territorial integrity or political independence of any state -------------------------------------------------------281 7.5 Categories of Force--------------------------------------------------------------------282 7.6 The right of self-defense---------------------------------------------------------------284 7.7 Terrorism--------------------------------------------------------------------------------286 7.8 Anticipatory or pre-emptive self-defense-------------------------------------------289 7.9 Collective Security---------------------------------------------------------------------291 7.10 International Law and the Preemptive Use of Force against Iraq-------------294 Chapter 8: International Dispute Resolution----------------------------------------------309 8.1 Negotiation, Arbitration, and Mediation -----------------------------------------309 8.2 The International Court of Justice ------------------------------------------------311 8.3 Other International Tribunals------------------------------------------------------336 Chapter 9: National Courts and International Law Issues------------------------------342 9.1 Customs and Treaties as Part of the Law of Ethiopia --------------------------343 9.2 Bases of State Jurisdiction ---------------------------------------------------------344 9.3 Extradition----------------------------------------------------------------------------347 Reference Materials-----------------------------------------------------------------------------351 iii CHAPTER 1: INTRODUCTION This text is meant for Ethiopian students studying public international law under Ethiopia‘s new curriculum. The first question for students may be, Do I really have to read this entire text in order to understand international law? The answer is, no. The instructor most likely will not be able to cover all the material in the span of one semester. It is recommended rather that the instructor use his or her discretion and give readings and assignments to suit his or her needs. The extra material is there, however, in the case that the student has a particular interest in some area of international law or needs some help starting research in some area. The next question for the student might be, What is public international law? The short answer to this question is that public international law is the law that applies to international actions, whether committed by States, international organizations, or even individuals. To start simply, however, the student may think of international law as the law that governs inter-State relations. (This is to focus on States, the primary international actors, rather than secondary international actors like international organizations and individuals.) As Brierly puts it in his celebrated book, international law is ―the body of rules and principles of action which are binding upon civilized states in their relations with one another.‖ (J.L. Brierly, The Law of Nations, 1963.) Public international law may be distinguished from private international law (otherwise known as ―conflict of laws‖), which concerns the situation in a nation‘s domestic courts when another nation is involved. Thus, a concern of private international law would be whether the law of Ethiopia or Kenya is more appropriate for a private lawsuit arising out of a contract entered into by two Kenyans living in Ethiopia. Public international law involves a super-legal system that operates between States and exists separate from domestic laws. International laws are not written down in one book like the Civil Code of Ethiopia. There is no international government that has authority to pass such laws. Rather, 1 international laws are the byproduct of actions – the actions of States and other international actors like the United Nations. If the majority of powerful States in the world decided to cancel all their international commitments, then international law would cease to exist and the rules in this text would be meaningless. This is not to say that international laws are weak; States are bound together rather tightly by good will and mutual interest. The point here is that international laws depend almost entirely on the States that create these laws. For this reason, public international law has a political aspect that is lacking in other legal subjects. It is unwise to think of international law as a list of rules that can be identified and written out and discussed. The rules are built on shifting ground; they change form as the ground underneath them moves, as nations push up against one another and attempt to negotiate for a better position. There are rules in the international system of course, but they are rules of a different type. The text is organized in such a way as to give the student a proper appreciation for the nature of rules in the international system. International law textbooks tend to be written in one of two ways. Either the text starts with the rules – the so-called ―sources‖ of international law – and downplays the role of international politics, or the text starts with some discussion of the activities of the rulemakers themselves – the States – and brings out their political interests. This text adopts the latter approach and starts with a discussion of the State system. In the first place this is more true to history, because the State system came first before the development of modern international laws and their ―sources.‖ More importantly, though, this approach will reveal the core structure of international relations first – in other words, the way States are constituted and the way States treat one another. This gives the student an idea of how the game of international politics is played. Only then will the student be introduced to the ―sources‖ of international law which often are subject to political pressure and negotiation. There are certain
Load more

Recommended publications
  • Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad
    Cleveland State Law Review Volume 50 Issue 3 Article 3 2003 Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad Christopher Q. Cutler Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Criminal Law Commons, and the Criminal Procedure Commons How does access to this work benefit ou?y Let us know! Recommended Citation Christopher Q. Culter, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad, 50 Clev. St. L. Rev. 335 (2002-2003) This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. NOTHING LESS THAN THE DIGNITY OF MAN: EVOLVING STANDARDS, BOTCHED EXECUTIONS AND UTAH’S CONTROVERSIAL USE OF THE FIRING SQUAD CHRISTOPHER Q. CUTLER1 Human justice is sadly lacking in consolation; it can only shed blood for blood. But we mustn’t ask that it do more than it can.2 I. INTRODUCTION .................................................................... 336 II. HISTORICAL USE OF UTAH’S FIRING SQUAD........................ 338 A. The Firing Squad from Wilderness to Statehood ................................................................. 339 B. From Statehood to Furman ......................................... 347 1. Gary Gilmore to the Present Death Row Crowd ................................................ 357 2. Modern Firing Squad Procedure .......................... 363 III. EIGHTH AMENDMENT JURISPRUDENCE ................................ 365 A. A History of Pain ......................................................... 366 B. Early Supreme Court Cases......................................... 368 C. Evolving Standards of Decency and the Dignity of Man...............................................
    [Show full text]
  • International Court of Justice Lagrand Case
    INTERNATIONAL COURT OF JUSTICE LAGRAND CASE (GERMANY V. UNITED STATES OF AMERICA) --------------------------- COUNTER-MEMORIAL SUBMITTED BY THE UNITED STATES OF AMERICA 27 MARCH 2000 __________ - i - TABLE OF CONTENTS PART I INTRODUCTION AND OVERVIEW .................. 1 PART II THE FACTS .................................. 9 CHAPTER I FACTS REGARDING THE LAGRAND BROTHERS ....... 10 CHAPTER II THE MULTIPLE APPELLATE PROCEEDINGS ......... 15 CHAPTER III EFFORTS BY THE UNITED STATES TO IMPROVE COMPLIANCE ................................. 17 CHAPTER IV GERMANY'S SPECULATIVE AND UNJUSTIFIED CLAIMS ABOUT THE IMPACT OF CONSULAR ASSISTANCE ................................. 21 Section I. Introduction ........................... 21 Section II. The Brothers Had No Ties with Germany .................................... 22 Section III. The Memorial's Unjustified Claims About Consular Assistance .................. 25 Section IV. The Memorial's Exaggerated Claims About the Potential Impact of Mitigation Evidence ................................... 32 PART III ADMISSIBILITY .............................. 40 CHAPTER I INTRODUCTION ............................... 40 CHAPTER II GERMANY'S OTHER CLAIMS ARE INADMISSIBLE .... 42 Section I. The Court Need Only Address Germany's First Submission in Order to Do Justice Between the Parties .......... 42 Section II. Germany's Remaining Claims Are Inadmissible Because Germany Asks the Court to Assume an Inappropriate and Unauthorized Role as the Overseer of U.S. National Courts ....................... 43 - ii - Section
    [Show full text]
  • Winter 2004.Book
    NEW YORK INTERNATIONAL Winter 2004 Vol. 17, No. 1 Articles Non-Compliance with the Vienna Convention on Consular Relations and Its Effect on Reciprocity for United States Citizens Abroad Heather M. Heath ................................................................................................1 Alvarez-Machain v. United States: How Should the Ninth Circuit Determine Which Torts Are Actionable Under the Alien Tort Claims Act? Luciana Reali .....................................................................................................51 Enforcing International Labor Standards Through the Use of the Alien Tort Claims Act and Traditional Corporate Law Jonathan Fielding ..............................................................................................77 Recent Decisions Usinor Industeel v. Leeco Steel Products, Inc.. ...............................................103 The Convention on Contracts for the International Sale of Goods (CISG) does not apply to third persons who are not parties to a contract, so a dispute arising between a buyer, a seller and a third party with a security inter- est is governed by the local law of the state that has the most significant contacts to the contested property. CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V............................................111 Enforcement of an English money judgment was upheld, where defendants were Netherlands corporations authorized to do business in New York. Winter Storm Shipping, Ltd. v. TPI ..................................................................119
    [Show full text]
  • Law Review Winter 2006.Book
    NEW YORK INTERNATIONAL LAW REVIEW Winter 2006 Vol. 19, No. 1 Articles Recognition and Enforcement of United States Money Judgments in Brazil Maria Angela Jardim de Santa Cruz Oliveira.....................................................1 A Viable Model for International Criminal Justice: The Special Court for Sierra Leone J. Peter Pham.....................................................................................................37 It's Not All Mutilation: Distinguishing Between Female Genital Mutilation and Female Circumcision Natalie J. Friedenthal.......................................................................................111 Recent Decisions Jama v. Immigration & Customs Enforcement ................................................155 The United States Supreme Court held that removal of a criminally convicted alien pursuant to 8 U.S.C. § 1231(b)(2)(E)(iv) does not require advance consent from the recipient country's government. World Book v. International Business Machines Corp. ...................................163 United States District Court for the Southern District of New York followed previous Second Circuit decisions in asserting the need for plaintiffs to prove substantial effects of the alleged trademark infringement on domestic commerce to establish extraterritorial application of the Lanham Act. Bigio v. Coca-Cola Co. ....................................................................................169 In declining to hear this case of Canadian plaintiffs claiming uncompensated expropriation of property
    [Show full text]
  • Towards the Abolition of the Death Penalty in the United States of America
    AN ASSESSMENT OF THE EFFECTIVENESS OF THE UN UNIVERSAL PERIODIC REVIEW: TOWARDS THE ABOLITION OF THE DEATH PENALTY IN THE UNITED STATES OF AMERICA Alice Louise Storey This thesis is submitted to Birmingham City University in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Law Faculty of Business, Law and Social Sciences August 2018 TABLE OF CONTENTS Abstract Acknowledgements List of Terms PART I Chapter One Introduction 1.1 The Death Penalty in the United States 1.2 International Law and the Death Penalty 1.2.1 The United Nations and the Death Penalty 1.2.2 The International Death Penalty Framework 1.2.3 Other Sources of International Law 1.2.4 The Universal Periodic Review and the Death Penalty 1.3 Current Gap in the Research 1.4 Theoretical Framework 1.5 Methodology 1.6 Structure of Thesis Chapter Two The United States and International Law 2.1 The Status of International Law in the US 2.2 Key Legal Principles: Comity and Finality 2.2.1 Comity 2.2.2 Finality 2.3 The Political Framework in the US: The International Covenant on Civil and Political Rights 2.3.1 Reservations, Understandings, and Declarations 2.3.2 Self-Executing vs. Non-Self-Executing Treaties 2.4 The Adjudicative Framework in the US: The Role of the Supreme Court 2.4.1 Theory of Prominence of US Constitution Over International Law 2.4.2 Theory of Applicability of International Law Only When It Aligns with the US 2 Constitution 2.4.3 Theory of Using International Law to Assist in Interpreting the US Constitution 2.5 Challenging American
    [Show full text]
  • Implementation of Lagrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights
    The European Journal of International Law Vol. 18 no. 2 © EJIL 2007; all rights reserved .......................................................................................... Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights Carsten Hoppe * Abstract Article 36 of the Vienna Convention on Consular Relations identifi es consular information as an individual right that foreign nationals possess when arrested or detained abroad. The diffi culties encountered by these persons, however, when they seek to vindicate that right before domestic courts has become dramatically visible in the cases of foreigners on death row in the United States. In recent years, three such cases have reached the International Court of Justice (ICJ), two of which were fully litigated. In LaGrand and Avena, the ICJ ordered review and reconsideration where Article 36 rights had been violated and the legal process was already exhausted. Unfortunately, the implementation of these judgments in the United States left much to be desired. The majority opinion in the recent Supreme Court decision in Sanchez-Llamas v. Oregon, with its abrasive treatment of the ICJ, forms an unfortunate culmination point of this trend. On the other side of the Atlantic, the German Bundesverfas- sungsgericht fortunately steered a very different course. Contrary to their US counterparts, the German judges had no diffi culty in subordinating their jurisprudence to the decision of a competent international court. Thus, the German judges were prepared, under certain cir- cumstances, to afford ICJ decisions a strong guiding force, even where Germany was not a party to the respective cases.
    [Show full text]
  • The Bitter Fruit of American Justice
    A STUDY OF THE INCREASING INTERNATIONAL OPPOSITION TO AND GROWING DOMESTIC DISAFFECTION FROM THE DEATH PENALTY IN AMERICA The Bitter Fruit of American Justice examines two increasingly important factors in the debate over state execution, the conjunction of which may well signal an end to the death penalty in the United States. The first is external to the country: mounting international resistance to state execution is raising the political stakes for the United States. Much of the democratic world has abolished state execution, regarding it as a grave human rights violation. Drawing on new understandings of state sovereignty, these nations are using extradition policies and existing treaty obligations to pressure the United States to end capital punishment. The second is internal to the country: the discovery of large numbers of innocent people on America's death rows has shaken public opinion and political resolve on this issue. The moral potency and rhetorical effectiveness of the innocence argument is radically altering the terms of the debate, undermining traditional justifications for capital punishment and weakening the attitudes of even the most adamant retentionists. Alan W. Clarke and Laurelyn Whitt contend that while there have (Continued on b0ck llap) The Bitter Fruit of American Justice The international and Bitter Fruit domestic resistance of American to the death penalty Justice alan w. clarke & laurelyn whitt northeastern university press Boston Published by university press of new england Hanover and London northeastern university press Published by University Press of New England, One Court Street, Lebanon, NH 03766 www.upne.com © 2007 by Alan W. Clarke and Laurelyn Whitt Printed in the United States of America 54321 All rights reserved.
    [Show full text]
  • International Court of Justice Lagrand Case
    INTERNATIONAL COURT OF JUSTICE LAGRAND CASE (Germany v. United States of America) MEMORIAL OF THE FEDERAL REPUBLIC OF GERMANY Volume I (Text of the Memorial) 16 September 1999 TABLE OF CONTENTS VOLUME I PART ONE: INTRODUCTION 1 PART TWO: STATEMENT OF FACTS 9 PART THREE: JURISDICTION AND ADMISSIBILITY 19 I. The subject-matter of the present dispute 19 II. The legal bond establishing the jurisdiction of the Court in the present Case 21 III. The scope of the Court's jurisdiction under Article I of the Optional Protocol 23 IV. Preconditions of the jurisdiction of the International Court of Justice under Article I of the Optional Protocol 27 1. The existence of a "dispute" 27 a) The meaning of the term "dispute" 27 b) The individual issues in dispute between the parties 30 (1) There exists a "dispute" about the interpretation and application of Article 36 (1) of the Vienna Convention 30 (2) There exists a "dispute" about the application and interpretation of Article 36 (2) of the Convention 34 (3) There exists a dispute about the legal effect of the Court's Order on Provisional Measures of 3 March 1999 and the consequences arising therefrom 35 (4) There exists a "dispute" with regard to the remedies owed for the violation on the part of the United States of its international legal obligations 39 2. The existence of a dispute "arising out of the interpretation or application of the [Vienna] Convention" on Consular Relations 40 a) Introductory remarks 40 b) The dispute concerning Article 36 (1) and Article 36 (2) of the Convention 43 c) Remedies owed for the violation of the Vienna Convention falling within the scope of Article I of the Optional Protocol 44 d) The dispute concerning the conduct of the United States vis-à-vis the Court's Order of 3 March 1999 46 3.
    [Show full text]