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L2 + L3

Q: What arguments exist against listing pacta sunt servanda as jus cogens?

Jus cogens norms are non-derogable. Pacta sunt servanda allows for non-performance: 1. Article 61 : Supervening impossibility of performance. 2. Article 62 : Fundamental change of circumstances (rebus sic stantibus). - Customary law can create exceptions through new practices or norms.

Q: What are differences between jus cogens and erga omnes?

Jus cogens : - Substantive characterization. - Overrides treaty and customary law. - Non-derogable. Erga omnes : - Relates to who can claim for breaches. - Owed to all states. - States have legal interest even without direct injury.

53 important questions on L2 + L3

What example illustrates the fourth criterion of state recognition, and why did it fail?

The example of Tibet, claiming independence from China for 30 years.
Tibet refused legal relations with other states.
No recognition under Montevideo criteria.
Known as the 'Hermit Kingdom'.

What arguments exist against listing pacta sunt servanda as jus cogens?

Jus cogens norms are non-derogable.
Pacta sunt servanda allows for non-performance:

1. Article 61: Supervening impossibility of performance.
2. Article 62: Fundamental change of circumstances (rebus sic stantibus).
- Customary law can create exceptions through new practices or norms.

What are differences between jus cogens and erga omnes?

Jus cogens:
- Substantive characterization.
- Overrides treaty and customary law.
- Non-derogable.
Erga omnes:
- Relates to who can claim for breaches.
- Owed to all states.
- States have legal interest even without direct injury.

How can customary practice affect treaty obligations?

Custom's fluid nature allows breaching a treaty obligation to generate a new customary law norm.
A breach may lead to a new exception or a relevant "subsequent practice."
Recognized as a mechanism to modify existing obligations over time.

What are states in the context of international law according to Gleider Hernández?

States are dominant actors, possessing international legal personality.
They have the capacity to enter rights and obligations.
Concept of states involves sovereignty, unaffected by other actors.
Hold plenary legal rights and can create legal persons.

What criteria define a state as per the Montevideo Convention?

Must possess a defined territory.
Should have jurisdiction over a permanent population.
Territory and population must be controlled by an 'effective government'.
Recognized as evidence of customary international law.

What are two emerging criteria for statehood discussed?

State can be constituted by chosen self-determination.
Aspiring statehood needs a commitment to human rights and democracy.
Examples include the dissolution of Yugoslavia.

What does the recognition of governments entail according to the text?

Acknowledgment of existing states with new governments.
Change may occur through undemocratic means.
Example: U.S. recognized Guaido over Maduro in Venezuela.

How do international organisations differ from states according to Gleider Hernández?

Created by states, fulfilling specific purposes.
Unlike states arising from people and territory.
Formed by a formal structure using a 'constituent instrument', often a treaty.

What is explored in the chapter regarding the legal personality of organizations?

Legal personality origins and law-making capacity
Organization structure and autonomy
Decision-making and administrative roles: UN example
Six UN principal organs
Subsidiary organs and specialized agencies
Role in state cooperation

How are the United Nations' principal organs structured and what is their role?

- UN has six principal organs:

General Assembly
Security Council
International Court of Justice
Economic and Social Council
Trusteeship Council
Secretariat

Includes specialized agencies
Facilitates global cooperation and conflict resolution

What do the specialized agencies and subsidiary organs contribute to international organizations?

Specialized agencies: numerous, diverse functions
Subsidiary organs: created by principal organs
Competence varies: general or situation-specific
Aid in decision-making, conflict resolution
Enhance global cooperation

What factors are considered under the Montevideo Convention (1933) for becoming a new state?

A new state must consider these factors:

Population: A permanent population.
Territory: A defined territory.
Effective Government: Control and authority.
International Relations: Capacity to enter into international relations.

What are the international law implications of Greenland's annexation by the United States without Denmark's consultation?

Violation of Sovereignty: International law respects state sovereignty; Denmark’s consent is crucial.
Use of Force: Threat or use of military force violates the UN Charter.
Invalid Treaty: The treaty lacks validity without Denmark’s participation.

What international law issues arise from the annexation of Greenland by the US without Denmark's consultation?

Self-determination: Greenland's residents' right to decide their political status.
Art. 2.4 UN Charter: Prohibits use of force threatening territorial integrity.
Law of Treaties: Requires valid consent; uninvolved states (Denmark) may have rights.
Peremptory norms: Fundamental principles; cannot be violated.

What role does the prohibition of force play in the US-Greenland treaty scenario?

Prohibition of force: Fundamental international law principle.
Art. 2.4 UN Charter: Bars aggressive threats or uses of force.
Nullity: Agreements using force can be void.
International security: Threats affect global peace dynamics.

How are indigenous peoples' rights potentially affected by the US-Greenland treaty?

Indigenous peoples: Rights to cultural, social, and economic integrity.
Self-determination: Essential for maintaining autonomy.
Statehood: Changes political status without consent.
International law: Protects minority rights globally.

Explain the significance of Denmark’s involvement in the US-Greenland treaty situation.

Denmark: Holds political authority over Greenland.
State sovereignty: Ignored if bypassed in agreements.
International relations: Requires mutual respect among states.
Legal validity: Treaties without relevant stakeholders may lack legitimacy.

What international law principles assess the validity of the U.S. wanting to control Greenland without Denmark's consent?

Art. 2.4 UN Charter: Prohibits force against territorial integrity or political independence.
Law of Treaties: Treaties must respect existing sovereignty.
Peremptory norms of international law: Fundamental principles overriding conflicting laws.
Nullity: Unilateral treaties affecting sovereignty without all parties' consent are void.

How does international law assess the action involving Greenland and the U.S.?

Self-determination principle impacts statehood.
Indigenous peoples have rights that need consideration.
Law of Treaties mandates proper consultation and legitimacy.
Greenland's status linked to agreements and U.S. intentions.

Assess the action of annexing Greenland to the U.S. from the international law perspective.

International law principles: Requires sovereign consent.
Issue: Greenland's annexation without Denmark's consultation.
Violation: Sovereignty and territorial integrity principles.
Consent importance: Essential from all affected nations.

How could Canada violate international law by stationing U.S. ships?

Neutrality breach: Canada may breach neutrality.
Support contribution: Allowing military use implies indirect involvement.
UN Charter: Violates peace and security principles if action supports conflict.

What is the significance of treaties in international law according to the VCLT?

Treaties are crucial for creating binding obligations.
Govern matters like creation, interpretation, exclusion, and termination.
Central to international law principles.
Outlined by the Vienna Convention on the Law of Treaties (1969/1980).

How does the Vienna Convention on the Law of Treaties (VCLT) relate to treaties between states and international organizations?

VCLT concerns treaties between states.
Vienna Convention (1986) deals with international organizations.
Similar content to VCLT but not in force.
112 States are parties to VCLT.

What are the main sources of international law according to Article 38(1) of the ICJ Statute?

Primary Sources: Treaties, customary international law, and general principles of law.
Article 38(1): No clear hierarchy is established among these sources.
Historical Use: General principles are a ‘fall-back’ for resolving disputes.
Treaty Primacy: Often considered first for legal clarity.

How do lex posterior and lex specialis influence the hierarchy of international law sources?

Lex Posterior: Later laws modify earlier ones.
Lex Specialis: More specific laws take precedence over general ones.
Implication: Treaties often override customary laws due to specificity.
Limitation: Excessive deviation from customary laws risks modifying treaty principles.

What is the role of subsidiary sources in international law?

Subsidiary sources have significant practical importance.
Judicial decisions and publicist writings are subsidiary means, e.g., ILC Reports, Draft Articles.
IO resolutions, General Assembly, and Security Council statements are authoritative.
Used to interpret treaties or establish customary legal rules.

Describe the hierarchy of sources in international law.

Article 38(1) and peremptory norms or jus cogens are key sources.
Conflicting treaties with jus cogens become void.
Customary law or general principles may also face conflicts.

Critically analyze the criteria for establishing a new customary rule in international law.

Customary law lacks objective measures like duration or uniformity.
Brief practices can establish rules (North Sea Continental Shelf).
Uniformity isn't essential; exceptions like Nigeria, Anglo-Norwegian Fisheries apply.
Consistency allows for persistent objections.

What is the significance of judicial decisions under Article 38(1) of the ICJ Statute?

Judicial decisions are a subsidiary source of international law.
Article 59 states decisions have "no binding force" beyond specific parties/cases.
Yet, they illustrate important principles of international law.
Cases often clarify disputed treaty provisions.
They indirectly contribute to understanding law applications.

What is the implication of giving judges outsized influence in international law development?

Giving outsized influence to judges sidelines States.
States are the central actors in international legal development.
Relies on judicial decisions from English-language international lawyers.
Transposes common law traits where cases are sources of international law.
In civil law, courts/tribunals do not develop the law.

What is the significance of jus cogens in international law according to the text?

Imposes a hierarchy of norms in international law.
Considered higher than ordinary norms.
Validity lacks clear source, might have moral elements.
Dependent on State recognition.
Non-derogable under Article 53 VCLT.
Global applicability, unlike treaties or customs.
Conceptual possibility of 'regional jus cogens'.

What are the further effects of jus cogens not in a treaty as recognized by the ILC?

Duty to end a breach (Art 40 ARSIWA).
Obligation not to recognize breaches as lawful (Art 41(1) ARSIWA).
States may refuse decisions by organizations breaching jus cogens.
Reservations to treaties can be invalid if violating jus cogens.
Entities linked with breaches won’t be recognized.

How can the character of jus cogens impact state obligations and immunities?

Jus cogens norms don't require international tribunals for jurisdiction consent (Armed Activities in the Congo).
These norms do not override State immunities (Jurisdictional Immunities of the State).

How are erga omnes characterized in international law?

Owed to all states and some organizations.
States can enforce even without direct injury.
Example: ICJ cases on obligations like the Rohingya genocide.

Can pacta sunt servanda be considered a jus cogens norm?

It is a fundamental principle but due to the consent-based nature, it is not a jus cogens norm.
Embodied in Article 26 VCLT (Vienna Convention on the Law of Treaties).

How does international law allow states to evade responsibility for treaty breaches?

Recognizes circumstances precluding wrongfulness in ARSIWA articles 20-25.
Allows states to invoke:

1. Self-defence.

Necessity.
Countermeasures.

- These validate non-compliance despite a breach.

What is the range and diversity of international organisations as described by Hernández?

Between 500 and 700 organisations exist today.
Enormous diversity: from specific tasks like river treaty monitoring to wide-ranging bodies like the UN.
Range includes specific and general activities and jurisdictions.

How do international organizations function as international legal persons?

Law-making and policy-making activities
Underpin international legal frameworks
Provide forums for state, NGO, corporate cooperation
Enhance global governance and legal study importance

Describe the influence of international organisations on domestic legal systems.

Can change a state's laws to meet organisational objectives.
Create obligations on individuals within states.
Examples: WTO standards, UN Security Council resolutions.

How is international law perceived in terms of political neutrality?

International law is not seen as politically neutral.
It embeds biases and preferences in its structure.
There is aspiration towards neutrality.
Focus on understanding, not finding a right answer.

What is Anne Peters' suggestion about the process of 'humanisation' in international law?

International law has undergone 'humanisation.'
The individual is now paramount.
Law-formation may occur via tacit consent.
Silence can support binding customary norms.
Jus cogens and peremptory norms may apply without express consent.

What is the classical view of international law regarding the consent of States?

The classical view sees international law as rooted in State consent.
Only obligations agreed upon by a State are binding.
Reciprocity principle: States consent to limit actions to influence others.
Consent can be explicit or tacit.
UN Charter Article 2(2) reflects consent and good faith.

How do contemporary theories challenge the universality of international law?

Regional traditions question Eurocentric views (e.g., Chinese, Islamic, Latin American).
'Third World Approaches' highlight colonial legacies.
Feminist approaches critique gender hierarchies.
Marxist perspectives link law to capitalism.
International relations theories view law as political.

Why has international law been considered inferior to domestic legal orders?

Seen as 'lesser' or inferior to domestic laws.
Linked to the shift from naturalism to positivism.
Debate over law vs. morality during the Enlightenment.
Lacks central legislative, adjudicative, and enforcement organs.
Absence of a centralized law-making authority.
Lacks compulsory enforcement mechanisms.

How do Simma and Verdross challenge the classical view of consent in international law?

An overarching consensus can supersede individual State consent.
Equal, sovereign States remain bound by an international legal order.
Recognizes "original norms" or peremptory norms (jus cogens).
These norms create imperative law beyond individual consent.

What common challenge do contemporary theories present to international law?

They dispute the claimed universality and neutrality.
Emphasize political influences.
Include diverse schools: regional, feminist, Marxist, and international relations theories.
Suggest complexity beyond fixed legal structures.

When did a major international court uphold a plea of fundamental change of circumstances?

A major international court upheld a plea of change of circumstances.
This related to the outbreak of an internal armed conflict.
The conflict occurred in Yugoslavia.

What are the VCLT grounds for terminating or suspending treaty obligations?

Consent of all parties or treaty provision (Arts 54, 57)
Intended but unprovided (Art 56)
New treaty on the subject (Art 59)
'Material breach' by a party (Art 60)
'Impossibility' due to object loss (Art 61)
'Fundamental changes of circumstances' (Art 62)

What was the outcome of the Anglo-French Continental Shelf arbitral award?

France made a reservation to Article 6 of the Treaty on the Continental Shelf.
UK objected, but the reservation was 'soft.'
Reservation was not severed; entire provision excluded for both parties.
Non-objecting parties accepted France's reservation.
This led to asymmetry in treaty relations.
Some treaties prohibit reservations (e.g., UNCLOS, Rome Statute of ICC).

In what circumstances can a state unilaterally terminate a treaty?

Requires extreme scenarios for 'impossibility' (e.g., object disappearance)
'Fundamental change of circumstance' used in extreme conditions
High threshold for material breach (central to treaty will suffice)

What is the legal situation between a reserving and objecting State when a reservation is not contrary to the treaty's purpose?

A single objection doesn't invalidate the reserving State's party status.
Only reservations against the treaty's purpose affect status.
Hard objections mean the objecting State doesn't see the reserving State as a party.
Soft objections allow the treaty to enter into force between the States.
Asymmetrical obligations result between reserving and objecting States.

Can a government minister sign treaties binding the state in their area of competence?

Heads of State, Heads of Government, and Foreign Ministers can bind the state (Article 7(2) VCLT).
Ministers with specific responsibilities have 'full powers' (e.g., Finance, Agriculture).
Article 8 VCLT allows state confirmation of a treaty signed by a minister without full powers.

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International Law

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