#10915 - Outline International Law I - International Law I

International Law I

1. What is a Nation-State?

   1. The Sovereign State

      1. Definition - SPLIT

         1. Every Nation which governs itself, under whatever form, and which does not depend on any other nation. (E. De Vattel, The Law of Nations - pg. 474)

         2. Sovereignty is the totality of international rights and duties recognized by international law. (pg. 475)

      2. General Law: (1) [E]ach Nation should contribute as far as it can to the happiness and advancement of other nations, and (2) [E]ach Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature. (E. De Vattel, The Law of Nations - pg. 473)

      3. Equality of Nations

         1. Nations are by nature equal and hold from nature the same obligations and the same rights. (pg. 473)

         2. What is lawful of unlawful for one Nation is equally lawful or unlawful for every other nation. (pg. 474)

         3. "No principle of general law is more universally acknowledged than the perfect equality of nations." The Antelope, 23 U.S. 66, 122 (1825).

         4. The organization is based on the principle of the sovereign equality of all its Members. (Article 2, Charter of the United Nations - pg. 961)

      4. Marks of Sovereignty: The rights, subject to "the lawes of God and nature" to:

         1. Make laws

         2. Name magistrates

         3. Hear final appeals

         4. Grant pardons

         5. Coin money

         6. Set weights and measures

         7. Impose taxes

         8. Wage war

         9. Exact "liege fealtie and homage"

   2. Recognition and Succession

      1. When does a State exist?

         1. Constitutive Theory vs. Declaratory Theory - SPLIT

            • Declaratory Theory: The political existence of the state is independent of recognition by other states. (Article 3, The Montevideo Convention - pg. 477)

              • "The state as a person of international law should possess (a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with the other states." (Article 1, The Montevideo Convention - pg. 477)

              • The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. (Article 6, The Montevideo Convention - pg. 477)

            • Constitutive Theory: "[A] new State before its recognition cannot claim any right which a member of the Family of Nations has towards other members. . . . Through recognition only and exclusively a State becomes an International Person and a subject of International Law" (pg. 478)

         2. TEST re existence of a state (Notes): (1) Identifiable Territory, (2) Effective Control of Government, (3) Regular Population of Human Beings, and (4) Governing Body is conducting or endeavoring to conduct foreign relations.

      2. The principle of the continuity of states

         1. "Changes in the government or the international policy of a state do not as a rule affect its position in international law. . . . [T]hough the government changes, the nation remains with rights and obligations unimpaired. (The Tinoco Arbitration - pg. 484-85)

         2. "The state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper." (The Tinoco Arbitration - pg. 485)

         3. Applies to:

            • De jure governments: Legal government (concerning law)

            • De facto governments: (1) Government established itself and (2) maintains a peaceful administration with the acquiescence of the people for a substantial period of time. (See The Tinoco Arbitration - pg. 487)

      3. U.S. courts will generally not give effect to acts by states that the U.S. does not recognize. (See Cyprus Case - pg. 497-98) ("[W]ho is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts[.]")

         1. Restatement (Third) of the Foreign Relations Law of the United States § 205(1): "[A]n entity not recognized as a state, or a regime not recognized as the government of a state, is ordinarily denied access to courts in the United States[.]" (Supp. I - pg. 1)

            • Acts of Recognition (Notes):

              • Sending and receiving ambassadors

              • Making agreements (e.g. treaties/contracts)

            • US POLICY: It is not the policy of the government of the United States to recognize other governments, EXCEPT when it is...

         2. Restatement (Third) of the Foreign Relations Law of the United States § 205(2): "[A] regime not recognized as the government of a state is not entitled to property belonging to that state located in the United States[.]" (Supp. I - pg. 1)

         3. BUT, in some instances, courts in the United States can give effect to the acts of nonrecognized but "de facto" regimes if the acts relate to purely logical matters. (Cyprus Case - pg. 497)

            • Restatement (Third) of the Foreign Relations Law of the United States § 205(3): "[C]ourts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only." (pg. 497 n.15/Supp. I - pg. 1)

            • Distinction: Two types of de facto governments (Cyprus Case - pg. 499)

              • (1) Such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation.

                • Acts of State generally recognized

                  • ". . . treated as in most respects possessing rightful authority, . . . [and] its legislation is in general recognized." (pg. 499)

              • (2) Such as exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government.

                • Whether acts recognized or not recognized depends on its ultimate success as a government

                  • "The validity of its acts, both against the parent State and its citizens or subjects, depends entirely upon its ultimate success. . . . If it succeed, and become recognized, its acts from commencement of its existence are upheld as those of an independent nation." (pg. 499)

      4. Dismembratio

         1. In international law, this means "the complete dissolution of the predecessor State and replacement by several successor States." (Republic of Croatia - pg. 509)

         2. Under customary international law, in the case of "dismembratio," State property is to be distributed according to the international principle of "equity." (The Republic of Croatia - pg. 510)

            • The "Vienna Convention on Succession of States in Respect of State Property, Archives and Debt" provides for the passing of movable State property to the successor States in "equitable proportions." (pg. 510)

            • According to the "Vienna Convention on Succession of States in Respect of State Property, Archives and Debt," "State Property of the predecessor State" is property and rights which, at the date of the succession of States, were, according to the internal law of the predecessor State, owned by that State. (pg. 508)

2. Diplomatic Relations

   1. Vienna Convention on Diplomatic Relations - Key Provisions

      1. Preamble (Supp. I - pg. 5)

         1. "[T]he rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention."

            • NOTE: WHERE a nation is not a signer to the Convention, the argument to make is that the Convention is the best indication of International Law.

      2. Article 2 (Supp. I - pg. 6)

         1. "The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent."

            • There is no obligation under International Law to conduct diplomatic relations.

      3. Article 4 (Supp. I - pg. 6)

         1. "1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State."

         2. "2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément."

      4. Article 9 (Supp. I - pg. 7)

         1. (1) "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State."

      5. Article 22 (Supp. I - pg. 10)

         1. (1) "The premises of the mission shall be inviolable."

         2. (2) "The receiving State is under a special duty to take all reasonable steps to protect the premises of the mission against any intrusion of damage and to prevent any disturbance of the peace of the mission or impairment of its dignity."

            • BUT, the violation of International Law by the sending State is not an affirmative defense for the receiving State's failure to take appropriate steps to protect the premises of the mission of the sending State. (See The Diplomatic and Consular Staff Case - pg. 325)

         3. (3) "The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."

            • ALSO, Article 30(1): "The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission" (Supp. I - pg. 12)

            • BUT, the mission is not an extension of the territory of the sending State.

      6. Article 26 (Supp. I - pg. 11)

         1. "Subject to its laws and regulations...