Silvia Martis Tabusca - International Law

7/22/2019 Silvia Martis Tabusca - International Law

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Silvia

Martiș

Tăbușcă, PhD

Romanian-American University

School of Law

International Law

International Business Class

Spring 2012

Public International Law



Silvia

Martiș

Tăbușcă, PhD


School of Law

International Law

Course 2


Spring 2012




Silvia

Martiș

Tăbușcă, PhD


School of LawPublic International Law

Two major sections to the course:

1. “Procedural” – To whom doesinternational law apply and how is it

created?

2. “Substantive” – What is the content of

international law?



Silvia

Martiș

Tăbușcă, PhD



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” orfrom custom pertaining to the relations between

political states and regarded as binding on those

states.



Silvia

Martiș

Tăbușcă, PhD



Implications of the “textual” definition for a discussion of

International Law’s 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”:

Initially based on the

divine, and then on humanreason.

Antiquity or

perhaps theearly Middle

Ages

Historical Timeline

Defining International Law

http://stjohns-chs.org/english/newbritlitphotos/medieval.jpeg



Silvia

Martiș

Tăbușcă, PhD






• 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

http://www.luther.de/e/worms.html



Silvia

Martiș

Tăbușcă, PhD




Historical Timeline




• Classical conception of international law: states

consenting to rules governing international conduct

19th Century

By this period, natural

law mostly supplantedby positivist conception

of consenting states

http://www.cottontimes.co.uk/cottonpix/newcengine.jpg



Silvia

Martiș

Tăbușcă, PhD




Historical Timeline






End of WWII

Challenge to the

“classical”conception?

Human Rights:

• international law that

governs how a state

treats human beings

• a natural law-like visionthat does not sit well with

the “classical”

conception

http://www.humanrightsreference.com/images/photo06.jpg



Silvia

Martiș

Tăbușcă, PhD




Historical Timeline






• Is the state-centric classical conception still fully

accurate? Modernity

A “modern” definition of international law?:

“international law is the body of lawintegrating the world as a whole into a

single world community, subject to the rule

of law”





Silvia

Martiș

Tăbușcă, PhD



Historical Timeline

First theoretical hypothesis:

“Pseudo-theories” of International Law

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

WWII

Cold War

War on

Terror?



Silvia

Martiș

Tăbușcă, PhD



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 internationalpostal 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



Silvia

Martiș

Tăbușcă, PhD


School of Law

International Law

Course 3


Spring 2012




Silvia

Martiș

Tăbușcă, PhD





War in Iraq: U.S. Efforts to Justify Actions

Using International Law• Secretary of State Powell on Feb. 5,

2003

• Iraq’s non-compliance with

Security Council Resolution 1441

• Iraq could provide weapons to

terrorists, placing the United

States at grave risk

http://usinfo.state.gov/regional/af/images/powell-nov02.jpg



Silvia

Martiș

Tăbușcă, PhD





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



Silvia

Martiș

Tăbușcă, PhD





• 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?



Silvia

Martiș

Tăbușcă, PhD



“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 articulatingshared values.



Silvia

Martiș

Tăbușcă, PhD



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 lookingfor 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 thereforeemanate 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.”

http://www.invispress.com/law/international/lotus.html








Silvia

Martiș

Tăbu

șcă,

PhD



Sources of International 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.





Silvia

Martiș

Tăbu

șcă,

PhD



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-stateactor (other than an international organization) will not

be an international treaty.

• Anglo-Iranian Oil Case

http://www.scribd.com/crlstinaaa/d/3846737-The-Eastern-Greenland-Case-

http://www.icj-cij.org/docket/index.php?sum=278&code=poi&p1=3&p2=3&case=32&k=ce&p3=5


http://www.icj-cij.org/docket/index.php?sum=82&code=uki&p1=3&p2=3&case=16&k=ba&p3=5






http://www.scribd.com/crlstinaaa/d/3846737-The-Eastern-Greenland-Case-



Silvia

Martiș

Tăbu

șcă,

PhD




Creating Treaties

• Vienna Convention on the Law of Treaties ,1969/80

Article 2

A “treaty” is an international agreementconcluded 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.



Silvia

Martiș

Tăbu

șcă,

PhD




Legal Effect of Treaties

• Vienna Convention on the Law of Treaties

Pacta Sun t Servand a

Article 26

Pacta sun t servanda

Every treaty in force is binding upon the parties to it and

must be performed by them in good faith.





Silvia

Martiș

Tăbu

șcă,

PhD




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 orrights 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 intendthe 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.





Silvia

Martiș

Tăbușcă, PhD


School of Law

International Law

Course 4


Spring 2012




Silvia

Martiș

Tăbușcă, PhD



Subjects of International Law

• State is a legally defined entity.

• Modern international law sets out four basic criteria for

a state:

1. A permanent population2. A defined territory

3. A government

4. A capacity to enter into relations with other states





Silvia

Martiș

Tăbușcă, PhD




Key Subjects of International Law: The State

2. Defined Territory:

• Size: No maximum or minimum size

• Generally requires occupation and control

http://ro.wikipedia.org/wiki/Fi%C8%99ier:Nauru_map_romanian.svg

http://www.doctorswithoutborders.org/images/news/maps/russia.jpg



Silvia

Martiș

Tăbușcă, PhD





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.

http://en.wikipedia.org/wiki/File:Somalia_(orthographic_projection).svg

http://outreach.web.cern.ch/outreach/public/maps/finland.jpg

http://www.mwebafrica.com/hub/ict/images/focus/drc-map.gif



Silvia

Martiș

Tăbușcă, PhD





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 someauthority to a supranational entity.

• State is agreeing, in an exercise of its sovereignty

to limit its independence.

European Union ???

• “independence” means the sole right of

decision in all matters economic, political andfinancial.

• simply entering into treaties that limit this does

not vitiate independence so long as state is not

under the legal authority of another state.









R i A i U i it P bli I t ti l L



Silvia

Martiș

Tăbușcă, PhD





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 state’sduties persist

• A state acquires a piece of territory, the state’s

obligations extend to this new territory





Romanian American University Public International Law



Silvia

Martiș

Tăbușcă, PhD




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 self-

determination of peoples

• To achieve international co-operation in solvinginternational 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

http://images.google.ca/imgres?imgurl=www.un.org/media/main/biglogo.gif&imgrefurl=http://www.un.org/english/&h=209&w=247&prev=/images%3Fq%3Dunited%2Bnations%26svnum%3D10%26hl%3Den%26lr%3D%26ie%3DUTF-8%26oe%3DUTF-8%26sa%3DN





General Assembly

Membership: All members

of the UN (Art. 9); onecountry one vote (Art. 18)

Powers:

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)

Discussion &

Recommendation:may discuss any questions or

any matters within the scope of

the present Charter and make

recommendations on same (Art.

10)

Financial

Role:

Approve

overallbudget (Art.

17)

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.)

Romanian-American University Public International Law



Silvia

Martiș

Tăbușcă, PhD



UN Security Council



Security Council

Membership: 15

members, 5 of whom arepermanent (Art. 23)

Powers:

Council Resolutions

binding under Art. 25

Chapter VI:

investigate

disputes and

make

recommendations

to resolve them

Chapter VII: Council

declares existence of

any threat to the

peace, breach of the

peace, or act of

aggression (Art. 39)

Peace and Security Powers

Economic

Sanctions

(Art. 41)

Use of Force

(Art. 42)

Appointment

Role: e.g.

along withGeneral

Assembly, ICJ

judges (Art. 4

of ICJ Stat.)






Silvia

Martiș

Tăbușcă, PhD

Romanian American University


International Court of Justice


(15 judges)

Contested Case (between

states only)

Basis for Jurisdiction (Art. 36):




(15 judges)

Contested Case (betweenstates only)

Basis for Jurisdiction (Art. 36):

Under treatiesSpecial

agreement

conferring

jurisdiction

(compromis)

Compulsory jurisdiction

Effect of Decision: binding, final

and without appeal (on the state

parties)

Advisory Opinions (requested by UN organs)

Effect of Decision: have no

binding effect, though have moral

force




Silvia

Martiș

Tăbușcă, PhD

Romanian American University



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 self -

determination through the free and genuine

expression of the will of the peoples of the

Territory.”

http://www.rnw.nl/hotspots/assets/images/western-sahara.jpg






Silvia

Martiș

Tăbușcă, PhD

y

School of Law

International Law

Course 5


Spring 2012





Silvia

Martiș

Tăbușcă, PhD

y


State Jurisdiction Over Territory

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)

• 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?






Silvia

Martiș

Tăbușcă, PhD

y



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)


http://www.icj-cij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=5







Silvia

Martiș

Tăbușcă, PhD

y

School of Lawub c te at o a a





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 somesort 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).


http://www.lawschoolcasebriefs.net/2012/04/island-of-palmas-case-united-states-v.html

http://www.lawschoolcasebriefs.net/2012/04/island-of-palmas-case-united-states-v.html



Silvia

Martiș

Tăbușcă, PhD

School of Law





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 whichexercises sovereignty

• Abandonment: renounced by one state, and

left as res nullius

• Presumption against abandonment




Silvia

Martiș

Tăbușcă,

PhD

School of Law


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






Silvia

Martiș

Tăbușcă,

PhD

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 possessinga clear identity and its own characteristics

2. Relationship with a territory

3. A people should not be confused with ethnic,

religious or linguistic minorities




Silvia

Martiș

Tăbușcă,

PhD

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 self-

determination of peoples... and thus possessed of a

government representing the whole people belonging tothe 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)






S h l f LPublic International Law



Silvia

Martiș

Tăbușcă,

PhD

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 claimsovereign authority over the relevant zone

• Indonesia denied the court’s competence

• Australia argued case could not be heard without

Indonesia because it affected Indonesia’s rights

• Portugal claimed that the Timorese right to self-

determination was a right erga omnes

• Court agreed with that erga omnes, but concluded

it could not hear the case without Indonesia





Silvia

Martiș

Tăbușcă,

PhD

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?





Silvia

Martiș

Tăbușcă,

PhD

School of Law

International Law

Course 6


Spring 2012





Silvia

Martiș

Tăbușcă,

PhD

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.

http://www.icj-cij.org/docket/index.php?sum=359&code=hvm&p1=3&p2=3&case=69&k=b3&p3=5

http://www.icj-cij.org/docket/index.php?sum=359&code=hvm&p1=3&p2=3&case=69&k=b3&p3=5

http://www.putmap.com/image584.jpg







Silvia

Martiș

Tăbușcă,

PhD

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 state’s baselines

• Determining baselines

• Anglo-Norwegian Fisheries Case

• low-water mark vs. straight baselines

• Court concluded that straight baselines wereappropriate given the nature of the Norwegian

coast





Silvia

Martiș

Tăbușcă,

PhD

School of Law

Rough comparison

of territorial sea with

and without straight

baselines





Silvia

Martiș

Tăbușcă,

PhD

School of Law

Here, more than

24 miles, so canclose off only part

Area of indentation larger

than semi-circle whose

diameter is a line drawn

across the mouth of the bay

Straight baseline can bedrawn where this line is not

more than 24 miles

Where are

straightbaselines

appropriate?

• LOS Art. 10:

Bays – an

indentation is abay so long as its

area is as large

as, or larger

than, that of the

semi-circlewhose diameter

is a line drawn

across the mouth

of that

indentation .



Rights over



Silvia

Martiș

Tăbușcă,

PhD

School of LawRights over

Territorial Sea

Right of innocentpassage 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

InternalWaters

Straight

baseline for

24 miles of

oversized bay

(Art. 10)







Silvia

Martiș

Tăbușcă,

PhD

School of Law


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





Silvia

Martiș

Tăbușcă,

PhD

School of Law

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 government’s

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









Silvia

Martiș

Tăbușcă,

PhD

School of Law

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 state’s territory);

• jus sanguinis (nationality by virtue of the

nationality of one’s 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





Silvia

Martiș

Tăbușcă,

PhD

School of Law

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 state’s key interests

• E.g. espionage, counterfeiting, conspiracy to violate

immigration or customs laws

4. Universal Principle: some crimes so heinous thatirrespective of where they are committed, states may seek to

regulate them

• E.g. crimes against humanity, war crimes, certain

terrorism crimes, piracy





Silvia

Martiș

Tăbușcă,

PhD

School of Law

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 aninternational 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.”



http://www.ajcarchives.org/ajc_data/files/1961_7_international.pdf


http://www.shoa.de/pictures/p_adolf_eichmann2.jpg





Silvia

Martiș

Tăbușcă,

PhD

School of Law

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





Silvia

Martiș

Tăbușcă,

PhD

School of Law



• foreign nationals must comply with the state’s 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 treatmentcannot fall:

• Competing concepts of “national treatment” and

“minimum treatment”





Silvia

Martiș

Tăbușcă,

PhD



• Concept of “minimum treatment”:

• Neer case (U.S.-Mexico Claims Commission)

• to be a violation of international law, the treatmentof 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





Silvia

Martiș

Tăbușcă,

PhD



• 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 fairnessand 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 statethat

(a) is not for a public purpose, or

(b) is discriminatory, or

(c) is not accompanied by provision for just

compensation

http://193.111.198.148/medoil/oil/turm.jpg







Silvia

Martiș

Tăbușcă,

PhD


• 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" asthe 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 ofthe 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







Silvia

Martiș

Tăbușcă,

PhD


• 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 intimatelyconnected 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







Silvia

Martiș

Tăbușcă,

PhD


• 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 noexception 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





Silvia

Martiș

Tăbușcă,

PhD

International Law

Course 7


Spring 2012





Silvia

Martiș

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

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Silvia Martis Tabusca - International Law

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