PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAWDUTIES OF STATES To refrain from intervention in the internal or external affairs of any other States. (Art. 3) To refrain from fomenting civil strife in the territory of another State, and to prevent the organization within its territory of activities calculated to foment such civil strife. (Art. 4) To treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language and religion. (Art. 6) To ensure that conditions prevailing in its territory do not menace international peace and order. (Art. 7) To settle its disputes with other States by peaceful means in such a manner that international peace and security, and justice, are not endangered. (Art. 8) To refrain from resorting to war as an instrument of national policy and to refrain from the threat or use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with International Law and order. (Art. 9) To refrain from giving assistance to any State which is acting in violation of Art. 9, or against which the United Nations is taking preventive or enforcement action. (Art. 10) To refrain from recognizing any territorial acquisition by another State acting in violation of Art. 9 (Art. 11) To carry out in good faith its obligations arising from treaties and other sources of International Law and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. (Art. 13) To conduct its relations with other States in accordance with International Law and with the principle that the sovereignty of each State is subject to the supremacy of International Law. (Art. 14) What are obligations erga omnes? Obligations erga omnes (Latin, in relation to everyone) are obligations owed by States towards international community. E.g.: Prohibition of aggression Prohibition of genocide, piracy, slavery and racial discrimination Protection of human rights Obligation relating to self-preservation Obligations relating to the environmentSTATE RESPONSIBILITYIs a state responsible for an internationally wrongful act?YES. Every internationally wrongful act of a state entails the international responsibility of that State. (Article I, Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd Sessions in 2001, appears in the annex to General Assembly resolution 56/83 of 12 December 2001)What are the elements of an internationally wrongful act? An act or omission: Is attributable to the State under International Law: and Constitutes a breach of an international obligation of the state What conducts are attributable to the states?In Chapter 2 of the Responsibility of States for Internationally Wrongful Acts, the following conducts are considered as acts of state:a. Conduct of any of its organs (ELJ)b. Conduct of a person or entity which is empowered by the law of the state to exercise governmental authorityc. Conduct of a person or group of persons that is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.d. Conduct of a person or group of persons that is in fact exercising governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of that authority.e. To conduct a movement, insurrection or other which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration, shall be considered as an act of a new State.f. Conduct which the State acknowledges and adopts as its own. Is the State responsible for losses incurred by aliens in times of civil war?The general principle is that a state is NOT responsible for losses incurred by aliens in time of civil war. This is known as the CALVO DOCTRINE (named after Argentine Jurist Carlos Calvo). He reasoned that a state could not accept responsibility for losses suffered by foreigners as a result of civil war because to admit such responsibility would be to menace the independence of weaker states by subjecting them to the intervention of strong states, and would establish an unjustifiable inequality between nations and foreigners.When is a state responsible for the wrongful act of another state? It directs and controls another state in the commission of internationally wrongful act It aids or assists another state in the commission of an internationally wrongful act It coerces another state to commit an internationally wrongful act What are the circumstances that preclude the wrongfulness of an international act? The affected state has given a valid consent Self-defense Countermeasures Force majeure An act in situation of distress where the state has no reasonable way of saving the lives of persons entrusted to its care Act was necessary and it is the only way for the State to safeguard an essential interest against a grave and imminent peril. Compliance with jus cogens or preemtory norms. What are the forms of reparations that may be imposed on a state committing an internationally wrongful act? Restitution obligation to re-establish the situation which existed before the wrongful act was committed, provided it is not materially impossible. Compensation obligation to compensate for the damage caused Satisfaction if injury cannot be made good by restitution or compensation. It may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality. When is breach of an obligation under International Law serious? If it involves a gross or systemic failure by the responsible states to fulfill the obligation. DE JURE VS. DE FACTO GOVERNMENT De jure government is lawfully in power even though it retains little actual power. De facto government is impliedly a government which is in control but illegally so Kinds of de facto government Government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. Government of paramount force which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war. That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. STATE CONTINUITY Once the identity of a state as an international person has been fixed and its position in the international community established, the state continues to be the same corporate person whatever changes may take place in its internal organization and government. This continuity of the legal personality of the state may withstand even the most radical transformations in its constitution. STATE SUCCESSIONThe shift of responsibility over a territory from one state to another state. This is to be distinguished from a change in government or regime within an established state, as takes place for example with a social revolution or an election. Succession affects the legal identity of a state and its treaty obligations. Succession occurs with secession of states, annexation, merger and consolidation and decolonization.Kinds of State Succession UNIVERSAL when one state completely absorbs the international personality of another state and thereby becomes the sole representative at law of the rights and obligations of the latter state. PARTIAL when an existing state takes over, whether by force or voluntary cession, the sovereignty of a portion of territory formerly belonging to another state. CLEAN SLATE DOCTRINEA newly-independent state begins it existence free of the obligations of its predecessor state. It is based on the principle that a state is only bound by treaties to which it consents.