pubinternationallaw(编辑修改稿)

pubinternationallaw(编辑修改稿)内容摘要：

and recognized by the int‘l munity … as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of GIL having the same character.‖  VC Art 54—Emergence of a New Peremptory Norm of Gen’l IL  If a new perem norm emerges, any existing treaty in conflict is void) = there is a hierarchy of norms。 can‘t K out of a preemptory norm like 2(4)  Turkey must ―consult with other Guarantors‖ before taking action。 also could have gone to SC (though Soviets would have vetoed) o Turkey:  Cyprus consented to force, so doesn‘t violate 103, thus doesn‘t violate 2(4)(prohibiting use of force), thus doesn‘t violate an int‘l norm, thus doesn‘t violate Art 53  We‘re just authorizing force when ok under 2(4)—humanitarian intervention  VC Art 26 – treaties must be performed in good faith  VC Art 31 – treaty shall be interpreted in good faith  Can‘t interpret Art IV to be superfluous (. states can always use peaceful measures) o VC Article 7—Full Powers (see above), anyone w/ full power can sign a treaty  Makarious amp。 Kutchuk initialed as leaders。 postindependence, ratified as Pres and VP (VC Art 8—Subs. Confirmation of Act Performed w/o Authorization) Later, Makarios claimed he was forced and it was an unequal treaty  but nobody put a gun to his head。 economic and political pressure only. Majority of states wanted this kind of neocolonial pressure included in VC but developed countries resisted o VC Art 51—Coercion of Rep of a State  Expression of a State‘s consent to be bound by treaty which has been procured by coercion of its representative thru acts or threats directed against him shall be w/o any legal effect. o VC Art 52—Coercion of a State by the Threat or Use of Force  A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of IL embodied in the UN Charter 6 b. RULES FOR TREATY INTERPRETATION  VC on Treaties Art 31 – General Rule of Interpretation look to terms and if ambiguous, look to parties‘ intent look to other agreements of that time factor in relevant int‘l rules  VC on Treaties Art 32—Supplementary Means of Interpretation If Article 31 leaves treaty ambiguous or obscure, may look to ―preparatory work of the treaty and circumstances of its conclusion‖ As applied to Cyprus: goal was Cyprus’ independence, and acpanying agreements were Treaty of Alliance amp。 Basic Structure agreement. Here parties left it intentionally ambiguous b/c they couldn’t agree!!! c. DENOUNCING / TERMINATING A TREATY  VC Art 56—Denunciation of or Withdrawal from a Treaty Containing No Provision Regarding Termination, Denunciation or Withdrawal No denunciation/withdrawal allowed UNLESS: o Parties intend to admit this possibility [not here] o Right is implied by nature of treaty [again, no] No less than 12 mo notice  VC Art 60—Termination or Suspension of the Operation of a Treaty as a Consequence of Its Breach Bilateral treaty  Cyprus could terminate Multilateral treaty o Affected party may invoke it to suspend treaty vizaviz itself and the breacher Def‘n of ―material breach‖ o A repudiation of the treaty o The violation of a provision essential to the acplishment of the object  States enter into private, contractual treaties that look like private K, not really ―law.‖ But Vienna Convention (accepted as CIL) and UN charter, act like K law, as ―background.‖ One way to achieve law parable to that in the domestic legal system. d. CYPRUS AFTERMATH:  1963: gov‘t stalemate (p35)  Nov 11, 2020—Kofi Annan presents plan for mon state governed by Council w/6 members (4 Greek, 2 Turkish)  Turkish Cypriots insist on int‘l recognition of their selfproclaimed state  April 2020—Greek C‘s signed accession agreement w/EU。 Turkish C‘s lifted longtime travel ban… might be negotiations in future.  C. CUSTOM = practice + opinio juris (conducted out of a sense of obligation) 1. Opinio juris a. Don‘t rely on practice alone b/c you don‘t want states to reserve right to deviate b. Practice alone is good for: courtesy, temporary or bad practices c. Persistent Objector Rule: IL permits states to opt out of an emerging CIL rule by objecting to the rule as it develops 7 2. CIL is a part of . law – Paquete Habana (fishing vessels as prize of war) a. … so long as there‘s no treaty on point [as was the case here] and no controlling legislative act or executive decision 3. ―Ripening‖ = when usage bees CIL a. How to change custom: IL as a process of ―claim and reaction‖ (multilateral treaties) b. Example 1 = States kept expanding offshore territory  resolved in Law of Sea Convention c. EXAMPLE 2: Foreign Direct Investment (FDI) / Expropriation i. PreWWII: ―Hull Doctrine‖ o Developed countries: ―full pensation‖ = full market value (determined by going concern + future profits + good will) o Developing countries: ―appropriate pensation‖ = book value, using unjust enrichment as the guiding principle ii. In 70s and 80s, decolonization was underway… series of . resolutions intended to establish a ―New Int‘l Economic Order‖: o . Res 1803 (1962) – Permanent Sovereignty over Natural Resources (owner shall be paid appropriate pensation) o . Res 3171 (1973) – ― ― (more sympathetic to developing countries) o . Res 3281 (1974) – Charter of the Economic Rights amp。 Duties of States (disputed amounts resolved by domestic law of nationalizing state) iii. Today: ―prompt, adequate, effective‖ payment o Prompt = now, not in 20 years o Adequate = developed countries say full pensation, not book value o Effective = usable currency (not ringitts) o No lumpsum payments (host state usually can‘t pay it) o Bilateral Investment Treati。