PIL - Theorie
117 flashcards · Law · by Chala Lala
What is PIL?
PIL is defined as the set of rules which governs the relationship between subjects of international law and constitutes international law subjects of PIL = legal entity that bear rights and duties based upon PIL (states, IGO)
What is NOT PIL?
conflict of laws (when legal issue contains foreign element) other substantive law (addressed to private subjects of law) comity (principles of politeness, convenience or goodwill)
Primary / secondary PIL
Primary PIL: law created by subjects of international law (treaties, customary PIL) or law that applies as general principles of PIL Secondary PIL: "internal" law that is created by institutions of international organizations based on their statute and in line with the procedures established therein
Universal / particular PIL
Universal PIL: rules which bind all states and subjects of PIL Particular PIL: law that is applicable to only a group of subjects which recognise special rules that apply only to them (eg linked geographically --> regional PIL)
History of PIL - Roman law
natural law = rules were rational and logical, rooted in human intelligence and determindes through a process of "right reason" (ius gentium = held in common by all) ius gentium replaced stricter ius civile (only applied to roman citizens) and became the common law of the Roman Empire can still be found in general principles of law
History of PIL - Treaty of Westphalia
triggered the rise of the nation state and idea of sovereignty Hugo Grotius: combined natural law principles and positive law Jean Bodin: emphasized the necessity of a sovereign power within the state that would create laws Theory of absolute sovereignty = denies any foundation of PIL in natural law Hegel classified PIL as external constitutional law of states - basis of PIL = will to enter into relations with other states Jellinek introduced theory of self-limitation - states should only be ob…
History of PIL - 19th century
hightide of legal positivism --> codification first attemt to draft a constitution was the Covenant of the Leage of Nations to maintain world peace UN-Charter 1945: can be regarded as a constitution in a substantive meaning (see Art 103 UN-Charter) use of force is only allowed for collective or individual self-defence or when it is authorized by the UN Security Council UN system faced major difficulties during the Cold War
Horizontal / vertical structure
PIL is based on horizontal structure of equal subjects (each nation is sovereign) vertical structure: IGO founded by states, interface between international and national law
State as intermediate
an individual is not a subject of public international law - the state is the intermediate --> in principle, rules of PIL are not directly applicable to individuals Exceptions: legal person = corporations vs states (through internationalizing of contracts by introduction of a "PIL clause" the states limit their own sovereignty regarding their counterparty, PIL applies, corporation becomes an entity bearing its own rights based upon PIL for the particular case) international human rights treatie…
PIL an national law: applicability
potential applicability = derived from objective and content of a provision of PIL (self- or non-self-executing) self-executing: directly applied (if national act of implementation is required, norms are non-self-executing) invoked directly before national courts and transformed generally actual applicability = implementation into a national legal system adoption: PIL is applied in form and substance as if it was a national rule transformation: implementation of PIL into national law by means o…
PIL an national law: rank
general rule: drawing an analogy to national law dependent on the content. The content of the law determines its rank. Anomaly in Austria: constitutional law depends on formal criteria!
PIL an national law: primacy
conflict between rules of PIL and national law of the same rank dualism: complete division between PIL and national law - seperate legal systems which just co-exist, question of primacy is irrelevant. Different legal basis, addressees and subject-matter monism: PIL and nat law are part of the same legal system radical monism: PIL prevails, nat law is null and void in case of conflict (Kelson) OR nat law prevails (Hegel) moderate monism: PIL prevails, nat law needs to be brought into conformance…
Sources of PIL
no constitution lack of a single generally accepted legislative institution being able to create laws no system of courts with comprehensive and compulsory jurisdiction to interpret and extrend the law sources of PIL (only enumeration, no hierarchy!): primary: treaties customary PIL (practice + opinio iuris) secondary: judicial decisions most highly qulified publicitas other sources --> since no hierarchy, later customary PIL can override treaties
Treaties: definition
Art 2/1 lit a VCLT I: written agreements using one or more instruments between subjects of PIL with the intention of creating binding obligations governed by PIL containing codified customary PIL or new regulations form of treaties is irrelevant bilateral vs multilateral obligatory nature: pacta sunt servanda (Art 26 VCLT I) + Bona Fides
Treaties: formation (requirements)
formation requires: appropriate representation (full powers) negotiation signature/ratification entry into force
full powers
to ensure that a person representing a state has the power to act on behalf of that state a person must produce "full powers" = written evidence that the person named in them is authorised to represent the state in performing certain acts in relation to the treaty (Art 7 VCLT I) full powers by virtue of their position (= legal presumption of being authorized): heads of states and governments in general foreign ministers for all acts relating to conclusion of treaties heads o fdiplomatic mission…
Treaties: formation
steps before treaties become legally binding obligations: Adoption bilateral: wording has to be unanimously accepted multilateral: approved by two-thirds, "final act" may provide summary of negotiations Indication of will to be bound (reason: constitution of many states requires mandatory legislative or parliamentary approval of a signed treaty) bilateral: simple exchange of instruments OR signature alone (Art 12 VCLT I) OR signature + ratification (Art 14 VCLT I) Even if a treaty has not enter…
Treaties: operation
treaties will not operate retroactively (ratione temporis) and are only binding for the parties (ratione personae = operating only inter partes) --> except customary PIL! even when a treaty rule covers the same rule as customary PIL, the latter will not be absorbed within the former treaty law constitutes lex specialis to customary PIL
Reservations to a treaty
Art 2/1 lit d VCLT I unilateral statement made by a state when signing, ratifying, accepting, approving or acceding excludes or modifies the legal effect of certain provisions of the treaty in their application to that state if expressly allowed: no acceptance by other parties is required, otherwise consent of at least one other party is sufficient; only if purpose and object of the treaty so requires, all parties have to accept the reservation reservations are legally binding (no binding effec…
Treaties: interpretation
interpretations cannot revise a treaty primary means of interpretation Art 31 VCLT I: food faith, bona fide = pacta sunt servanda ordinary meaning of the language (unless manifestly absurd or unreasonable) systematic interpretation = context of a norm teleological interpretation is based on the objective the treaty aims to achieve subsequent practice (= actual actions taken under the treaty) may also play a role secondary/supplementary means of interpretation Art 32 VCLT I: travaux preparatoire…
Treaties: invalidity
Art 46 - 53 VCLT I, effects are ex tunc violation of a rule of national law regarding competences to conclude treaties (only if national rule of fundamental importance or manifest violation = objectively evident) infringement of ius cogens coercion, use or threat of force, fraud, bribery error: relates to a fact or a situation formed an essential basis of its consent to be bound state did no tknow or ought to have known of or contributed to the error errors in law are irrelevant
Treaties: termination and suspension
Art 54 to 64 VCLT I, effects are ex nunc termination = permanent end of a treaty, suspension = only temporary non-operation; by consent of all parties or if a treaty provides for it, both options are possible at any time otherwise possible if: material breach of a treaty impossibility of performance unless state is responsible fundamental change of circumstances unless state is responsible unilateral termination/suspension leads to the persistence of the treaty between the other parties
Customary PIL
treaties do not have an overall impact, unless a provision is regarded as customary PIL Customary PIL = state practice + opinio iuris + NOT persistent objector (unless ius cogens) state practice = actions, omissions or acquienscence (objective element) eg legislation, diplomatic notes, official statements or manuals with regard to its duration and repetition (constant and uniform usage practiced by states), generality and consistency; also "settled practice" also lack of action/omission by stat…
Persistent objector
a state might not be bound by customary law if it acts as a persistent objector, i.e. it continuously objects to a certain norm. This cannot prevent the formation of a norm of customary law, the relevant norm does not bind that particular state, though however, no state can be a persistent objector against a rule of ius cogens Customary PIL may also evolve regionally or locally and therefore only bind a specific group of states, such as those in Europe
General principles of law
general principles of PIL = common principles of substantive, procedural or structural nature recognized by domestic legal systems, determined by a comparison of these legal systems and are valid although not explicitly written down in PIL subsidary sources may be applied to close unintended gaps in PIL (lacunae = matter should have been regulated but was not, can also be solved by analogy drawn from other rules)
Judicial decisions and writings of publicists
Art 38 ICJ: are subsidiary means for the determination of rules of law ICJ judgements are only binding inter partes and there's no doctrine of precedence in PIL, decisions may have relevance in other cases as well though (eg acceptance of a rule as customary PIL) because they disclose the content of norms by applying, substantiating or improving them
ius cogens
= compelling/peremptory law (Art 53 VCLT I) derogation is not permitted ius cogens can only be modified by a subsequent norm having the same character any treaty that conflicts with ius cogens is void no enumerative list (eg prohibition of the use of force, aggression, genocide, slvaery, torture, crimes against humanity) ius cogens give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all states have a legal interest ius cogens enjoy a higher…
Other sources of PIL
secondary law created by IGO UN SC has competence to adopt resolutions which bind all member states (Art 25 UN-C) resolutions by US GA are not legally binding (recommendations), but voting behaviour or statements of states in UN GA is considered state practice International Law Commission is involved in development of PIL (preparation of drafts of int. treaties) unilateral acts of states with intention to be bound declarations when declared by a competent state organ (cannot be withdrawn arbitr…
Subjects of PIL
entities acting with imperium, bearing rights and duties based upon PIL that can be held responsible and liable under PIL subjects by their nature: original ("born") subjects because of their very existence (states, insurgents, Holy See) derivative ("created") subjects other subjects created them (IGO, Red Cross, Bundesländer) subjects with regard to the extent of their rights: universal subjects (enjoy all rights and duties in relationship to all other subjects) limited (partial) subjects (enj…
Subjects of PIL: international organisations
wide sense: any cross-border cooperation/organisation under a structured framework narrow sense: inter-governmental organisations composed of states non-governmental organisations composed of other entities (eg deliver shadow reports monitoring compliance with PIL by states)
What is an IGO?
= derivative subject of PIL a cross-border organisation under a structured framework / statute composed of states founded by a treaty to pursue certain common objectives which are pursued by organs created for that purpose by using the powers and competences conferred upon them by the member states through the founding treaty --> legal personality is derived from its founders
IGOs: limits to legal capacity / personality?
implied power narrow sense: powers needed to express powers wider sense: powers derived from the purpose and objectives of an IGO legal personality is limited ratione materiae to the subject-matter covered by the founding treaty (with regard to the content of its acts) - principal of conferral, limited transfer of competences Is legal personality also limited ratione personae? limitation regarding potential partners to interact with objective personality depends on the quanitity of members or t…
3 key elements of statehood?
population government territory
Statehood: recognition
not a constitutive element of statehood, merely declarative piece of evidence that some other subjects believe that the objective elements of statehood are present implicit recognition (eg concluding treaties with the state) if recognition was constitutive a state would no longer be an original subject but a created one important political signal, but cannot form a state state building is a sociological process: it is for people to determine the state; therefore a state is to be judged by objec…
Statehood: Entities of Federal States
= sub-entities of states, enjoy a certain degree of self-administration, while other matters remain within the domain of the central state (= federalism) which legal capacity these sub-entities have is determinded by the constitution --> derivative subjects of PIL usually limited ratione materiae (limited transfer of competences) + ratione personae (with regard to potential counterparties)
Statehood: Insurgents
= a group of people trying to establish some sort of control over a territory during a rebellion (insurrection), attempting to break away from the rule of a state objective elements of statehood are only temporarily met: either successful (forms new state) or unsuccessful (disappears) recognition is controversial objective standard for insurgents (how temporary is not enough?) is difficult to find once a stable de-facto-regime has been established, it replaces previous government and cannot be…
formation and extinction of states
a new state may from separation / emancipation (splitting with consent) secession (splitting without consent = successful insurrection) association / union / fusion (merging to create a new state) a state may disappear integration into existing state dismemberment (falling apart creating several new states without any successor) failed state / dissolution
Statehood: Succession
= replacement of a state (the predecessor) by another state (the successor) with regard to the legal position (rights and duties) of the former state under PIL Source: Vienna Convention on teh Succession regarding treaties universal succession (standard model): all rights and obligations pass on partial succession: successor picks and chooses treaties establishing territory or boundaries are not affected membership in international organisations is NOT covered by rules of state succession unive…
Statehood: Right to secession
if there was a right to secession, a secession would be goverend by PIL and not simply be an internal affair doctrine of uti possidetis (as you possess): territory and other property remain with its possessor at the end of a conflict, unless otherwise provided by a treaty (newly independent states may only emerge within pre-existing territorial borders) --> problem: self-determination vs territorial integrity of states (both protected by PIL: UN-C, Resolutions 2625 and 1514 by US GA) --> compro…
Statehood: Immunity
pars in parem non habet imperium = principle of sovereign equality of states (equal subjects do not have power over each other) therefore: a state is not a party to proceeding before national cours ot other states, cannot be sued before the courts of other states, is not answerable to national institutions of another state, is excluded from jurisdiction of another state BUT: OGH Hoffmann vs Dralle, immunity is limited to acta iure imperii and does not cover acta iure gestionis --> private indiv…
Statehood: Immunity - Forum shopping
= choice of state of litigation with regard to acte iure gestionis/imperii because the differentiation is state dependent liberal socio-economic system: immunity for the most essential governmental functions only marxist-leninist/socialist system: near absolute immunity uniform standards are necessary, a convention on state immunity has not yet entered into force though
Statehood: Immunity of state organs
full immunity: heads of state, heads of government, foreign ministers immunity derives from immunity of state regarding acte iure imperii during their term in office; can be held liable afterwards, but not for acts committed while in office --> home state can nonetheless institute legal proceedings against a state organ, home state is free to waiver immunity, international tribunals can initiate legal proceedings
Statehood: Immunity vs AOSD
= Act of state doctrine = actions of a state need to be analyzed as a preliminary question in a dispute between other entities; the state in question is not itself party to the dispute = no state can exercise jurisdiction over the lawfulness of sovereign acts of another state affecting persons, things or rights within that states territory --> a complaint regarding a possible breach of PIL has to be brought before the ICJ, an arbitration tribunal or the UN SC (only by another subject of PIL) BU…
Statehood: Range
range of governemntal authority of a state: territorial jurisdiction personal jurisdiction (nationality and diplomatic) universal jurisdiction of states over war crimes, genocide or privacy
Statehood: Organs and effectivity
several criteria for legitimation: monarchic legitimation democratic legitimation socialist legitimation (most be loyal marxist-leninists) Brezhnev doctrine: right to intervene in a fraternal state to remove any non-socialist government BUT: effectivity rather than formal legitimation is currently predominant in PIL: any organ which effectively exercises governmental functions of a state is an organ of that state even if it seized power unconstitutionally
Statehood: Population
= in principle all natural and legal persons linked to that state by a bond of loyalty or allegiance resulting in the nationality or citizenship of that state. Bond of loyalty = genuine link = legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties It is up to the discretion of a state to decide how to acquire its nationality Nationality = dimension of PIL + consequences…
Statehood: Natural persons
Nationality is a matter of national law (genuine link is only important in case of multiple citizenships), must be permanent (no nomads), minimum number is not required Options to acquire nationality: birth (place of birth or nationality of the parents) marriage naturalisation (by application) entry into public service right to opt Options for the loss of nationality: renunciation voluntarily acquisition of a foreign nationality activities incompatible with the bond of loyalty (eg service in a…
Statehood: Natural persons - Aliens, foreigners
Aliens or foreigners = nationals of a state present in the territory of another state. They are subject to the territorial jurisdiction of the state in which they are present personal jurisdiction and (diplomatic) protection of their home state. consequence of personal jurisdiction while abroad = the right to consular assistance, is vested in the individual, does not require a violation of international law
Statehood: Legal persons
= derivative legal subjects created under a particular legal order. (similar to IGO on a local legal order), link to a state and hence the nationality of a legal person: foundation / incorporation; recorded by entry into an official register seat / residence place of business - centre of interests control over a company = the right to hire and fire the management No real preference, no absolute test in PIL
Statehood: Quasi-persons
= neither territory nor person but still subject to some kind of international responsibility of a state. nationality of ships: PIL requires a genuine link which is ownership according to Art 91, 92 UNCLOS nationality of aircraft: PIL does not call for a genuine link but only defines consequences of nationality. The state of registration has jurisdiction (Art 12, 17, 19 CC) - nationality of spacecrafts: depends on the launching state, in case of several launching states an agreement must be rea…
Statehood: Territory
= an area under the sovereign territorial jurisdiction of a state. Territorial sovereignty: ownership and possession of a given territory entitles the state to exercise its authority an jurisdiction on that territory effective exercise: territorial sovereignty has to be exercised effectively (= continuous and peaceful display of state authority over a longer period of time) imperium = sovereignty over territory or persons to act with imperium on the territory of other states is prohibited Condo…
Statehood: Acquisition of territory
cession = title for acquisition, based on treaty terra nullius can be acquired lawfully also lawful acquisition if the affected state agrees voluntarily acquisitive prescription: not terra nullius, requires evidence of sovereign acts by a new sovereign over a prolonged period of time without protest or other contest by the original sovereign this also holds true if new government came into power by unconstitutional means! occupation = provisional control by a ruling power without a claim of for…
Statehood: Land
uti possidetis principle: territory and other property remain with its possessor at the end of a conflict, unless otherwise proved by a treaty
Statehood: internal waters
= waters within the land boundaries (rivers, canals, lakes) as well as waters inland of the baseline (= low water/straight base line) --> The state has full sovereignty over internal waters. --> UNCLOS does NOT apply --> no right of innocent passage, except when internationalized (eg canals, river systems by treaty) borders and rivers: not navigable: the boundary is the middle line navigable: the border follows the thalweg, which is the line of deepest depth borders and lakes: usually fixed by…
Statehood: archipelagic waters
def Art 46 UNCLOS The sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baselines; straight baselines are permissible (Art 47 UNCLOS). Archipelagic waters are considered maritime internal waters by some but rather comparable to the territorial sea, because there is a right of innocent passage for foreign ships (but archipelagic sea lanes are possible).
Statehood: territorial sea
= a belt of coastal waters extending to a max. of 12 nautical miles from the baseline of a coastal state usually following the low water line or straight baselines (cannon shot rule) In case of opposite states (facing each other) or adjacent states (next to each other): delimitation agreement regarding the territorial seas or median line (= a line equidistant from the nearest point of the baseline of each state; “equidistance principle”). Art 15 UNCLOS Art 24 UNCLOS / also Corfu Channel case -…
Statehood: Straits
Art 35/1 UNCLOS: A strait is a naturally formed, usually narrow, waterway which is navigable and connects two larger areas of water. Straits must be open for passage by ships and must not be closed by adjacent coastal states. (Special regime: transit passage) + Corfu Channel case (Dangers within a strait) Art 25/3 UNCLOS does not apply to straits!
Statehood: Airspace above territory
Air Space above a state’s territory is also covered by the respective state’s sovereignty / part of the territory but limited in height at most to the point where the airspace meets space itself. There is no customary international law equivalent to “innocent passage”. The Chicago Convention (CC) introduced some sort of analogy of that concept
Statehood: overseas territories
refers to territories which are under the sovereignty of a state (“parent state”) although not governed as part of its metropolitan territory. Most overseas territories nowadays have considerable self-government
Statehood: Terra nullius
is a territory over which there is no sovereign
Statehood: Res communis omnium
is a territory over which no state has sovereignty and which cannot be appropriated by any state. All states are free to access, explore and exploit such an area
Statehood: common heritage of mankind
is a territory over which no state has sovereignty and which cannot be appropriated by any state. Access, exploration are allowed, exploitation is regulated in such an area
Responsibility and liability - definitions
Responsibility = the phenomenon of a subject of PIL being answerable for breaches of international obligations Liability = result from a breach of obligations under PIL or from conduct of lawful but inherently dangerous acts. large parts of DARS can be considered customary PIL Limitation periods are a general principle of law, which will be applied in the absence of treaty and customary law. (periods are long enough if claimant neglected his rights so long that this period justifies a belief in…
Responsibility: Prerequisites / elements
Art 2 DARS: Conduct (action or omission) which constitutes a breach of an international obligation (Art 13 DARS, maybe even lack of due diligence, national law is irrelevant) which is attributable to a state
Responsibility: Attribution
if a state fails to comply with an obligation to prevent an internationally wrongful act (omission) Conduct of any(!) organ of the state is attributable to the state. Legitimation is irrelevante → principle of effectivity. Acting ultra vires (in excess of or beyond its authority) does not preclude attribution (Art 4 DARS) “Outsourced” governmental functions are attributable to the state (Art 5 DARS) Any actions of entities which a state effectively directs and/or controls may be attributable to…
Responsibility: Aid, assistance, coercion
Arts 16-18 DARS responsibility under PIL results from aid, assistance, control or coercion of a state in the commission of an internationally wrongful act if the state aiding, assisting, controlling or coercing the actor is aware of the circumstances and if it had also been responsible when acting itself
Responsibility: Serious breaches
Art 40 DARS in case of breach of ius cogens / peremptory norms of PIL justification does not apply (Art 26 DARS) aid or assistance are prohibited and states are under a duty to use all legitimate means to terminate such serious breaches and not to accept or recognise situations arising from such a breach
Responsibility: Justification
Consent (Art 20 DARS) Self-defence (Art 21 DARS iVm Art 51 UNC) Reprisals / Countermeasures = unlawful conduct of a state against another state in response to a previous unlawful conduct of the latter (Art 22 DARS) only if proportionate, against the infringer and respecting ius cogens Vis maior = irresistible force beyond the control of a state making it impossible for a state to act properly (Art 23 DARS) Distress = human life is at stake and cannot be saved without breaching obligations. (Art…
Responsibility: Consequences
cessation and non-repetition (Art 30 DARS): conduct must be stopped and guarantees of non-repetition maybe due if damage has arisen, reparations (Art 31 and 34 DARS): restitution (reversal of legal situation to the proper condition) compensation (for material damage which cannot be resituated) satisfaction (immaterial damage)
Responsibility: Environment
a state violates PIL if it uses or permits the use of its own territory in such a way that significant environmental injury is caused to another state or the properties or persons therein (restricted territorial sovereignty) principle of prevention: state have to use all means at their disposal in order to avoid acts within their territory / jurisdiction that cause significant damage to the environment of another state (also according to due diligence requirements) PIL requires states to assess…
Pacific settlement: Disputes
= any disagreement between states over a point of law or fact, a conflict of legal views or interests between two parties Art 2/3 UN Charter GA Resolution 2625 "friendly relations declaration"
Pacific settlement: Diplomatic means of dispute settlement
Negotiating - most basic diplomatic process of settling disputes, conducted directly between the parties at an equal level and confidentially Enquiry or fact finding = the investigation of facts relevant to dispute by a third, neutral party Good offices = set of measures and services provided by a third party acting as a “catalyst” for negotiations. Good offices do not include any substantive proposals Mediation = Good offices + guidance of the parties by the mediator through the negotiating pr…
Pacific settlement: Judicial means of dispute settlement - Arbitration
its result, the arbitral award, will be binding upon the parties requires an agreement including 1. the basic compromise to submit the dispute to arbitration = ad hoc OR compromissory clause (compromissary) 2. composition of the arbitration tribunal 3. substantive and procedural law to be applied The usual structure for an arbitration tribunal is an equal number of arbitrators appointed by each party to the dispute and a chairperson agreed upon by the arbitrators --> adequate representation of…
Pacific settlement: Judicial means of dispute settlement - ICJ
= principal judicial organ of the UN, its statue is an integral part of the UN Charter → all UN members are contracting parties to the ICJ statute → other states can accede to the ICJ statute Only states can be parties in contentious proceedings before the Court (Art 34 ICJ-Statue) therefore acts of the UN cannot be brought before the ICJ issues arising with regard to IGO can only be dealt with in advisory opinions of the Court which are formally not binding No compulsory but merely optional ju…
Diplomatic and consular law: Diplomatic relations
establishment of diplomatic relations between states depends upon mutual consent, termination is unfriendly but not unlawful The functions of a diplomatic missions include (Art 3 VCDR): representation of the sending state in the receiving state protection of the interests of the sending state observation of and reporting on conditions and developments promotion of friendly relations Diplomatic staff consists of (Art 1 VCDR): diplomatic staff, administrative staff, technical staff, service staff…
Diplomatic and consular law: Diplomatic protection
Right to diplomatic protection consequence of nationality under PIL right of states to protect their nationals (as intermediate b/c individuals are not subjects of PIL) from violations of PIL by other states is vested in the state, not in the individual the individual cannot be forced to renounce or waive it (Calvo doctrine) is a matter of (political) discretion of the state whether or not to exercise it (no legal obligation) An individual or company cannot itself initiate proceedings before a…
Diplomatic and consular law: 3 requirements of diplomatic protection
Breach of international law nationality-of-claims rule = individual is a national of the protecting state, must exist from the point in time when the violation of PIL happened until the end of the legal proceedings. Exceptions: The flag state of a ship may also protect foreign crew members The ICRC must be accepted as a protecting power by parties to an international armed conflict Art 23 TFEU (mutual representation of EU Member States in third states) local remedies rule = exhaustion of all av…
Diplomatic and consular law: Consular relations
If a State takes actions against a foreigner (territory sovereignty/jurisdiction) this state has the obligation to inform the home state of said foreigner - if not: wrongful act; breach of obligation (LaGrand Case) consular assistance = consequence of personal jurisdiction while abroad the right to consular assistance is vested in the individual consular assistance does not require a violation of international law The establishment of consular relations requires consent between the states conce…
Diplomatic and consular law: Privileges and immunities
Diplomatic or consular status results in protection: the receiving state must take all appropriate measures to prevent attacks on the premises of a mission (incl its dignity), on diplomatic and consular personnel and their personal freedom. The term “all appropriate steps“ implies an obligation to make an end to a hostage situation, perpetrators must be prosecuted or extradited by the host state (Tehran case) immunity: diplomatic personnel: includes immunity from criminal jurisdiction, no oblig…
Law of the Sea: Maritime zones
contiguous zone exclusive economic zone continental shelf islands high seas international seabed
Law of the Sea: The contiguous zone
Art 33 UNCLOS = a limited jurisdiction zone outside a states territorial sea = band of water extending from the outer edge of the territorial sea within which a state does not have territorial sovereignty but can exercise and enforce certain control rights territorial sea and contiguous zone cannot exceed 24nm from the baseline – the actual width of the contiguous zone depends on the width of the territorial sea is not part of the territory of a coastal state 🡪 only certain rights only customs…
Law of the Sea: The exclusive economic zone
Art 55 - 75 UNCLOS = a zone outside its territory which a state has special rights over regarding the exploration and exploitation of living and non-living resources, the seabed as well as the energy production from water and wind except sedentary species The coastal state may also establish and use artificial islands, installations and structures and exercise jurisdiction over them, conduct maritime scientific research and issue regulations for the protection and preservation of the marine env…
Law of the Sea: The continental shelf
Art 76 - 85 UNCLOS = comprises the seabed that slopes away from the coast The delimitation of the continental shelf between states shall be fixed by agreement The coastal state has sovereign rights over the continental shelf for purposes of exploring it and exploiting its natural resources (Art 77 UNCLOS), may issue safety regulations concerning artificial islands it has established in the zone. Other than that same rights and duties as exclusive economic zone. The fact that the coastal state h…
Law of the Sea: Islands
Art 121/1 UNCLOS = a naturally formed area of land, surrounded by water, which is above water at high tide can have a territorial sea, a contiguous zone, an exclusive economic zone and a continental shelf Rocks, which cannot sustain human habitation or economic life of their own, only have a territorial sea. Artificial Island cannot even have a territorial sea.
Law of the Sea: The High Seas / Freedom of the seas
Art 86 - 115 UNCLOS = all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state The high seas are considered res communis omnium. Six freedoms of the sea are: navigation overflight laying of submarine cables/pipelines construction of artificial islands or other installations fishing scientific research Art 125 UNCLOS = freedom of transit to the coast by landlocked…
Law of the Sea: Jurisdiction on the high seas
the flag state of a ship has jurisdiction over the respective ship and the crew. Criminal jurisdiction may thus be exercised by the flag state. It may also be exercised by the home state of the crew. BUT: PIL does not per se prohibit the exercise of jurisdiction by states. All that can be required is that a state should not overstep judicial limits (arguable: “reasonable connection“) (Lotus Case) all states may excercise jurisdiction over pirate vessels: Art 100 - 107 UNCLOS, seizure only by wa…
Law of the Sea: Hot pursuit
Art 111 UNCLOS: customary international law It is the right to pursue and arrest ships escaping to international waters, as long as pursues are competent authorities of the state, have good reason to believe that the pursued ship has violated the state’s law or regulations, the pursuit begins while the pursuing ship is in that state’s territorial or internal waters and the pursuit is continuous. Must end as soon as the pursued vessel enters another states territorial waters.
Law of the Sea: Seabed beneath the High Sea
The seabed beneath the high sea and its resources are considered common heritage of mankind. The International Seabed Authority was established to control access to the high seas by private entities.
Air Law: Sovereignty over airspace
“The contracting states recognise that every state has complete and exclusive sovereignty over the airspace above its territory.” (Art 1 Chicago Convention) “complete” = the state claims regulatory power over every aspect of the use of airspace above its territory “exclusive” = the state alone can claim such regulatory power Art 2 Chicago Convention: States claim territorial sovereignty over the airspace above its traditional territory = airspace is regarded as part of the territory of a state…
Air Law: Scope of application
CC is only applicaple to civil aircrafts (Art 3 CC) State aircraft = aircraft used for the governmental purposes military, police a private helicopter flying state organes on an official mission = state use! State aircraft always need permission from other states to enter and use foreign airspace. The Austrian “Luftfahrgesetz” uses a different concept of civil aircraft which is not fully compatible with the Chicago Convention 🡪 § 11 Abs 2 LFG. Difference: police aircraft are civil aircraft und…
Air Law: Right to fly ("innocent passage")
There is no customary international law equivalent to “innocent passage”. The Chicago Convention introduced some sort of kind of analogy to that concept. Art 5 Chicago Convention Non-commercial, non-scheduled flight as a matter of principle is free (no permission needed), subject only to landing requirements or restrictions in the interests of safety. Non-traffic stops (= anything other than taking on or discharging payload (passengers, cargo, mail) = eg maintenance, refuelling are allowed Comm…
Air Law: Air navigation restrictions
Art 9 Chicago Convention allows for non-discriminatory restrictions for the purposes of safety or security Art 11 provides for a non-discriminatory application of all national regulation on aviation adopted by states under the principle of Art 1 Art 12 defines the consequence of the nationality of aircraft and requires states to make sure its aircraft comply with aviation rules at all times, which requires a regime of continuing supervision, enforcement and authorisation of aircraft bearing its…
Air Law: ICAO
= International Civil Aviation Organisation, releases standards and recommended practices (SARPs, not annexes, secondary PIL) Art 37 CC lists the issues to be addressed for standardization, provides that each contracting state undertakes to collaborate in securing the highest practicable degree of uniformity in regulations Art 38 CC allows for deviations from the SARPs should any state find it impracticable to comply. Deviations must be notified with the ICAO. → In order to attain mutual recogn…
Air Law: Jurisdiction in the air
Art 12 CC: basic jurisdiction of states of registration of an aircraft as far as administrative law and enforcement of compliance with aviation rules are concerned Tokyo Convention: crimes committed on board 🡪 cumulative legislature because: criminal jurisdiction is vested in the state of registry but does not preclude claims for criminal jurisdiction based on other grounds accepted in PIL such as venue of crime (territory in which crime was committed) but see UNCLOS for limits of territory! n…
Air Law: Use of force against civil aircraft (interception)
Art 3 CC right of states to resort to interception procedures established under the convention force must not be used against civil aircraft Nevertheless: right to self-defense iSd UNCharter Weighing of lives against lives infringes human rights/dignity according to dt.BundesverfassungsGericht.
Space Law: Sources
🡪 providing a regulatory framework for human activities in outer space Outer Space Treaty (OST) Rescue Agreement Liability Convention Registration Convention Moon Agreement
Space Law: Air vs Space
no general accepted definition for a boundary bottom up approach: maximum altitude at which aerodynamic flight in airspace is possible (ca 80km) top down approach: minimum altitude at which ballistic orbital unpowered flight in space is possible (ca 160km)
Space Law: Freedom of research and exploration, peaceful use
outer space is res communis omnium (Art I OST) no appropriation by states states must not enforce claims by private individuals in court open for peaceful exploration and use in accordance with PIL Art IV OST: celestial bodies shall be used only for peaceful purposes --> Art 88 UNCLOS allows military exercises in the sea! Earth orbit: merely nuclear weapons or other weapons of mass destruction are prohibited
Space Law: Launching state
Art I Liability and Registration Convention: the launching state of a space object is the state which launches a space object, or which procures the launch of a space object, or from whose territory or facility a space object was launched
Space Law: Registration
Art II Registration Convention: registration of space objects by its launching state two or more launchin states shall agree on who should register entry into a national register which the launchin state shall maintain and entry into a central register of spacecraft kept by the UN Secretary General spacecraft has nationality of the registration state, registration state has jurisdiction over craft and crew