PIL - Exam Questions - Theory
Public International Law
33 flashcards · Law · by daniel-eder
What (if any) are the legal effects of recognition of a state by other states?
Current doctrine: “declaratory theory” Recognition is not considered to be a constitutive element of statehood – it is just a declarative piece of evidence. The recognizing state believes that all objective elements of statehood are present in an entity. Neither recognition nor non-recognition create a state or prevent a state from being a state.
For a judicial settlement of disputes States generally have two options, arbitration or the ICJ. Compare the two options and explain their advantages and disadvantages!
Arbitration requires an (ad hoc or pre existing) agreement decided by an arbitration tribunal ICJ jurisdiction needs to be established agreement, unilateral optional clause or forum prorogatum decision by 15 judges The key advantage of arbitration over the ICJ adjudication is the greater influence of the parties. The parties can select the legal order both procedurally and substantively. Also, the parties can choose the arbitrators themselves and therefore ones who are familiar not only with th…
Differentiate between terra nullius, res communis omnium and common heritage of mankind.
Terra nullius Latin expression meaning = “nobody’s land”; used on PIL to describe territory over which there is no sovereign; may be appropriated by a state Res communis omnium Latin for “common property” (=belongs to no-one, may be used by all); territory over which no state has sovereignty and which cannot be appropriated by any state; The regime permits freedom of access, exploration and exploitation (examples: High seas, outer space, …) Common heritage of mankind = like res communis, incapa…
How can you verify, if a person is actually representing a state when concluding an international treaty?
Full powers = Written evidence, that the person named in them is authorized to represent the state in performing certain acts in relation to a treaty; therefore, fundamental safeguard that one is dealing with a person with the necessary authority. A person is considered as representing a state for the purpose of performing acts relating to the conclusion of a treaty if he or she produce full powers -> Definition in Art 2 para 1 lit c VCLT I; According to Art 7 para 2 VCLT heads of states, forei…
Name at least four circumstances precluding wrongfulness in the context of state responsibility, and explain on of them in greater detail.
Consent of the injured party (“volenti non fit iniura”); self-defence (Art 51 UN-Charter); countermeasures (reprisals); force majeure (“vis major”); distress; necessity -> see also in Art 20-25 DARS
Explain in your own words the essence and limitations of the Act-of-State doctrine.
AoSd states that every sovereign state is bound to respect the independence of every other sovereign state. Therefore, its judicial and administrative authorities will not sit in judgement on acts of foreign states (not even discuss those as preliminary questions) effected with regard to persons, things or rights within their own territory and authority. AoSd has its limits: Should a foreign act of state run contrary to local standards of human rights and thus violate the ordre public, states c…
What is the position of a land-locked state under the law of the Sea?
Art 17 gives the right of innocent passage in territorial waters Art 58 gives, in the exclusive economic zone, the freedom of navigation and overflight the right to lay cables and pipelines Art 69 UNCLOS gives a right to participate in exploitation of exclusive economic zones Art 82 UNCLOS mandats that coastal states pay contributions for their exploitation of non-living resources on the continental shelf, and has the International Seabed Authority distribute it, especially to landlocked and di…
How does customary international law evolve? Is it possible to deviate from it?
It derives from (state) practice accompanied by a belief that this practice is obligatory Art 38 ICJ-Statute “evidence of a general practice accepted as law”; That means CIL evolves if (settled) practice changes, and the acting states belief that this behaviour is obligatory. Deviation persistent objectors are not bound (except by ius cogens) newer CIL can derogate older CIL and thus deviate due to CIL and treaty law being on the same hierarchical level, treaty law can also lead to a deviation…
When and under which circumstances may civilians be a target in armed conflicts?
Civilians are not legitimate targets unless and for such time as they directly participate in hostilities What does DPH mean? "all acts which, by their nature or purpose are intended to cause actual harm to enemy personnel and material" as soon as civilians refrain from DPH, they regain their status as protected civilians revolving door phenomenon (back and forth between DPH and civilian status possible) however, beyond sporadic, spontaneous or unorganised direct participation -> civilians beco…
What is the difference between “self-executing” and “non self-executing” treaties respectively treaty provisions? Answer this question by analysing the following “article”: “1. No one within the jurisdiction of a State Party to the present protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”
If a treaty/provision is self-executing or not, is a question of potential applicability; Self-exe.: It is formulated in a way that makes it capable of being applied directly as it is sufficiently precise; Non-self-exe.: It is not formulated in a way that makes it capable of being applied directly given that the treaty provisions are not precise and detailed enough; a national act of implementation is required for their effectiveness (Arts 50, 65 B-VG) -> Para 1 (above) is clear and precise, th…
Can self-executing treaties or treaty provisions be applied in Austria directly after ratification?
Questions of actual applicability can be only answered in the context of a national legal system In Austria an act of transformation (general or special) is necessary irrespective of whether the treaty is self-executing or not; Concrete mode of transformation at the discretion of National Council (Art 50 B-VG) or Federal President (Art 65 B-VG)
What is the Helms Burton Act?
It expressly prohibits the application of the act of state doctrine to Cuban expropriation acts Takes Sabbatino Amendment one step further (act-of-state doctrine may be disregarded upon request of the president)
What are measures of collective security and under which circumstances may they be imposed?
Collective security (39, 41, 42 UN-Charter) and self-defence (51 UN-Charter) are the only two exceptions to the prohibition of the use of force. describe content of 39ff UN Charter here as it contains the required circumstances (Term “aggression” see also in GA-Resolution 3314 Art 1)
What is the difference between immunity of states and the act-of-state doctrine?
Immunity of state: state as a potential party before national courts enjoys immunity for its governmental activities (Hoffmann vs. Dralle); -> this is about protecting states from legal proceedings in courts of foreign countries Act-of-state doctrine: applicable if actions of a state need to be analysed as a preliminary question in a dispute between other entities (Tschech. Holz-Case, Poldihütten-Case, Tuchfabrik-Case); the courts of one country will not sit in judgement of the acts of another…
How can jurisdiction of the ICC be established?
The jurisdiction of the ICC is established once a suspect is either a national of a contracting party of the Rome Statute or allegedly committed a core crime on the territory of a state party. However, the jurisdiction of the ICC is always complementary to national jurisdiction, i.e. only when national courts are not fit, willing or able to try the suspect. Finally, a situation may be referred to the ICC by the Security Council as an enforcement measure. According to Art 41 UN Charter irrespect…
How can jurisdiction of the ICJ be established?
Jurisdiction of the Court must be established independently from having joined its statute; the jurisdiction of the ICJ is not compulsory but merely optional. Only states can be parties in contentious proceedings before the Court, and only if the jurisdiction of the Court has been established for both parties. Three Options are available for establishing the jurisdiction of the Court: (1) special Agreement among the parties (either in a separate instrument or by a treaty clause) (2) unilateral…
What if, Art 27 UNCLOS does not apply?
If none of the four cases of Art 27 UNCLOS apply the coastal state cannot exercise their criminal jurisdiction on foreign vessels passing through their territorial sea. This could potentially lead to a lack of accountability for crimes committed on these vessels.
Explain the interface (“Schnittstelle”) between public international law and national law according to Austrian constitutional law!
Art 9 B-VG: General transformation in relation to customary international law and general principles of law. Art 50 and 65 B-VG: Art 50: treaties affecting laws/statues, political treaties: discretion of the National Council whether general transformation/special transformation/mixed forms. Art 65: all other treaties: discretion of the Federal President whether general or special transformation. Rank: analogy to national law dependent on content (does not fit well for Austria; Art 50 treaties:…
Are there any sources of PIL which are not explicitly mentioned in Art 38 ICJ-Statue? If yes, legally binding? If no, could there be any?
Sources of PIL not explicitly mentioned in Art 38 ICJ Statute: Enumeration of sources of PIL in Art 38 ICJ-Statue is non-exhaustive There are at least two more sources, which are not explicitly mentioned in Art 38: Decisions by international organisations Unilateral acts: e.g. recognition or protest Are they legally binding? Some decisions by IOs legally binding (e.g. Res, by the SC, cf. Art 25 UN-Charter), other decisions not legally binding (e.g. Res, by GA, soft law). Only legally binding de…
Name the available options to establish the jurisdiction of the ICJ!
UN-membership/ the capacity to stand before the ICJ does not establish jurisdiction of the court to decide on the merits of the specific case. ICJ-jurisdiction in relation to the parties: must be answered based on Art 36 ICJ-Statue: Ad hoc jurisdiction (art 36 para 1): both parties have agreed to institute legal proceedings OR forum prorogatum Optional clause (art 36 para 2): parties accept in advance the compulsory jurisdiction of the court International agreements (art 36 para 1): special dis…
Explain the term “government” as one of the constitutive elements of statehood!
has all three branches and their institutions: legislative / parliament executive / government jurisdiction / court system and the institutions are able to act and fulfill the government tasks internal exclusivity + external independence internal exclusivity means that no one challenges the state in the exercise of these functions. external independence means that the state is not answerable to any authority about the exercise of these functions, unless the state voluntarily submits to such an…
What are reservations to international treaties, what do they mean and when are they permissible?
A reservation is defined by Art 2 para 1 lit d VCLT as “a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state”. In effect, a reservation allows the state to be a party to the treaty, while excluding the legal effect of particular provisions of the treaty. Permissible: Art 19 a,b,c V…
Difference between so-called “Hague Law” and “Geneva Law”?
International Humanitarian Law can be divided into two strands: Hague law and Geneva law. b) Hague Law is mainly concerned with restrictions in relation to the methods and means of warfare. - Hague Law mainly consists of the Hague Conventions of 1899 and 1907 and the annexes to Hague Convention IV which are called The Hague Regulations. - The Martens Clause in the preamble of the 1899 Hague Convention is considered customary international law. c) Geneva Law is mainly concerned with the protecti…
Discuss all available diplomatic means of settling disputes between states!
a) Negotiations b) Enquiry or fact finding c) Good offices d) Mediation e) Conciliation
Diplomatic means of settling disputes between states: Negotiations
Is the most basic diplomatic process of dispute settlement. Negotiations are conducted directly between the parties at an equal level and usually confidentially. Negotiations may be conducted as a primary means for dispute settlement, or may be conducted to prepare the ground for judicial proceedings.
Diplomatic means of settling disputes between states: Enquiry or fact finding
Investigation of facts relevant to a dispute by a neutral third party. Can serve as a basis for dispute settlement using any of the other means available.
Diplomatic means of settling disputes between states: Good offices
Are a set of measures provided by a third party to act as a catalyst for negotiations. By providing a neutral venue and conference servides or by shuttling back and forth between the parties, communicating proposals and counter-proposals. They do not include substantive suggestions or proposals to the parties.
Diplomatic means of settling disputes between states: Mediation
Takes good offices one step further Includes guidance of the parties by the mediator through the negotiation process Guidance is not restricted to procedural issues. It may already include substantive suggestions or proposals by the mediator.
Diplomatic means of settling disputes between states: Conciliation
Is a more formal process based on an agreement between the parties. This agreement determines the powers of the conciliator(s) It usually includes the power to present and propose a compromise to the parties. Such a compromise arising from the conciliation is not binding.
Definition of DPH?
IHL does not have an exact definition. One definition is: "all acts which, by their nature or purpose are intended to cause actual harm to enemy personnel and material"
Explain the concept of customary international law to a first year student!
CIL consists of state practice and opinio iuris State practice means states behaving in a certain way or NOT behaving in a certain way They do this for the reason called "opinio iuris" which means they believe they have to behave that way An important aspect of CIL are persistent objectors This means that if CIL is forming - because states behave in a certain way and think they have to behave that way - but a state protests against this rule, and keeps protesting he is a persistent objector. Th…
Provide an example from case-law of your choice for Customary international law!
The Wimbledon Case discussed the relationship of CIL and treaty law and found that treaty law is generally lex specialis to CIL, but that they are on the same hierarchical level
What are provisional measures as mentioned in Art 40 UN-C?
their goal is to de-escalate a situation They normally included a call for a ease-fire and the withdrawal of troops.