PIL - Exam Training - Theory - 2021
Public International Law
34 flashcards · Law · by daniel-eder
Immunity from criminal jurisdiction of a State is enjoyed by diplomatic and consular personnel alike. Is this statement true? Explain why/why not.
Diplomatic personnel has full immunity from criminal and civil jurisdiction consular personnel is only immune to civil jurisdiction, not to criminal statement is false
Immunity from criminal jurisdiction of a State continues beyond the term of office of members of government. Is this statement true? Explain why/why not.
This is discussed in the Arrest Warrant case ("Yerodia") The immunity of states includes the Immunity for members of government but only while in office after the end of the term they can be prosecuted statement false
Diplomatic Immunity is enjoyed by any representative of a State (members of government, diplomatic and consular personnel) alike. Is this statement true? Explain why/why not.
members of government enjoy full immunity as part of the state's immunity (civil + criminal) diplomatic personnel and consular personnel's immunity is based on the (now mainstream) theory of functional necessity (immunity is required to perform diplomatic and consular functions) diplomatic personnel enjoys full immunity, consular personnel only from civil jurisdiction -> there are differences both in the extent of the protection and what the protection is based on, so the statement is false
Many multilateral treaties (such as the UN Charter or the EU Treaties) are equally authentic in several languages which nevertheless may differ slightly (or even not so slightly) in meaning. What is the solution provided for this problem by the interpretation rules of the Vienna Convention on the Law of Treaties (VCT)?
Art 33 VCLT para 1: text is equally authoritative in each language, but parties can agree that one prevails in case of divergence para 4: in case of divergence (and no agreement pper para 1) the meaning which best reconciles the texts in regards to object and purpose of the treaty shall be adopted
What is the temporal aspect of self defence?
cannot be before the armed attack = preventive self defence is forbidden however if the attack is imminent, the so called preemptive self defence is allowed cannot be too long after
General principles of law ... o … are found by way of comparing national laws. o … constitute a subsidiary source of PIL. o … in case of conflict prevail over customary international law. o … are not binding on persistent objectors. Explain why/why not.
are found by way of comparing national laws yes, they are the "common denominator" of the national legal system constitute a subsidiary source of PIL. yes, are used if a PIL problem cannot be solved via treaty law or international customary law intended to fill real/unintentional lacunae (planwidrige Lücke) in case of conflict prevail over customary international law. no, they are not "higher" than customary international law also not "lower", despite being subsidiary (it just means they only a…
In “Nicaragua vs. US (jurisdiction)” 1984 … o … the ICJ was not competent to decide the case for lack of jurisdiction because Nicaragua had never submitted an optional clause according to Art 36/2 of the ICJ statute . Explain why/why not.
Nicaragua had made a declaration under the Art 36 PICJ-S, which per Art 36 para 5 ICJ-S is deemed as accepting the optional clause of Art 36 para 2 ICJ-S The documents of the acceptance of teh PICJ-S were lost, but the ICJ had Nicaragua in its list of states that accepted the optional clause So this statement is false.
In “Nicaragua vs. US (jurisdiction)” 1984 … o … the ICJ already had jurisdiction as forum prorogatum because Nicaragua brought the case as plaintiff. Explain why/why not.
forum prorogatum means that a state accepts the jurisdiction in a specific case This can be done, inter alia, by showing up in front of the court and not disputing the jurisdiction However forum prorogatum is just one of the ways to accept the jurisdiction of the ICJ, so in the described scenario it would mean Nicaragua accepted the jurisdiction (which it already did previously with the optional clause of the Art 36 PICJ-S in combination with Art 36 para 5 ICJ-S) In casu however the US was the…
In “Nicaragua vs. US (jurisdiction)” 1984 … o … the ICJ had to base its jurisdiction on a submission of Nicaragua under Arts 36/2 in conjunction with 36/5 because of the U.S. optional clause. Explain why/why not.
Nicaragua had made a declaration under the Art 36 PICJ-S, which per Art 36 para 5 ICJ-S is deemed as accepting the optional clause of Art 36 para 2 ICJ-S The US had made a declaration directly under Art 36 para 2 ICJ-S This statement is true
In “Nicaragua vs. US (jurisdiction)” 1984 … o … lost jurisdiction when the U.S. withdrew their optional clause. Explain why/why not.
The US tried to withdraw their optional clause, referring to the reservations they made in the initial declaration. basically the us reserved the right to designate anything as an internal matter instead of for the iCJ however with a 6 month withdrawal period ICJ declared that reservation to be null because while the parties can make limitations to the declaration (such as time limits, or content-wise, which the us did both), a later declaration cannot "override" the earlier. The US however, tr…
The head of a diplomatic mission (the ambassador) … o … enjoys immunity from civil jurisdiction but is subject to criminal jurisdiction of the receiving State in case of grave crimes. o … shall not conduct any other activities for personal profit whatsoever in the receiving State. o … when declared persona non grata shall immediately leave the receiving State o None of the above statements is correct. Explain why/why not.
enjoys immunity from civil jurisdiction but is subject to criminal jurisdiction of the receiving State in case of grave crimes. false, has both civil and criminal immunity as per theory of functional necessity shall not conduct any other activities for personal profit whatsoever in the receiving State. correct, cannot work for personal profit per Art 42 VCDR but can perform literary and artistic activities when declared persona non grata shall immediately leave the receiving State Declaration o…
Compare and contrast (i.e. find and point out the difference between…!) the rules under public international law on the nationality of ships on the one hand, aircraft on the other hand!
Both, rules about ships and aircraft, are issues of national legislation: the conditions for the award of nationality of ships and aircraft are subject to national regulation. Ships, however, also have a rule under public international law as public international law requires a genuine link (ownership; Art 91 and 92 UNCLOS). As to aircraft, public international law does not require such genuine link but merely defines consequences of nationality by referring to “aircraft of a contracting state“…
Art 65 B-VG ... o …is applied to treaties changing or amending statutory laws as well as to political treaties. o … is irrelevant in relation to customary international law and general principles of law. o …allows for both general and special transformation of treaties by adoption of ordinances (regulations). o None of the statements above is correct. Explain why/why not.
o …is applied to treaties changing or amending statutory laws as well as to political treaties. incorrect makes no mention of that, while Art 50 does o … is irrelevant in relation to customary international law and general principles of law. correct, it is irrelevant CIL: it is not related to acts of states and their legal opinion GPoL: it does not regulate anything relevant o …allows for both general and special transformation of treaties by adoption of ordinances (regulations). correct text o…
The “territory” of a state consists of… o … land and maritime internal waters. o … land, maritime internal waters and territorial sea. o … land, maritime internal waters, territorial sea and airspace above these. o … land, maritime internal waters, territorial sea, contiguous zone and airspace above these. Explain why/why not.
land, maritime internal waters, territorial sea and airspace above these. The state has no territorial sovereignty over the contiguous zone but can exercise certain control rights
The 1963 Tokyo Convention… o … precludes claims for criminal jurisdiction based on the venue of the crime. o … establishes criminal jurisdiction solely on the principle of territoriality. o … was implemented in Austria through § 63 StGB. o ... superseded the 1944 Convention on International Civil Aviation. o None of the statements above is correct.
o … precludes claims for criminal jurisdiction based on the venue of the crime. false it establishes jurisdiction of the state of registry but does not preclude other claims for jurisdiction o … establishes criminal jurisdiction solely on the principle of territoriality. false based on state of registry o … was implemented in Austria through § 63 StGB. true o ... superseded the 1944 Convention on International Civil Aviation. false the Chicago convention only regulates administrative law, thus…
The head of a diplomatic mission (the ambassador) o … is immune from any jurisdiction of the receiving state whatsoever. o … is immune from civil jurisdiction but subject to criminal jurisdiction of the receiving state. o … shall not conduct any professional activities for personal profit but may write books or play the organ in church. o None of the above statements is correct. Explain why/why not.
o … is immune from any jurisdiction of the receiving state whatsoever. false immune to both civil and criminal jurisdiction but there are some exceptions (e.g. inheritance, private immovable property, ... ) o … is immune from civil jurisdiction but subject to criminal jurisdiction of the receiving state. false, see above o … shall not conduct any professional activities for personal profit but may write books or play the organ in church. correct See Art 42 VCDR
Discuss the following news report! “US State of Missouri is suing the Chinese government for the role they played in the coronavirus pandemic and the effects it has had on the state, accusing the country of covering up information […] and doing “little to stop the spread of the disease”. The lawsuit, the first of its kind, claims “Chinese authorities […] suppressed crucial information, […] denied human to human transmission in the face of mounting evidence, destroyed critical medical research […
PIL is characterized by a horizontal system - all states are equal. That means, states are immune from the governmental authority of other states. State immunity includes the immunity of representatives of states such as heads of states, heads of government, and foreign ministers. = they do not answer to national institutions of other states In casu the US state sues China (the gov is attributable to China). China's immunity extends to it's state officials = government, so the lawsuit has no ch…
What is the right of “hot pursuit” and under which circumstances may it be exercised?
= the right to pursue and arrest ships escaping into international waters. It is regulated in Art 111 UNCLOS summarize para 1 -> describes the circumstances mention para 3 -> describes when it has to stop
The invalidity of a treaty in public international law... o … may result from an error in a treaty relating to a fact. o … may result from an error relating to the wording of the text. o … is the result of two authentic languages deviating from one another in terms of meaning. o …can be invoked if the wording of a treaty is absurd. o None of the statements above is correct. Explain why/why not.
Rules of invalidity are regulated in Art 46-53 VCLT I o … may result from an error in a treaty relating to a fact. true, see Art 48 para 1 o … may result from an error relating to the wording of the text. false, see Art 48 para 3 o … is the result of two authentic languages deviating from one another in terms of meaning. false Art 43 regulates how to handle such a deviation o …can be invoked if the wording of a treaty is absurd. not a reason for invalidity as per Art 46-53 but may allow termina…
2. Sources of Public International Law … o … are subject to the hierarchy provided by Art 38 ICJ-Statute. o … can be subdivided into primary sources (conventions, customary international law) and secondary sources (general principles, judicial decisions and teachings of most highly qualified publicists). o … can be created by international organisations. o … are listed non-exhaustively in Art 38 ICJ-Statute. Explain why/why not.
o … are subject to the hierarchy provided by Art 38 ICJ-Statute. False, Art 38 ICJ-S does not contain a hierarchy, just an unordered list o … can be subdivided into primary sources (conventions, customary international law) and secondary sources (general principles, judicial decisions and teachings of most highly qualified publicists). False, there are subdivisions (primary/secondary) mentioned in Art 38 ICJ-S BUT general principles are primary, not secondary o … can be created by international…
The concept of the launching state of a space object… o … allows the identification of at least one state as responsible and liable in case of an accident. o … requires every launching state to register its space object. o … states that several states can be launching states at the same time regarding the same launch. o … only applies to states parties to the five space treaties. Explain why/why not.
o … allows the identification of at least one state as responsible and liable in case of an accident. true, see Art II Liability Conv o … requires every launching state to register its space object. false in case of multiple launching states only one registers, see Art II para 2 Reg Conv o … states that several states can be launching states at the same time regarding the same launch. true, see Art I lit c and Art V Liability Conf and Art I lit a and Art II para 2 Reg Conv o … only applies to s…
What is meant by “failed state”?
failed state is a political body that has disintegrated to a point where basic conditions and responsibilities of a sovereign government no longer function properly (lack of effective government on different grounds; see also fragile state and state collapse). state can also fail if the government loses its legitimacy even if it is performing its functions properly. For a stable state, it is necessary for the government to enjoy both effectiveness and legitimacy. Likewise, when a nation weakens…
IAC / NIAC
IAC: see CA 2 GCs = all cases of declared war or any other armed conflict between two or more of the High Contracting Parties, even if the state of war is not recognized by them. NIAC: see Art 1 AP II conflict between High Contracting Party and at least one non-state actor = individuals or groups not acting on behalf of a state must have a certain level of organisation and command structure, and control part of the territory
Compare the concept of innocent passage to Art 38 (2.) UNCLOS which deals with transit passage. Analyse and comment on the difference(s) between innocent passage and transit passage by referring to the relevant provisions.
Innocent Passage Art 17 UNCLOS places a limit on the sovereignty over the territorial sea allows private and military vessels to pass through territorial waters of another state with some restrictions innocent means it must not be prejudicial to the peace, good order or security of the coastal state submarines must surface and warships must not be ready for combat Transit Passage applies to straits used for international navigation Gives the freedom of navigation and overflight but solely for t…
Under the VCLT I a treaty... o …is invalid, if the consent to be bound by it is expressed in violation of a national provision. o … can be concluded without producing full powers by heads of states and governments, foreign and defense ministers. o …is a written agreement between states that is governed by public international law. o None of the statements above is correct.
o …is invalid, if the consent to be bound by it is expressed in violation of a national provision. false, Art 46 para 1 VCLT says that internal law is irrelevant o … can be concluded without producing full powers by heads of states and governments, foreign and defense ministers. false, defense ministers are not listed in Art 7 para 2 VCLT o …is a written agreement between states that is governed by public international law. true
The legal personality of an international organisation… o … is always limited ratione materiae. o … can be limited ratione materiae. o … is always limited ratione materiae and ratione personae. o None of the statements above is correct.
o … is always limited ratione materiae. true, it is limited to the subject matter covered by teh founding treaty o … can be limited ratione materiae. false, it is always limited o … is always limited ratione materiae and ratione personae. false, it is not limited to its founding memers rather, it has objective personality erga omnes (even to non members) this was decided by the ICJ in reparation for injuries
The right to diplomatic protection… o …. entitles the nationals of a state to be protected by this state. o … entitles nationals and foreigners on the territory of a state to be protected by this state. o … can be exercised, if no local remedies are available for the respective national. o .... can be exercised by the flag state of a ship to protect foreign crew members. o None of the statements above is correct.
o …. entitles the nationals of a state to be protected by this state. false, the right is vested with the state, so the state can decide whether to grant it, it is not a right of the national o … entitles nationals and foreigners on the territory of a state to be protected by this state. false, it only protects its nationals, and on the territory of ANOTHER state o … can be exercised, if no local remedies are available for the respective national. true, local remedies rule o .... can be exercis…
Which of the following statement(s) is/are correct? o The contiguous zone can extend to a maximum of 24 nm from the outer edge of the territorial sea. o The territorial sea can extend to a maximum of 24 nm from the baseline. o The contiguous zone and the territorial sea can extend to a maximum of 24 nm from the baseline. o None of the statements above is correct.
o The contiguous zone can extend to a maximum of 24 nm from the outer edge of the territorial sea. false, Art 33 para 2 UNCLOS: 24nm from the baselines o The territorial sea can extend to a maximum of 24 nm from the baseline. false, Art 3 UNCLOS: 12nm o The contiguous zone and the territorial sea can extend to a maximum of 24 nm from the baseline. false, Art 33 para 2 UNCLOS: 24nm for contiguous and Art 3 UNCLOS: 12nm for the territorial sea
How are possible conflicts of norms of Public International Law resolved in Public International Law?
Art 38 ICJ-Statute offers an order as to which source of international law to apply (e.g. treaties before customary international law). Additionally, the principals of lex specialis and lex posterior are also essential to the question of how to resolve a conflict of norms (see also Art 30 VCLT I regarding treaties). Later customary law could override earlier treaty law. Lastly, ius cogens always prevails. Art 103 UN-C offers a solution in the event of a conflict between the obligations of a Mem…
What makes acts of piracy illegal and what can states do about it? Does it matter which maritime zone they are in?
Art 100-107 UNCLOS regulate piracy Art 101 defines it, Art 102 extends that definition to voluntary participation Art 105 UNCLOS stipulates what sates can do about pirates and restricts that to the high seas or any other place outside of the jurisdiction of any state Within the jurisdiction of a state, it is the decision of the respective state whether to take action against the piracy acts or not.
Art 9 (1) B-VG in German reads: “Die allgemein anerkannten Regeln des Völkerrechts gelten als Bestandteile des Bundesrechts.“ Discuss the meaning of this provision.
"allgemein anerkannte regeln des VR" = customary international law and general principles of law "gelten als" = describes the relation of international law to national law There are three options to implement international law into national law: adoption: use IL in form and substance in national law, without any changes general transformation: use IL in substance, but in form of national law special transformation: create national law thati mplements the international rule, so both substance an…
What is the latin phrase describing actions by states acting with imperium?
acta iure imperii
What is the latin phrase describing actions by states acting without imperium, like private citizens?
acta iure gestionis
What are the minimum requirements that acts of self defence must fulfill?
must be both necessary and proportionate