PIL 1
89 flashcards · Other · by Klaus Voraberger
1) 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.
5) 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
4) 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 therm 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; According to Art 7 para 2 VCLT heads of states, foreign…
3) 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 sovereignity 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, incap…
2) 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!
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 the law but also with the subject-matter of the dispute. Judges of the ICJ, although being honoured experts of law, are not necessarily experts considering the subject-matter of the dispute.
8) How does customary international law evolve?
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”; State Practice = objective element; actions, omissions or acquiescence in various ways; to be considering according to its duration, repetition, generality, and consistency opinion iuris sive necessitatis = subjective element; belief that the practice is settled enough to amount to a binding legal obligation; state practice itself may a…
7) What is the position of a land-locked state under the law of the Sea?
Land-locked states as flag states; right of innocent passage (Art 17-19 UNCLOS); freedom of navigation and overflight; possibility to lay submarine cables and pipelines in the exclusive economic zone (Art 55 – 75 UNCLOS); land-locked states (69 UNCLOS) (and geographically disadvantaged states – 70 UNCLOS) have a right to participate in the exploitation of an appropriate part of the surplus of the resources on an equitable basis; same freedom in the zone of continental shelf – the costal states…
6) 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…
12) What ist 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)
11) 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 wheater 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)
10) 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, the…
9) 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; as soon as civilians refrain from DPH, they regain their status as protected civilians; revolving door phenomenon; however, beyond sporadic, spontaneous or unorganised direct participation civilians become members of an organised armed group
14) 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); Act-of-state doctrine: 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)
13) 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. (Term “aggression” see also in GA-Resolution 3314 Art 1)
2) 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!
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 the law but also with the subject-matter of the dispute. Judges of the ICJ, although being honoured experts of law, are not necessarily experts considering the subject-matter of the dispute.
1) 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.
20) Explain the term “government” as one of the constitutive elements of statehood! (01.18) (Selbst beantwortet)
“Government” comprises all three branches, i.e. legislative, executive and judicial functions= all functions of a state performed with imperium and affecting int. relations. Exclusivity + independence. a) Exclusivity means that no one challenges the state in the exercise of these functions. b) 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 authority (e.g UN -> authority of security counc…
19) 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…
18) 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…
17) 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:…
22) Difference between so-called “Hague Law” and “Geneva Law”?
a) 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 prote…
Requirement of statehood
Territory effective control population Souveränität
excepzions of diplomatic immunity
gvb
requirement of state intervention for private organization
exhausted civil means
theory of functional necessity
Art 42 VCDR. diplomatic bagents shall not condict business but are allowed to engage in cultural non profit activity sing in quire, play in orchestra. shall stay out of the eg tax system of the recieving state
forum prorogatum
when icj juristiction is established
art 55 ICJ Statute
icj decides by majority (1) in case of equall votes the president or representing judge cast a vote(2)
palmas case
effective souvereignity by effective control thhrough established and maintained settllements garrisons. effective souvereignity differs according to the territory. less dense popolated or remote areas require less
barcelona traction
leading case diplomatic immunity problem about nationality of claim rule
state immunity
diplomatic protection state cannot be taken to court international by individual except bit bilateral investment treaties providw arbitrary
act of state doctrine
is a domestic matter a state does not sit in judgement of another states acts on its territy. he is not bound to respect or enforce such acts if they are in violation of ordre public (local human rights violation) tuchfabrick checkoslovakia holz
prohibition of force
art 2(4) Un charter except self defense or collective security selfdefense only if necessary and urgent armed attack is immanent or suspected european view does not alow preventive self defense
establishment of icj juristiction
adhoc (Special agreement) post hoc forum prorogatum (when party accepts court through substancial response to a claim) optional close art 36 para 2 always consensual
geneva convention
obligations of atates; n conflict. violatable by omission
genicide convention
1948
carolina case
self defense is matter of last resort
principles of geneva law Ihl
distinction, proportionality, precaution, necessity
hague law
conditions of self defense art 51 un charter
armed attack, customary int law, information to sec counsel
ratione personae
disputed for igo
revolving door phenomenon
Dph remains civilian for as long as his engagement does not go beyond sporadic, spontaneous and unorganized
collateral damage
can only be civilian, is only accepted if the military advantage is at least equal. otherwise the attack has to be stopped
how to determine a attack under ihl
civilian vs military objective humans, revolving door, things, by nature or use the attack is to be aimed at only military objective
categorizitions of armed conflict
International armed conflict, one state on each side of the conflict NIAC, only on one side is a state party depending on the degree of organization of the non state party ap2 or just CA3 apply
how to solve conflicts of norma in PIL
Art 38(1) ICJ Statute -is an order of relevance but not hierachy cil lex specialis, lex posterior art 30 Vclt ius cogens art 103 un charter
unilateral reservation after conclusion to bilateral treaty possible?
no. has to be consensus. other wise new treaty. pacta sunt servanda
ius ad bellum
recht das zu Kampfhandlungen legitimiert art 51
ius in bellum
geneva und hague law ihl principles
Genuine link
elationship between a state and its nationals, between a state and its ships. No genuine Link with aircraft.
Establishment of ICJ juristiction
Declarations of acceptance of the compulsory jurisdiction of the ICJ are facultative and may be declared unilateral. A Condition of reciprocity is permissible. Nicaragua
Private individual test
Acts a private can do, in the state of proceedings are qualified as acta iure gestionis
Acta iure gestionis
Immunity does not apply to acta iure gestionis, in order to distinguish between acta iure gestionis and imperii the Private individual test should be applied
Immunity of States
A state is not answerable (as a potential party of proceedings) to the national institiutions of another state, which means immunity from governmental authorities of other states. (acta iure imperii)
necessity and preemptive selfdefense - carolina case
An act of self defense must be based on the principle of necessity, meaning instant, overwhelming, leaving no choice of means and no moment of deliberation. Hence Force must be the only available means. Preemptive self defense is not precluded within Art 51, as it stipulates „occurs“ rather than „has occured“.
Proportionality - oil platform case
Acts of self defence must be both necessary (-> Caroline Case) and proportionate
Requirements Threshold use of force
Use or force can be justified in two circumstances, collective measures VII by SC or self defense. For application of self defense, Nicaragua must have had comitted an armed attack. Logistically or weaponry support is not constituting an armed attack. Maybe violates principle of non-intervention. rt 39 ff UN Ch Art 51 UN Ch Friendly realtions - nicaruagua
Non Intervention
Principle of non-intervention stipulates that principally every State has the right to choose its political, economic, social and cultural system, without interference in any direct or indirect form by another state. Intervention is wrongful when methods of coercion or force are used to intervene in a states sovereignty. nicaragua case - friendly relations
Against non State Actor
Attack from non state actors is coverd by Art 5 Washington Treaty, which states that a attack against one, shall be considered an attack against them all (NATO) casus foederis
use of force - nicaragua
Prohibition of use of force and intervention are normas of CIL
armed attack - nicaragua
Scale and effects: an armed attack must be confirmed if the scale and effects are comparable with an attack of armed forces (ie sending armed bands to another state - mercanaries, …).
attribuation nicaragua case
Assistance ie with weapons, is not considerd an armed attack attributable to the assisting state, Sending them (in form of control their entry and conduct in the state) may constitute an armed attack -> scale and effects Violent acts of rebels, trained and supported by another state, can only be attributed to that state if this state exercises effective control over the rebels mission. (instead of rebels acting on behalf of themselves)
Collective Self defense - nicaragua
As far as the principle of non intervention is concerned, the use of collective self defence is prohibited under International law
act of state doctrine
Generally foreign legal acts of states cannot be reviewed by domestic courts. Par in parem non habet imperium. Sabbation Amendmemnt constituted an exception if expropriation measures of US Property contradicts international law as such. limits The odre public is limiting the act of state Doctrine. No State has to accept acts of another State which should be executed on its territory and wouldnt have been legally allowed in this way. (Expropriation of property located in Austria without Comoensa…
juristication of states - lotus case
There is no rule in PIL permitting a state to exercise its jurisdiction, also if States never prosecuted foreigners abroad (on ships i.e.), there is no rule that obliges them to refrain from prosecution since there was no opoinio iuris in this practice. But still, a connection to the case between state and prosecuted person is required.
immunity of state organs - yerodia case
Full Immunity during incumbency However, Home State may institute proceedings Homestate can also waive immunity After incumbency - Organ is liable International Tribunals may initiate proceedings, even agains state organs enjoying immunity.
diplomatic protection
Diplomatic Protection is vested in the state, Individuals may only encourage states to protect them Local remedies have to be exhausted, only if justice is denied DP may be exercisced without exhaustion of local remedies In general, an individual cannot institute proceedings before a court against sovereign states. (heute euch noch so -> Klagen gegen Ö wegen Ischgl/COVID?)
Diplomatic immunity
Protection of Diplomacy does not refer to the protection of a person, it refers to the protection of the sending state (functional theory meanss that Immunity from the governmental authority of the receiving state is required to properly perform diplomatic and consular function, without being harassed by the receiving state, S. 101
conduct and ommission - dars
Breach of pil can be comitted either by active behavior or omission. Hence acts of privates can be attributable to the strate, if the state knew about it and refrained from actions against the private, and even more if the state countenanced these acts.
Attribution genocide case
State is only responsible if an wrongful act can be attributed to the state which is also enshrined in Art 8 DARS. But this needs a proof of the State claiming for Responsibility.
occupation - western sahara
Occupation in international law can only be lawful if the territory is terra nullis Self determination has a major influence on state building processes (external self determination)
territory - palmas case
Discovery alone is an inchoate titel in order to exercise souvereignity, what really matters is effective souvereignity over a certain area.
limited to territorial souvereignity
The principle of restricted territorial sovereignty is paramount in international environmental law. Souvereignity only goes as far as no other state is beeing heavily injured.
Nationality - nottebohm case
In case of Dual nationality, genuine link determines the Nationality, hence the State exercising diplomatic protection. Single Nationality - no such link is required (othertwise the Individual will be left stateless which is contrary to the purpose of diplomatic protection) Genuine Link: factors may be habitual residence, family ties, center of interests, participation in public life
state immunity
State immunity is only granted in case of acta iure imperii (ecercise of public power), but there is no exclusion from the jurisdiction in case of acta iure gestionis (Distinction - Private-inidividual test)
Ango-Norwegian Fisheries Case
a State is not bound by a norm of CIL if it acts as a persistant objector. The Formation of a norm of CIL can not be prevented, but it does not bind every state - hence regional CIL could evolve
Effective Government, Attribution
Recognition is not necessary, no constitutional effect, its more a political sign. The crucial criteria is that a government is exercising its functions effectively. Once established effectively, its acts may also be attributetec to the state -> DARS If Government changed in violation international law, the government mist not be recognized. Art 10 DARS
First Admission - to un membership
The requirements for admission of a State to membership in the UN are in Art 4 UN Ch and are exhaustive! It is not permissible to subject an affirmative vote on a condition (i.e. that other states are admitted as well). art 4 un c
lex specialis - wimbeldon case
Treatys are lex specialis over CIL, therefore Germany violated its obligations of the treaty by prohibiting the passage of the French vessel trough the Kiel River
universal cil - north sea case
Universal CIL needs settled practice, state practice has to be extensive, consistent and permanent
asylum -regional cil
Regional CIL applies to countries of a specific region, a state invoking a regional norm of CIL must prove the eistence of such a norm. -> both elements: general practice (constant and uniform usage) and opinio iuris
treaty interpretation renard case
„Legal opinions“ of scholars are not sources of international law (do not mix with „Teachings“)
treaty interpretation
Supplementary means of interpretations may be used ONLY if primary means fail to clarify the meaning of a provision VCLT I, 31, 32
tERmination of a treaty - namibia case
Even if South Africa is not a Party of VCLT, a treaty is terminated when a breach as enshrined in Art 60 occurs, hence SA presence in Namibia as a protective power ended
treaty error - temple case
An Error can not be invoked it the party itself contributed to the error or could have avoided it. Acquiescence can be seen as legal approval of an unilateral act, if the other state trusted to the legal existence. vclt 1
treaty full powers
Every head of state is persumed to be able to act on behalf of the state in its international relations (Full powers) Legal persumtion of having full powers (Head of state, Foreign Minister, …) Art 2,7, 8, 46 VCLT I
treaty reservation - genocide case
Reservations are permissable only if not expressively prohibited by the treaty and if the reservation does not contradict the purpose of the treaty. Hence it is not required that a reservation is extressly permitted. No acceptance of the reservation of other states is needed, unless treaty provides
TREATY interpretation - renard case - second admission
Interpretation may be exercised by wording and the systemantic context of a provision, refering to travaux preparatoires is only permissable if the wording leaves the meaning of a provision unclear. Art 4 UN CH