Public international law Theorie JKU
Theorie Fragen der letzten Klausuren des Faches PIL an der JKU Linz
27 flashcards · Law · by Maximilian E.
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!
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. The decision of the arbitr…
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 à Definition in Art 2 para 1 lit c VCLT I; According to Art 7 para 2 VCLT heads of states, foreig…
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 à 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. The souvereinity of states is manifested in Art 2 para. 1 of the UN- Charter, which states that: "The Organization is based on the principle of the sovereign equality of all its Members." 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 rig…
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…
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 à 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 Opinio iuris sive necessitatis = subjective element; belief that the practice is settled enough to amount to a binding legal obligation; state practice itself may al…
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 à civilians become members of an organised armed group
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, there…
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. (Term “aggression” see also in GA-Resolution 3314 Art 1) Collective security can be understood as a security arrangement, political, regional, or global, in which each state in the system accepts that the security of one is the concern of all, and therefore commits to a collective response to threats to, and breaches of peace. Measures are listed in Ar…
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)
How can jurisdiction of the ICC (International criminal court) 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 (International court of justice) 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…
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!
“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…
21) 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
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…
Discuss all available diplomatic means of settling disputes between states!
a) 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. b) 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…
Define a "treaty"!
Acc to Art 2 para 1 lit a VCLT: 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation Concluded between States Written form Governed by international law --> Art 2 para 2 lit a VCLT: “governed by international law“ states are free to choose domestic or international law as the proper law governing an agreement of a…
Define Immunity in the context of PIL!
A state is not answerable to the national institutions of other states Immunity= immunity from governmental authority of other states Immunity is limited, though Immunity applies to acta iure imperii (Hoheitsverwaltung) Immunity does not apply to acta iure gestionis (economic actions) Austria‘s position: See Supreme Court, Hoffmann vs. Dralle in order to distinguish between acta iure gestionis and acta iure gestionis the „Privatmann-Test“ applies Anything a private individual could do qualifies…
Define IAC and NIAC!
IAC: Armed conflict between states, defined in Commn Art2 of the Geneva Conventions and Art 1 Para 4 AP I NIAC: at least one actor is a non-state armed Group, there are two types of NIAC: According to CA3 of the GCs NIAC according to AP II The difference is, that the NIAC according to AP II requires the non-state armed group to excercise territorial control. NIAC also requires a minimum level of intensity and minimum level of organisation
What is the combatants privilege?
The combatants privilege consists of two elements: killing enemy combatants is considered a lawful act of war, combatants do not have to fear criminal prosecution in case of capture by enemy forces they are to be considered prisoner of war (POW), GC3 outlines the rules of POW The concept of combatant and Combatants privilege only exist in IAC!