Summary Class notes - Public International Law

Course
- Public International Law
- Michaela van Rijn
- 2015 - 2016
- Erasmus Universiteit Rotterdam (Erasmus Universiteit Rotterdam, Rotterdam)
- Rechtsgeleerdheid
121 Flashcards & Notes
2 Students
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Summary - Class notes - Public International Law

  • 1456095600 22/02/2016'' ''E-lessons''

  • e-lesson 13 - What is the meaning of the concept kompetent-kompetenz?
    The Tribunal (ICTY) pronounced that when there is a dispute regarding its jurisdiction, the Tribunal has an inherent competence to determine the extent of its own jurisdiction. Tadic case
  • e-lesson 13 - The ICC's jurisdiction has a temporal limitation, what does this mean? 
    Only crimes committed after the entry into force of the Rome Statute can be dealt with by the Court (Article 11). With respect to the crime of aggression, the Court's jurisdiction takes effect only after the coming into force of the above-mentioned amendment to the Rome Statute, in 2017.
  • e-lesson 13 - The jurisdiction of the ICC is based on the principle of complementarity (Article 1 Rome Statute), what does this mean?
    In other words, the domestic criminal courts enjoy priority in exercising jurisdiction. Thus, only if a domestic legal system is unable or unwilling to deal with the international crime does the ICC have jurisdiction (Article 17, 1b Rome Statute).
  • e-lesson 14 - What rules does jus ad bellum regulate?
    These rules regulate when force may legitimately be used. 
  • e-lesson 14 - What rules does jus ad bello regulate?
    How to behave in an armed conflict
  • e-lesson 14 - What does the effective controle doctrine require?
    The effective control doctrine requires that in order to attribute the acts of private actors to a state, the state must have not only provided support (material, financial etc.), but also dictated the 'planning and direction' of the activities of the private group, in this case the use of force. Where a state provides all-round support to a private group but does not have a decision making role or control in planning or directing the activities of the private group, the requirement of 'effective control' is considered to have not been fulfilled and therefore the acts of the private group would not be attributed to the state.
    In comparison with the overall control doctrine, the effective control doctrine requires a higher degree of control by a state over the non-state actors in order to establish attribution.

    (Nicaragua case)
  • e-lesson 14 - What does the overall controle doctrine require?
    On the other hand. when a state provides support to a private group, and only generally 'coordinates or helps', but does not control or direct, the planning or undertaking of the activities of the private group, the requirement of 'overall control' is considered to have been fulfilled. 
    (Tadic case)
  • e-lesson 14 - The right to self-defence is not an open ended right. Certain criteria have to be met for a state to lawfully exercise the right to self-defense. Name these criteria.
    These criteria concern the occurrence ofan armed attack, necessity and proportionality. It is generally understood that a state need to be subjected to a significant armed attack (e.g. not minor border skirmishes) in order to invoke its right to self-defence. The resort to the use of force in self-defence has to also be the last resort to thwart an attack. And finally, the proportion of such use of force in self-defence has to be limited to a level that is minimally sufficient to repel an attack.
    - Nicaragua case
    - Oil Platforms case
    -  Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
  • e-lesson 14 - Article 51 UN Charter also refers to 'the inherent right of ... collective self-defense'. What does this mean?
    This means that a state may resort to force in the defence of another state. The ICJ dealt with the right of collective self-defence in detail in the Nicaragua case and indicated that the state desiring other states to engage in collective self-defence on its behalf 'normally make an express request to that effect'.
  • e-lesson 15 - Certain elements are generally acknowledged to be constitutive of humanitarian intervention, name these elements.
    One element is the existence of a 'cross-border aspect': intervention entails activities directed at or carried out within another state. The other element is the 'non-consensual aspect': these activities need not enjoy the consent of the 'target-state'. The sole aim of the intervention needs to be prevention of - further - gross human rights violations i.e. the protection of the population of the 'target-state'. This 'humanitarian aspect' is yet another definitional element of humanitarian intervention. In addition, there has to be no other alternative to the measures (the ultimum remediumaspect) and the measures need to be limited in time and scope (the proportionality aspect).
  • Reservations to a treaty
    There are four responses a state could have to reservations made by the Reserving State. One is explicit acceptance (article 20(1) VCLT is about a different situation, namely when certain reservations are expressly authorised by the treaty in question). Two is the more common situation of implicit acceptance (acceptance inferred from silence over twelve months time, article 20(5) VCLT). In both situations, the legal effects of the acceptance are set out in articles 20(4)(a) and 21(1) VCLT. As a third option, a state could object to the reservation, but not wish to jeopardise treaty relations between itself and the Reserving State (article 20(4)(b)). The legal effects of such an objection are described in article 21(3). Lastly, a state could object and not wish to have treaty relations with the Reserving State (article 20(4)(b). The consequences are simply that the treaty will not enter into force as between the Reserving State and the Objecting State.
  • 1577833201 E-lesson 1: Introduction

  • Four criteria Montevideo criteria?
    1. Permanent population
    2. Defined territory
    3. Government
    4. Capacity to enter into relations with other states
  • What are the two main theories about recognition of statehood?
    1. The declaratory theory: according to this theory, recognition of a new state is nothing more than a formal acceptance of fact.
    2. The constitutive theory: according to this theory, the recognition of a state by other states is an additional requirement in order for a state to come into existence.
  • Where does the degree of international legal personality of IO's depend on?
    On the competences of the IO. The international legal personality may explicitly be granted in the constituent document of the organization (the 'founding treaty'). More frequently however, the international legal personality can be implied or inferred from the constituent powers of the organization.
  • Which two requirements must be met in order for a rule of customary law to emerge?
    1. State practice: a sufficient number of states of the international community must have acted in a particular manner for a certain amount of time. This is the objective element. 
    2. Opinio juris (sive necessitatis): states must have carried out these acts with the conviction that these acts have been permitted or even required under international law. 
  • What does erga omnes mean?
    The term 'erga omnes' does not describewhois under a particular obligation; rather, it describesto whom an obligation is owed. Specifically, anerga omnesobligation is owed to the international community as a whole. Examples oferga omnesobligations include: the prohibition of slavery, prohibition of racial discrimination and certain environmental obligations.
  • In which cases is the objective criteria for customary law explained?
    North Sea Continental Shelf & Nicaragua vs. US
  • What is the definition of human rights?
    Human rights can be defined as fundamental and inalienable rights that all human beings consider essential.
  • What 2 types of jurisdiction does the ICJ has?
    1. Universal jurisdiction: available for states from all continents
    2. General jurisdiction: it can rule for all kinds of topics
  • Which explanations are there for the absence of a single overarching authorithy in International Law?
    -states make international law themselves, so they have very little incentive to break it
    -the application of law is very much a matter of routine, and this is no different in international law
    -international law is based on the principles of reciprocity.
    -the role of legitimacy: a rule is generally perceived as useful and that has been created in the proper manner may be seen as legitimacy and exercises a compliance pull
    -states are few in numbers and attached to their territory
  • What is meant with 'the search of a compromise between the naturalist and positivist traditions'?
    Legal positivism -> claims that valid laws are simply rules from certain people
    Natural law theory -> recognizes law and morality as deeply connected if not one and the same. 
     This is why many believe that natural law gives you a way to point out the dangers of legal positivism.
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