Internationaal Recht (Week 2)
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Internationaal Recht (Week 2) - Leaderboard
Internationaal Recht (Week 2) - Details
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41 questions
| 🇬🇧 | 🇬🇧 |
| Name the two points about the relationship between IL and national law. | The two points: 1. IL asserts its own supremacy over national law 2. The manner in which IL is applied in national legal systems: - Monism (single legal order, can be applied directly) - Dualism (two separate legal orders, translation is needed) |
| How are treaties incorporated in national law? | Summarized: 1. A short statue with the treaty as an annex; or 2. A more thorough reformulation and interpretation in new legislation |
| Why do most states honour their legal obligations towards each other? | Summarized: 1. States are well-aware of the long-term benefits of a well-functioning international legal system; 2. States care, like most human individuals, about their reputation; 3. To reap the benefits of an international organization, participating states are generally expected to abide by the established norms, practices and institutions. |
| What is the term we use when we look at states that (or subjects) violate IL obligations? | State responsibility. |
| Name the different type of rules for state responsibility. | The rules: 1. Primary rules: rules that define particular obligations that may generate responsibility if violated; 2. Secondary rules: rules that determine the consequences of violating the primary rules (laws on responsibility). |
| Which subjects are not responsible under IL but are covered on behalf of other law. | Summarized: 1. International corporations (NL) 2. Individuals (ICL) |
| Name the two elements from article 2 ARSIWA (subjectieve toets). | The elements: 1. Conduct must be a breach of an international obligation; and 2. That conduct must be attributable to a state. |
| What does attribution mean? | This means that a breach of IL can be attributed to a state. |
| Where can we find the articles in ARSIWA about attribution? | Articles 4 to 11 of ARSIWA. |
| Define article 4 ARSIWA (Acts performed by the state and its organs). | All conduct of state organs is considered an act of the state regardless of whether the organ in question exercises a particular function (legislative, judicial, etc.). |
| Define article 5 ARSIWA (organs exercising governmental authority). | The acts were performed by organs exercising governmental authority. The person exercising authority is not doing this for a state organ. Examples: contracted prison guard, immigration officials, etc. |
| Define article 6 ARSIWA (acts by organs on 'loan' from another state). | If a state places one of its organs at the disposal of another state, and international obligations are breached, the receiving and not the sending state is attributed responsibility. |
| Define article 7 ARSIWA (acts ultra vires). | This article oversees acts ultra vires. A state remains responsible for conduct performed by its organs and officials in cases where the organ or official acted contrary to orders and instructions or in excess of authority. |
| Define article 8 ARSIWA (acts performed by private individuals). | State is responsible for person or group if they are acting on the instruction of, or under the direction or control of, that state in carrying out the conduct. Two situations: 1. Individuals act under instruction of state 2. Individuals are under effective control of state |
| Define article 10 ARSIWA (acts of an insurrectional movement). | If an insurrectional movement gets control of the state. The state will be held responsible. |
| Define article 11 ARSIWA (acts subsequently acknowledged and adopted). | State acknowledges and adopts conduct of individual. |
| Name the exception for a states own responsibility. | A state can be responsible for co-operations with another state. Article 16 ARSIWA. |
| What can justify a state's behaviour that would normally be defined as a wrongful act? | The circumstances precluding wrongfulness from article 20 to 25 ARSIWA. |
| Define article 20 ARSIWA (consent). | Valid consent by a state to the commission of an act precludes the wrongfulness of that act as long as the act does not exceed the limits of that consent. Two requirements: 1. Consent must be given freely without coercion and it must be clearly expressed; 2. It must be given beforehand or at the time. |
| Define article 21 ARSIWA (self-defence). | The wrongfulness of an otherwise unlawful act is precluded if it is in line with the right to self-defend (article 51 UN Charter). Interpret both articles together. |
| Define article 22 ARSIWA (lawful countermeasures). | A state must be allowed to respond to another state's international wrongful acts by taking certain countermeasures in order to bring the wrongful acts to an end. There are requirements: 1. Art. 49: only against the other state and with purpose to resolve the matters 2. Art. 50: there is a fine line you can't cross (article 2(4) UN Charter, etc.) 3. Art. 51: proportionality 4. Art. 52: procedural requirements 5. Art. 53: countermeasures must be terminated as soon as the wrongful act ceased. |
| Define article 23 ARSIWA (Force majeure). | A state may justify non-performance of an obligation in the case of the occurrence of an irresistible force or of an unforeseen event. Be aware: 1. State may not contribute to the situation 2. Or if it has assumed the risk of the situation occurring |
| Define article 24 ARSIWA (Distress). | An agent of a state may be justified by not performing an IL obligation if it has no other reasonable way of saving the agent's life or that of other persons in the agent's care. Be aware: 1. Breach is nog justified if it is caused by state conduct or 2. The act causes a comparable of greater peril for the injured state |
| Define article 25 ARSIWA (Necessity). | Relates to rare cases where the only way for a state to safeguard an essential interest that is threatened by a grave and imminent peril is to refrain from performing another IL obligation that is considered to be of a lesser weight or urgency. Wrongful acts = safeguard vital interest. |
| How do you read article 20 - 25 ARSIWA with regards to article 26 ARSIWA. | Article 20 - 25 ARSIWA are useless if article 26 ARSIWA is of importance (ius cogens/peremptory norm). |
| Name the two most important consequences in regards to a state being internationally responsible (attribution). | The two consequences: 1. Article 30 ARSIWA (cessation): state immediately has to terminate wrongful doing 2. Article 31 ARSIWA (reparation): make full reparations for the wrongful act. |
| Name the other consequences of state responsibility. | Summarized: 1. Consequences, not punishments 2. Duty of performance 3. Assure and guarantee non-repetition 4. Countermeasures |
| Name the three forms of reparation. | The forms: 1. Restitution (Article 35 ARSIWA) 2. Compensation (financially assessable damage, article 36 ARSIWA) 3. Satisfaction (can't be disproportionate or humiliating) |
| Who may invoke a breach? | Summarized: 1. The injured state (article 42 ARSIWA) 2. Non-injured states (article 48 ARSIWA) - Sub a: erga omnes partes, collective interest, example: human rights treaties - Sub b: erga omnes, breach is owed to the IL community as a whole. Any state can invoke a breach |
| Name the three consequences of a serious breach (ius cogens/peremptory norm). | The consequences (article 40): 1. Cooperate to lawfully end breach (positive duty) 2. Non-recognition 3. Duty not to aid or assist in maintaining the situation |
| Name the means of settling international disputes. | Non-adjudicatory: 1. Negotiation 2. Good offices (third party offers to help with direct negotiations) 3. Mediation 4. Commission of inquiry (inquiry for fact checking/finding) 5. Conciliation (report with non-legal binding solutions) Adjudicatory: 1. Arbitration 2. The ICJ 3. International Courts and tribunals with a specialized mandate |
| How does the UNSC resolve disputes between states? | The USCN: 1. Has responsibility for the maintenance of international peace and security 2. Art. 33: first try to resolve it on your own 3. Art. 34: the Council may investigate any dispute or situation 4. Art. 36: the Council may recommend appropriate procedures or methods of adjustment 5. Article 37 and 38: if the states fail to resolve --> go to SC for recommendations for pacific settlement |
| What is remarkable when we look at the UN and ICJ? | That all members of the UN automatically are parties to the ICJ. |
| Name the functions of the ICJ. | The functions: 1. The court has contentious cases 2. The court gives advisory opinions 3. Judgments are binding 4. Parties can't appeal |
| Who has acces to the ICJ? | Article 35: 1. The court is open to the state parties to the Statute 2. There are two ways non-state parties may gain acces: - UNSC may provide a non-party state with acces to the court" - A non-party may gain acces to the Court on the basis of special provision contained in treaties in fore |
| Name the ways states can consent to jurisdiction in regards to the ICJ. | Summarized: 1. Consent by explicit agreement (art. 36 ICJ Statute) 2. Consent by treaty (special provision --> you have a dispute go to ICJ) (art. 36 ICJ Statute) 3. Declaration under an optional clause (art. 36 (2) ICJ Statute) 4. Forum prorogatum |
| What does article 36 (6) ICJ Statute tell us? | That the ICJ has the last word in regards to its jurisdiction. |
| What are provisional measures? | Measures that the Court takes before their final decision in order to prevent the violation of any rights because of the other state's behaviour. These are binding measures. |
| Name the conditions of provisional measures. | The conditions: 1. Urgent need to take actions (imminent and irreparable risk) 2. Appears (prima facie) that the Court has jurisdiction on the merits 3. Merits on the case related to provisional measures |
| What are article 65 and 68 ICJ Statute about? | About the advisory opinions of the ICJ. These are not legally binding, can be given at any time and follow a strict procedure. |