Introduction to Public International Law Flashcards
What is Switzerland’s Relationship with International Law?
Switzerland follows the monist approach. Additionally, Switzerland follows the doctrine of incorporation, which means there is no need for express adoption by national legislation in order for international law to become part of national law.
However, this does not automatically mean that the international treaty can be directly relied on by an individual in national courts. The norm needs to be self-executing to become directly applicable for individuals.
What are the requirements for self-executing norms?
i) The provision must directly regulate rights and duties of the individual.
ii) The provision must be sufficiently concretized in order to constitute an appropriate legal basis for authoritative adjudication.
–> ii) In the case at hand, the provision is sufficiently concretized and may serve national courts as legal basis for an individual judgment.
Can Country X rightfully claim that treaty X is invalid?
Invalidity due to national legislation
According to Art. 46 para. 1 VCLT, invalidity under national law can only serve as an excuse if
the violation was manifested and concerned a rule of fundamental importance
What are the different phases of concluding a treaty?
- First Phase: Negotiations to reach a preliminary agreement between the states on an international level
- Second Phase: Approval procedure on a national level
- Third Phase: Expression of binding consent on international level (ratification)
–> see next card for legally binding Effects of treaties
What are Requirements for legally binding effects of Treaties?
i. The state has given consent to be bound (Art. 11 VCLT)
Consent may be expressed by signature, exchange of instruments constituting a treaty, ratifi-
cation, acceptance, approval or accession, or by any other means if so agreed
(Art. 11 VCLT). According to Art. 12 para. 1 lit. c VCLT , the consent of a state to be bound by a treaty is expressed by the signature of its representative when the intention of the state to give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiation.
ii. the treaty has entered into force (Art. 24 VCLT)
In general, the treaty itself provides for the respective date. In all other cases, the treaty will
enter into force as soon there is a consent between all negotiating states(Art. 24
para. 2 VCLT)
Monist Theory
The view that international law and national law are two components
of a single body of law. Law is understood as a single entity of which the national and international versions are merely particular manifestations. In a situation of conflict, international law prevails over national law.
Examples: Switzerland, Austria, the
Netherlands, France, Luxembourg, Belgium
Dualist Theory
The view that international law and national law are two independent
systems of law, which do not operate in the same sphere. In situations of
conflict, international courts apply international law and national courts apply national law.
Examples:Germany, United Kingdom, USA, Canada, Italy
Scope of Application of the VCLT (Question in exam: IS the VCLT applicable in this case at hand?)
1) States must be parties to the VCLT (Art. 1 VCLT, Art. 2 para. 1 lit. a VCLT)
2) Only treaties between states in written form (Art. 2 para. 1 lit. a VCLT)
3) Only treaties which are concluded by states after the VCLT entered force in 27 January 1980 (Art. 4 VCLT)–> no effect before time (The VCLT entered into force on January 27, 1980)
Is it possible to add a reservation to a Treaty under the VCLT?
When signing or ratifying a treaty, a state may formulate a reservation [0.5 Points] (Art. 19-
23 VCLT). A reservation is a unilateral statement [0.5 Points] and expresses the intent of a state to modify or exclude an otherwise binding treaty obligation.
A reservation is admissible, unless one of the three following cases applies:
First case: the reservation is prohibited by the treaty
Second case: the treaty provides that only specified reservations, which do not include the reservation in question, may be made
Third case: the reservation in question is incompatible with the object and purpose of the
treaty
Which international law provisions govern the interpretation of international treaties?
The Vienna Convention on the Law of Treaties of 23 May 1969 provides in Art. 31-33 for the relevant rules on the interpretation of international treaties.
Which law governs the contract between Country X and the private supplier?
The contract between State X and the private supplier is a contract between a state and a private legal person constituted under domestic law. The VCLT does not apply to this type of treaty (Art. 5 VCLT). Instead, it is governed by the national law of the parties’ choice.
Do you agree with the President of Country X that the new Article 125 of the Constitution causes the treaty between the two states to be terminated?
According to the principle of pacta sunt servanda (Art. 26 VCLT), every international treaty in force is binding on the parties and must be performed by them in good faith. Changes of the national law of one of the contracting parties do not challenge the validity of a treaty.
In casu…
* Therefore, The President’s statement is wrong. The treaty is not terminated by the change in national law [1 Point].
Explain the doctrine of clausula rebus sic stantibus
The clausula rebus sic stantibus is the doctrine allowing for treaties to be terminated if the circumstances have changed so fundamentally that performance of the treaty becomes something far removed to what was originally intended. This change must have been unforeseen. If the parties foresaw it but nonetheless concluded the treaty there would be no ground for allowing termination of the treaty. The doctrine is included in Art. 62 VCLT [1 Point].
Principles of International Environmental Law
- No harm principle: States have a duty to prevent, reduce, and control pollution and significant transboundary environmental harm.
- Principle to undertake an environmental impact assessment: An environmental impact assessment shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
- Precautionary principle: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation. The binding nature of this principle is not yet accepted.
- Polluter pays principle: The costs of avoiding or eliminating damage are borne by those responsible for causing it. The binding nature of this principle is not yet accepted.
There is a dispute… Will the ICJ decide the case? List the requirements…
The International Court of Justice (ICJ) will decide the case if the following requirements are fulfilled:
The parties to the conflict must have access to the court. The ICJ is open to states parties to the ICJ Statute (Art. 35 para. 1 ICJ Statute). All members of
the UN are also parties to the ICJ Statute (Art. 92 para. 1 UN Charter).
Furthermore, the states must have accepted the jurisdiction of the ICJ. This requirement is met if the parties express their consent in the treaty itself or in a special agreement in general or with regards to a specific case (Art. 36 para. 1 ICJ Statute) or both parties declare that they recognize the jurisdiction of the ICJ as compulsory
without special agreement (Art. 36 para. 2 ICJ Statute).
