PIL Generally Flashcards
(20 cards)
What is a treaty?
VCLT Art 2 - written form, agreement between states
What is pacta sunt savanda?
VCLT Art 26 - treaties must be performed in good faith
Can domestic law excuse treaty violation?
VCLT Art 27 - no
What is the requirements for reservations?
VCLT Art 19 - reservations can’t be contrary to the object and purpose of the treaty
How are treaties interpreted?
VCLT Art 31:
According to their ordinary meaning
In good faith
In context
In light of object and purpose
Can look to subsequent agreement between parties.
Art 32: supplementary means include travaux.
When can a state get out of a treaty?
VCLT Art 62 - Fundamental change in circumstance - if change is essential basis of treaty
What is required for a treaty to be able to create a norm?
North Sea Continental Shelf Cases:
The part of the treaty can’t be able to be reserved by states or suspended during emergencies; it must have widespread and representative participation; state practice must be consistent.
Can custom be regional?
Yes - Asylum Case (Peru)
Can General Assembly Resolutions create custom?
Nicaragua - can contribute to norms, but only cautiously.
What are the sources of intl law?
ICJ Statute - Art 38
- treaties
- custom
- general principles as recognised by civilised nations
- writings of esteemed publicists/judicial decisions
What is the principle of Teoh?
Presumption that enacted law will comply with Australia’s international obligations (particularly ratified treaties)
What are the requirements of statehood?
Montevideo Convention
- Defined territory
- Permanent population
- Effective government
- Capacity to enter into legal relations with other states
Recognition???
What will determine an intl org level of personality?
- It’s constitutive document
- What is necessary for it to fulfil its functions?
UN Reparations Case; Legality of threat or use of nuclear weapons
What is the principle of non-interference?
UN Charter Art 2(7) - no interference in domestic affairs of other states
What are the bases of jurisdiction?
- Territorial (Belmarsh Prison Case)
- Nationality (Hague Convention Relating to Nationality; Natteboehm Case)
- Protective principle (controversial - Eichmann)
- Passive personality principle (your government can invoke its own laws to protect you overseas (USA v Yunis)
- Universal Jurisdiction
- Effects Doctrine (highly controversial - Hartford corp regulation extra-territorially)
What is the difference between state immunity materiae v personae
Pinochet and Arrest Warrants Case
Pinochest was rationae materiae (official acts only, torture not covered).
Arrest Warrants - congo minster was currently serving, had absolute immunity. All about what functions - foreign minister eg.
Explain diplomatic immunity
Vienna Convention on Diplomatic Relations
Art 22 - state must protect diplomatic missions
Art 27 - diplomats must have free communication
ARts 29, 31, 41 - immunity from local laws
Art 9 - states can declare persona non grata
How are reparations calculated?
Chorzow Factory Case (PCIJ) - reparation must wipe out all of the consequences of the illegal act.
Must be adequate, prompt and effective (Anglo Iranian Oil Case)
Where is the prohibition on the use of force?
UN Charter, Art 2(4) - now jus cogens (Nicaragua)
When can a state use force?
For defence (art 51) - response to armed attacked; must be reported to SC. (Caroline Case - necessity: imminent threat, with no moment for deliberation.)
To protect nations (Contentious) (Entebbe Incident).
R2P/humanitarian intervention (not existing yet)
Security Council Chapter VII powers - art 43
