statehood

Question 1

doctrine of three elements

Answer 1

permanent population, defined territory and a government

Question 2

rights and obligations granted by nationality

Answer 2

• right of residence, right of return, right to participate in political decision-making
• tax and military obligations

Question 3

ius sanguinis

Answer 3

children acquire nationality of their parents

Question 4

ius soli

Answer 4

children acquire nationality of birthplace

Question 5

diplomatic protection

Answer 5

A state can protect the interest of its citizens and legal persons against other states.
- exhaustion local remedies
- there was a breach of international law
- continuity of claims
- espousal of claims: the state is not obligated to grant protection

Question 6

Calvo clauses

Answer 6

Latin American states demanded foreign investors waive the right of diplomatic protection of their home state. A national cannot waive the right for diplomatic protection.

Question 7

diplomatic protection of legal persons

Answer 7

Based on incorporation or seat, but usually not nationality of owners (Barcelona Traction)

Question 8

control theory

Answer 8

In exceptional cases, nationality of owners or persons acting as organs determines nationality of a company (eg. economic measures against members of enemy states in armed conflict)

Question 9

condominium / coimperium

Answer 9

territorial sovereignty is jointly exercised by several states

Question 10

borders in rivers

Answer 10

center for non-navigable rivers, and navigation route (talweg) for navigable rivers

Question 11

effects doctrine

Answer 11

states apply their criminal law to acts committed on their domestic territory and also acts committed abroad but with consequences in that state.

Question 12

active personality principle

Answer 12

state can punish its citizens for crimes they committed abroad

Question 13

passive personality principle

Answer 13

state can punish particularly serious crimes committed against its citizens by foreigners

Question 14

protective principle

Answer 14

state can punish certain crimes against particularly important state interests even if the link is otherwise weak (eg. treason, spying, counterfeiting money)

Question 15

universality principle

Answer 15

states may exercise criminal jurisdiction over foreigners who violated international criminal law (delicta iuris gentium)

Question 16

principle of vicarious jurisdiction

Answer 16

a state may apply their criminal law to people who committed a crime abroad if the state where it was committed was unable or unwilling to conduct proper proceedings.

Question 17

protectorate

Answer 17

a state concludes a treaty in which it confers its foreign and defence policy to another state. This was the case with Tunisia and Morocco.

Question 18

mandates and trust territories

Answer 18

mandate: League of Nation entrusted certain Turkish and German territories to victorious states.

trust territory: mandates were turned into trust territories of UN, each administered by another state acting as a trustee.

Question 19

internationally administrated territories

Answer 19

United Nations Mission in Bosnia and Herzegovina (UNMIBH)
United Nations Interim Administration Mission in Kosovo (UNMIK)
European Union Rule of Law Mission in Kosovo (EULEX)
United Nations Temporary Administration in East Timor (UNTAET)

Question 20

recognition of new states and state succession

Answer 20

It has a purely declaratory effect if the doctrine of three elements are met. It can have an indicative effect if one of the aspects is disputed. It is conducted mainly through diplomatic notes, or implied recognition through bilateral treaties and establishing diplomatic relations

Question 21

state succession

Answer 21

1. dissolution: a state breaks up to two or more states (Yugoslavia, Czechoslovakia)
2. secession: a part of the territory splits off from a continuing state agaisnt the will of the continueing state and forms a new state (South Sudan)
3. separation: a part of a territory splits off with the consent of the continuing state and froms a new state (fromer Soviet republics, where Russia as a residual state continued)

Question 22

merger

Answer 22

two or more states from a new states (eg. Tanganyika and Zanzibar to Tanzania)

Question 23

legal succession?

Answer 23

Only a few basic customary rules and they are also partly disputed.
Attempted codifications:
- Vienna Convention on the Succession of Treaties (1978, 1996)
- Vienna Convention on Succession of States in respect to State Property, Archives and Debts (1983, not yet)

• treaties automatically transferring is increasingly accepted, but not highly personal (founding treaties of IOs, military alliances)
• territorial treaties automatically (Gabcikovo-Nagymaros)
• clean slate “tabula rasa”, pick and choose theory
• no duty to pay odious debts (incurred to prevent independence)
• assets, archives and debt are divided proportionally
• no succession of state responsibility: highly personal

Question 24

state immunity

Answer 24

par in parem non habet imperium: courts of one state should not sit in judgement of another state

Question 25

sovereign acts

Answer 25

acta iure imperii

Question 26

private acts

Answer 26

acta iure gestionis

Question 27

Jurisdictional Immunities of the State (Germany v Italy) (2012)

Answer 27

States do not enjoy immunity for torts committed in the forum state (state where case is filed). Whether this exists outside of the forum state for ius cogens violations was denied by ICJ.

Question 28

enforcement immunity

Answer 28

Enforcement is broader than immunity from jurisidiction because the encroachment on state sovereignty is greater with enforcement than mere juridical decisions. Many states still adopt measures against non-sovereign property, which characterisation depends primarily on purpose for which it is used.

Question 29

diplomatic immunity

Answer 29

diplomats of the sending state enjoy almost absolute immunity in the receiving state and not subject to its criminal, civil or administrative jurisdiction without home state consent.

Question 30

objective and subjective elements in state recognition

Answer 30

objective: comparing territory, population, economic performance
subjective: self-assessment of states and recognition of international community