states

Question 1

state elements

Answer 1

three elements doctrine”
article 1 of the Montevideo convention
“The state as a person of international law should possess the following qualification:
a permanent population
a defined territory
government, and
(capacity to enter into relations with the other states” )

Question 2

people / permanent population

Answer 2

rights and obligations of nationals
right of residence and return
right to participate in the political decision making process
tax duty and military service

Question 3

acquisition / loss of citizenship of natural persons

Answer 3

ius sanguinis principle
ius soli principle
problem of the so called genuine link
acquisition of foreign citizenship
expatriation

Question 4

Nationality of legal persons/entities

Answer 4

• Several connceting points:
• Founding law
• Registration
• Seat
• Control

Question 5

Diplomatic protection

Answer 5

• Definition:
  Protection of the rights and interests of citizens of a state
  as well as legal persons and of ships and aircraft of its
  nationality vis-à-vis other states.
  “[…] diplomatic protection consists of the invocation by a
  State, through diplomatic action or other means of
  peaceful settlement, of the responsibility of another State
  for an injury caused by an internationally wrongful act of
  that State to a natural or legal person that is a national of
  the former State with a view to the implementation of such
  responsibility.“
  Article 1 Draft articles on Diplomatic Protection

Question 6

Conditions for exercising the right of diplomatic
protection

Answer 6

• Continuity of claims
  – Problem of multiple nationality
  – Problem of nationality of legal persons
• Exhaustion of local remedies
• Espousal of claims
  – Problem of the so-called Calvo clauses

Question 7

Genuine link

Answer 7

*
„According to the practice of States, to arbitral
and judicial decisions and to the opinions of
writers, nationality is a legal bond having as its
basis a social fact of attachment, a genuine
connection of existence, interests and
sentiments, together with the existence of
reciprocal rights and duties.“
* Nottebohm Case (Liechtenstein v. Guatemala), Second
Phase, ICJ Reports (1955), 4.

• nottebohm wanted to become liechtenstein citizen, so if war broke out he would be unharmed / assets would be chill (Guatemalan authorities though nah, hes german, so his assets were seized, etc.) → after war liechtenstein said no nottebohm is one of us (used diplomatic protection, took it to ICJ) → ICJ accepted Guatemala’s argument that citizenship needs a genuine link (can’t just travel there and register there, u need to have a genuine connection); failure for liechtenstein (bc requirement for nationality was not given)

Question 8

Nationality of legal persons

Answer 8

• The traditional rule attributes the right of
  diplomatic protection of a corporate entity to the
  State under the laws of which it is incorporated
  and in whose territory it has its registered office.
  These two criteria have been confirmed by long
  practice and by numerous international
  instruments.
• Barcelona Traction Case, ICJ Rep 1970, 3/42

Question 9

Exhaustion of local remedies

Answer 9

• The rule that local remedies must be exhausted
  before international proceedings may be instituted is
  a well-established rule of customary international
  law […]. Before resort may be had to an
  international court in such a situation, it has been
  considered necessary that the State where the
  violation occurred should have an opportunity to
  redress it by its own means, within the framework of
  its own domestic legal system.
• Interhandel Case, ICJ Rep 1959, 6/27.

Question 10

Exhaustion of local remedies - exceptions

Answer 10

• Local remedies do not need to be exhausted where:
• (a) there are no reasonably available local remedies to provide
  effective redress, or the local remedies provide no reasonable
  possibility of such redress;
• (b) there is undue delay in the remedial process which is
  attributable to the State alleged to be responsible;
• (c) there was no relevant connection between the injured
  person and the State alleged to be responsible at the date of
  injury; (d) the injured person is manifestly precluded from
  pursuing local remedies; or (e) the State alleged to be
  responsible has waived the requirement that local remedies be
  exhausted.
• Article 15 Draft articles on Diplomatic Protection

Question 11

Espousal of claims

Answer 11

• The State must be viewed as the sole judge to
  decide whether its protection will be granted, to
  what extent it is granted, and when it will cease. It
  retains in this respect a discretionary power the
  exercise of which may be determined by
  considerations of a political or other nature,
  unrelated to the particular case.
• Barcelona Traction Case, ICJ Rep 1970, 3/44.

Question 12

Calvo doctrine and clauses

Answer 12

• Equal treatment of nationals
• Waiver of diplomatic protection rights by investors?

Question 13

Territory

Answer 13

• Land surface
• Territorial sea and internal waters
• Airspace
• Earth’s subsurface
• Problem of demarcation
• Uti-possidetis principle

Question 14

State authority

Answer 14

• Limits of regulatory power under international
  law through sufficient proximity
• Conflicts of Law
  – Private international law
  – International criminal law
  – International administrative law

Question 15

International criminal law

Answer 15

• Territoriality principle
• Personality principle
• Active and passive personality principle
• Effects doctrine
• Principle of protection
• Principle of universality
• Principle of the vicarious/representative
  administration of criminal justice

Question 16

Recognition

Answer 16

• Only declaratory, no constitutive effect
• Explicitly by
• Formal Letter, diplomatic note
• Implicitly by
• Establishment of diplomatic relations
• Conclusion of a bilateral international treaty
• No implicit recognition
• Admission to an international organization (majority
  decisions on admission possible!)
• Ratification of a multilateral treaty

Question 17

Letter of 25 April 1996 from the Minister of Foreign Affairs of the
Republic of Austria to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia

Answer 17

“Dear Minister,
With reference to the Declaration of the European Union
of [29 January 1996] and to the Paris Peace Agreement
of 14 December 1995, I have the honour to inform you,
on behalf of the Austrian Federal Government, that the
Republic of Austria recognises the Republic of
Yugoslavia, within its existing borders, as a successor
State to the former Socialist Federal Republic of
Yugoslavia and an independent and sovereign member
of the community of states. […]“

Question 18

State succession

Answer 18

• Dismembratio
• Secession/Separation (state falls apart, so u have 2 + successor states)
• Merger/Fusion (ex out of DDR and BDR we have just 1 germany)
• Annexation/Incorporation

Question 19

Legal Sources

Answer 19

• Vienna Convention on Succession of States in
  Respect of Treaties 1978
• Vienna Convention on Succession of States in
  respect of State Property, Archives and Debts
  1983
• Customary law

Question 20

State Succession Rules

Answer 20

• Basic Positions
  – Automatic legal succession
  – Clean slate or tabula rasa
  – Pick and choose
• Differentiation
  – Localized or territorial treaties
  – Highly personal or political treaties

Question 21

State immunity

Answer 21

• Par in parem non habet imperium
• Ne impediatur legatio

Question 22

legal sources

Answer 22

• Treaties
  – European Convention on State Immunity 1972
  – United Nations Convention on Jurisdictional
  Immunities of States and Their Property 2004
• Customary international law
• National immunity laws
  – FSIA, SIA

Question 23

Principles of immunity

Answer 23

Jurisdiction
– Sovereign act (acta iure imperii)
– Private/commercial act (acta iure gestionis)
– Tortious action
Enforcement
– Intended purpose of the assets

Question 24

Iure gestionis acts

Answer 24

• “In this state of affairs, the Supreme Court
  comes to the conclusion that today it can no
  longer be said that according to recognized
  international law, the so-called acta gestionis
  are excluded from domestic jurisdiction.“
• Hoffmann gg. Dralle, OGH, 10.5.1950, SZ 23/143

Question 25

Commercial transactions

Answer 25

Article 10(1) UN Convention:
“If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.

Question 26

Personal injuries and damage to property

Answer 26

• Article 12 UN Convention:
• “Unless otherwise agreed between the States
  concerned, a State cannot invoke immunity from
  jurisdiction before a court of another State which is
  otherwise competent in a proceeding which relates to
  pecuniary compensation for death or injury to the
  person, or damage to or loss of tangible property,
  caused by an act or omission which is alleged to be
  attributable to the State, if the act or omission occurred
  in whole or in part in the territory of that other State
  and if the author of the act or omission was present in
  that territory at the time of the act or omission.

Question 27

Internationally wrongful acts

Answer 27

• “The tort liability exception from State immunity was
  also applicable in relation to claims arising out of
  military operations, when the relevant acts
  constituted a breach of a peremptory rule of
  international law.”
• Germany v Prefecture of Voiotia, Hellenic Supreme Court
  (Areios Pagos) 11/2000, 49 Nomiko Vima [Law Tribune] 2000,
  H.2.

Question 28

Internationally wrongful acts

Answer 28

• “Under current international law, a state can
  claim exemption from the jurisdiction of another
  state if and to the extent that it concerns the
  assessment of its sovereign conduct – so-called
  acta iure imperii […]. Since the SS unit involved
  in the events in Distomo was integrated into the
  armed forces of the German Reich, the attacks
  are to be classified as sovereign acts,
  regardless of the question of their violation of
  international law.“
• BVerfG, Constitutional Court, 2 BvR 1476/03, 15 February
  2006, Rz.18.

Question 29

Immunity in enforcement proceedings

Answer 29

• “There exists the following general rule of international law:
• Forced execution of judgment by the State of the forum under
  a writ of execution against a foreign State which has been
  issued in respect of non-sovereign acts (acta iure gestionis) of
  that State, on property of that State which is present or
  situated in the territory of the State of the forum is inadmissible
  without the consent of the foreign State if, at the time of the
  initiation of the measure of execution, such property serves
  sovereign purposes of the foreign State. .”
• Philippinischer Botschaftskonten/Philippine Embassy Accounts case,
  13 December 1977, 46 BVerfG, Constitutional Court 342.

Question 30

State-like subjects of international law

Answer 30

• Groups of states/state unifications
• Constituent (member) states
• Protectorates
• Mandate and trust territories
• Territories under international administration

Question 31

Other subjects of international law

Answer 31

• The Holy See
• Sovereign Military Order of Malta
• International Committee of the Red Cross
• NGOs
• TNCs

Question 32

The Holy See

Answer 32

• Supreme organ of the Catholic Church
• Episcopal See of the Diocese of Rome
• Personality under international law
• Diplomatic relations with numerous states
• Concordats
• Member or observer in multiple IOs
• Represents the Catholic Church and the Vatican City
  State as a non-governmental subject of international law

Question 33

Sovereign Military Order of Malta

Answer 33

• Personality under international law
• Diplomatic relations with numerous states
• Treaties with States
• Background
• Historically founded as an order of knights
• Possessed territory in the Mediterranean
• Military significance between the 11th and 14th
  centuries
• Today’s significance
• Humanitarian aid

Question 34

International Committee of the Red Cross

Answer 34

• Founded in 1863 by Henry Dunant (CH)
• Association under Swiss law
• Numerous national Red Cross societies followed suit (members are NOT states, but those red cross NGOs)
• Humanitarian objective (u must distinguish combatants and civilians; civilians are NOT legitimate targets, combatants are; avoid unnecessary harm)
• Monitoring functions in armed conflicts according to
  – Geneva Red Cross Conventions 1949
  – Additional Protocols 1977 -> limited personality under
  international law
• Other actors of the Red Cross Movement:
• Federation of (National) Red Cross Societies
• International Red Cross Conference

Question 35

NGOs

Answer 35

• Organized civil society
• Article 71 UN Charter
  mostly focus in peace / humanitarian aid
  NGO can conclude agreement w civil society associations
  are allowed to participate in UN Economic and social council (ex ELSA (european law school association))
• Res. 288 B (X), para 8, 27 February 1950:
• “Any international organization which is not
  established by international agreement shall be
  considered as non-governmental organization for
  the purposes of these arrangements.”

Question 36

TNCs/MNEs

Answer 36

• A TNC is an enterprise “comprising entities in two or
  more countries, regardless of the legal form and
  fields of activity of these entities, which operate
  under a system of decision-making, permitting
  coherent policies and a common strategy through
  one or more decision-making centres, in which the
  entities are so linked, by ownership or otherwise,
  that one or more of them may be able to exercise a
  significant influence over the activities of others and,
  in particular, to share knowledge, resources and
  responsibilities with the others.”
• Code of Conduct on Transnational Corporations, UN Doc.
  E/1988/39/Add. 1 (1988).