states Flashcards
state elements
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” )
people / permanent population
rights and obligations of nationals
right of residence and return
right to participate in the political decision making process
tax duty and military service
acquisition / loss of citizenship of natural persons
ius sanguinis principle
ius soli principle
problem of the so called genuine link
acquisition of foreign citizenship
expatriation
Nationality of legal persons/entities
- Several connceting points:
- Founding law
- Registration
- Seat
- Control
Diplomatic protection
- 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
Conditions for exercising the right of diplomatic
protection
- 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
Genuine link
*
„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)
Nationality of legal persons
- 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
Exhaustion of local remedies
- 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.
Exhaustion of local remedies - exceptions
- 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
Espousal of claims
- 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.
Calvo doctrine and clauses
- Equal treatment of nationals
- Waiver of diplomatic protection rights by investors?
Territory
- Land surface
- Territorial sea and internal waters
- Airspace
- Earth’s subsurface
- Problem of demarcation
- Uti-possidetis principle
State authority
- Limits of regulatory power under international
law through sufficient proximity - Conflicts of Law
– Private international law
– International criminal law
– International administrative law
International criminal law
- 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
Recognition
- 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
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
“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. […]“
State succession
- 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
Legal Sources
- 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
State Succession Rules
- Basic Positions
– Automatic legal succession
– Clean slate or tabula rasa
– Pick and choose - Differentiation
– Localized or territorial treaties
– Highly personal or political treaties
State immunity
- Par in parem non habet imperium
- Ne impediatur legatio
legal sources
- 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
Principles of immunity
Jurisdiction
– Sovereign act (acta iure imperii)
– Private/commercial act (acta iure gestionis)
– Tortious action
Enforcement
– Intended purpose of the assets
Iure gestionis acts
- “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
Commercial transactions
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.
Personal injuries and damage to property
- 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.
Internationally wrongful acts
- “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.
Internationally wrongful acts
- “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.
Immunity in enforcement proceedings
- “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.
State-like subjects of international law
- Groups of states/state unifications
- Constituent (member) states
- Protectorates
- Mandate and trust territories
- Territories under international administration
Other subjects of international law
- The Holy See
- Sovereign Military Order of Malta
- International Committee of the Red Cross
- NGOs
- TNCs
The Holy See
- 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
Sovereign Military Order of Malta
- 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
International Committee of the Red Cross
- 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
NGOs
- 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.”
TNCs/MNEs
- 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).
