Week 4 - Scope of legal authority lecture

Question 1

Where can the objects to reservations be found?:

Answer 1

Effects and procedure of objection and reservation, article 20 & 21 VCLT

Question 2

Notes

Answer 2

The reserving states set the tone of the agreement. Why would you still continue? Treaties contain a number of articles, and they would still be bound to treaty even if they reserve. It is better for them to still be bound to other parts of the treaty.

• They can withdraw reservations at a later state.

Question 3

Belilos case, loizidou v. Turkey (ECtHR)

Answer 3

As long as it aims to change or modify a treaty, it is still a reservation. Thus can have a different name.

Question 4

Can you withdraw from a treaty?

Answer 4

Article 56 VCLT.

• If treaty entails a clause that you can, then yes. Example Brexit. A treaty that does not contain any provision means that you cannot withdraw unless parties allow denaunciation or nature of treaty implies that it is possible. NEED to prove either A or B.

Other cases:

> Emergency of new rule of jus cogens (art. 64 VCLT)
Impossibility of performance (ARt. 61 VCLT)
Material breach (Article. 60 VCLT)
Rebus sic stantibus (fundamental change of circumstances) (art. 62 VCLT)

When was it invoked? Material breach:
Air services arbitration
Namibia Advisory Opinion
Croatia vs. Slovenia

What is important under material breach: Which provision was violated and how important was the provision, rather than focus on violation

Fundamental change of circumstances:
Conditions for application:

Circumstances:
- Existing at time of the conclusion of the treaty
- Whose existence was an essential basis for the consent…

Applied: Fisheries Jurisdiction
Gabeikovo-nagymaros case
Racke v Hauptzollamt Mainz (ECJ 1998)

Question 5

Jurisdiction of states

Answer 5

Types of jurisdiction:

Prescriptive: The legislature creates
Enforcement
Adjudicative

Other bases of jurisdiction:

• Nationality principle:
  > Active nationality principle: Nationality of perpertrator
  > Passive nationality principle:
• The protective principle: If it effects the general interests of a state
• The universality principle: When there are great crimes committed such as genocide, all states have jurisdiction.
• crimes where no one else would have jurisdiction like piracy.

Question 6

What is the difference between subjective and objective territorial principle?

Answer 6

Subjective territorial principle is

Question 7

What are the two strands of the universality principle

Question 8

In enforcement jurisdiction can the consent of the state be given ex post facto?

Answer 8

Yes, but the rule is very specific.

Question 9

State immunity notes:

Answer 9

You cannot bring another state into your own court, as all states are equal and sovereign.

Question 10

What is the difference between absolute vs State immunity?

Question 11

What are governmental acts (acta jure imperii)

Question 12

What is relative immunity:

Answer 12

• governmental acts (acta jure imperii)
• Commercial acts (acta jure gestionis)

Test: the purpose and nature of the act –> Tendrex v central bank of nigeria or empire of iran case

Question 13

Question 1: What about bank account of embassies?

Question 14

Question 2: What about buildings that are being claimed as premises of a diplomatic mission?

Answer 14

Yes, diplomatic premisses have immunity, but only if you followed proper procedure.

Question 15

Case: Immunities and criminal proceedings (Equatorial Guinea vs. France)

Question 16

Case: Jurisdictional immunities (Germany vs Italy)

Answer 16

you cannot invoke state immunity for jus cogens law

Court ruled no such conflict exists. Immunity applies at beginning, jus cogens is substantive in nature….