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International and European Law - Answers of the tutorials
Reception of International Law into English Law
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2017
International and
European Law
YEAR 2 – COURSE PERIOD 1
EVERYTHING IN BLACK IS THE PPT EVERYTHING IN RED ARE MY NOTES
+
HANDWRITTEN SCHEDULES
+
THE CASES
,Table of Contents
PART. 1: INTERNATIONAL LAW
LECTURE 1. Subjects and resources of international law p. 3-8
LECTURE 2. Jurisdiction, immunities, and Use of Force p. 9-14
LECTURE 3: State Responsibility and International Dispute Settlement p. 15-20
PART 2: EUROPEAN LAW
LECTURE 4: European Law p. 21-27
LECTURE 5: Direct effect, remedies, free movement in general/ goods p. 28-33
LECTURE 6: Free movement in the European Union (internal market) p. 34- 38
EXTRA
How to answer exam question about wrongfulness p. 39
How to answer exam question about remedies p. 40 - 41
Pictures of handwritten schedules p. 42 - 48
Cases p. 49
2
,Lecture 1. Subjects and sources of international law
Subjects
states
International governmental organisations (IGOs)
Individuals
What does being a subject mean?
Having some sort of legal personality this includes:
Having certain rights and obligations under international law
Having the ability to act within the system of international law to claim something
You can have legal personality to the full extend or nothing and everything in between.
There are two types of legal personality:
Objective legal personality this is the LP for states. It’s large and powerful
Qualified legal personality this means that states have recognized that other
institutions also have some sort of legal personality. These institutions only have it
because states allow them to have it.
States
States are the primary subjects of international law and the main creators of the rules of
international law. They have full objective international legal personality.
But what constitutes a State? Look for ‘statehood’ in article 1 of the Montevideo
Convention
a. Permanent Population: permanent basis in the defined territory. Size doesn’t matter
b. A defined Territory: some kind of defined territory
c. Government: it doesn’t say democratic/ independent
d. Capacity to enter into relations with the other states:
But who decides when there is a permanent population? What is a defined territory? And
what is the role of recognition?
What is the role of recognition?
There are two theories about the role of recognition
Declaratory theory: You don’t need recognition. Having a population is enough
Constitutive theory: You need recognition for statehood.
Legally the declaratory theory makes more sense, but practically the constitutive theory.
How is a State created?
When is an entity legally independent?
Who has a right to self-determination?
What if it comes into existence unlawfully e.g. through the use of force?
What about failed States?
3
,IGOs
IGOs were created because there was a need to have a better relation between states, to
solve the issues. There was a need for more and better cooperation
Examples: UN, WHO, WTO
IGOs have some kind of international legal personality, which is necessary to carry out
functions. To what extend legal personality goes depends on the functions of these
organisations.
UN
The most famous IGO is the UN.
193 member states
6 principal organs, o.. the Security Council and the General Assembly
Objective legal personality (Reparation for Injuries Advisory Opinion) The
international Court of Justice gave it’s opinion on this matter. Can UN bring a claim on
the international level? You need some kind of legal personality to bring such a claim.
They gave the opinion that the UN had objective legal personality (the LP which was
reserved for states). Their functions are so special that they need objective LP to carry
them out.
Individuals
States have recognized that individuals also have some sort of legal personality, namely
qualified
Rights: human rights, humanitarian law
Obligations: individual criminal responsibility
Others
NGOs = non-governmental organisations
TCNs = transnational corporations have in principle no legal personality
(Corporations that crosses borders (like Shell) and want to make profit (unlike the
NGO’s)
4
,Sources
Where do we find international law? go to Article 38 (1) ICJ Statue
It doesn’t say “these are the sources” it says “The court shall apply” which means that these
are in fact the sources
Article 38(1) ICJ Statute:
“The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions […]; Various names (treaties, charter, protocols etc), can
bind only the parties to it. States can decide if they want to be bound
b. International custom, as evidence of a general practice accepted as law; It consists in
2 elements: state practice + opinion juris. It binds all states (with rare exceptions)
c. The general principles of law recognized by civilized nations; To fill the gaps, unclear
d. […] judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means […].” Subsidiary sources, writers and lawyers. It
could include national decisions. Publicists are now less important
International conventions
Vienna Convention on the Law of Treaties VCLT (1969, in force 1980) it’s a treaty about
treaties (read the actual articles in Avens) and it’s largely reflected on customary law. The rules
in the VCLT apply, unless the specific treaty itself determines otherwise.
What is a treaty? An agreement between States a definition is in Article 2(1)(a) VCLT: “an
international agreement concluded between States in written form and governed by
international law”. The rules only apply when you talk about agreements between States
How are treaties concluded?
How are the created? Who can conclude a treaty?
You need to have full powers (art. 7) like the Head of State/Government or Minister of FA.
Thus a person who has full powers on behave of a state who wants to apply to a treaty
How does this person express consent to be bound? (art. 11) signature, ratification,
accession
Common procedure (thus not the only one)
1. Signature: big conferences where the world leaders come together. At the end there
is a text for a treaty. This text is signed by someone with full powers
2. Ratification: At this point the NL is not fully bound yet. Between signature and
ratification: you need to get your national laws in order so you are following the treaty.
With ratification is the formal act that then bound the state.
3. The treaty needs to be enter into force: can be straight after ratification of the
parliament or after certain number of ratifications.
Accession is a same step as ratification. A formal act (parliament expresses the approval). The
difference is the common procedure. With accession it means the party hasn’t signed the
treaty.
5
, Invalidity of treaties
Treaty can be invalid for a particular state if e.g. there were no full powers (example:
Rutte sends his mother to sign, she has no full powers)
Treaty can be void (and completely disappear). No one is bound to this treaty anymore.
It happens for example when it conflicts with a norm of jus cogens
Changing a treaty
You can amend the original text. This is very difficult and time consuming since every
state needs to agree with the text of the treaty again
Modifying the text for some State parties. Some States agree. The problem Is that you
will have different obligations between different state parties
Adopting optional/ additional protocol (this is the easiest). The original text doesn’t
change, but there might be a smaller group of State parties who want a change.
Terminating a treaty
The treaty can also be terminated at a certain point of time. How?
By consent of the parties the can agree to terminate a treaty
after a certain period of time it automatically terminates when a treaty says “after
50 year this treaty terminates…”
material breach (art. 60): violation of a provision essential to the accomplishment of
the object and purpose of the treaty
Fundamental change of circumstances (art.62): must have been unforeseen,
circumstances at time of treaty’s conclusion must have constituted an essential basis
of consent of the parties.
Reservation to treaties
Definition in art. 2 (1)(d):
“a unilateral statement, however phrased or named, made by a State, when signing, ratifying
[…] a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions
of the treaty in their application to that State”
“A unilateral statement” the state itself makes the statement towards other states
“However phrased or named” You can get away by naming it a declaration instead
of reservation. It doesn’t matter how you call it. Only when the state commits itself by
the treaty then you can make it. You can say “This particular article doesn’t apply to
me”
Example The Netherlands on article 20(1)of the International Covenant on Civil and Political
rights “The kingdom of the Netherlands does not accept the obligation set out in this provision
in the case of the Netherlands”
Details about reservations are included in VCLT arts. 19-21
It is only possible when becoming a party to the treaty. At that point of time, otherwise it’s
too late.
6
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