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IO + HR > IO + HR > Flashcards

IO + HR Flashcards

1
Q

Legal personality under international law theory: Subjective theory/will theory

A

The will of the founder governs the issue. If legal personality -> should be in treaty

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2
Q

Legal personality under international law theory: Objective theory

A

State pattern -> an entity that exist as a matter of law has legal personality. Requirements met -> legal personality

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3
Q

Legal personality under international law theory: Reality theory

A

IO act as if they have legal personality -> assume that they do. Legal powers = legal personality

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4
Q

Where do IOs powers come from: Treaty interpretation theory

A

IOs powers are purely an issue of treaty interpretation. Powers deduced from the treaty. No room for development

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5
Q

Where do IOs powers come from: Attributed or conferred theory

A

Negative assumption: everything not clearly stated in treaty is does not exist in the IO including powers. No room for development

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6
Q

Where do IOs powers come from: Implied powers - strict version

A

1) Treaty rules must be interpreted to guarantee their “effet utile”: guarantee fullest effect

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7
Q

Where do IOs powers come from: Implied powers - wider version

A

Not only powers from the treaty, but powers necessary for the IO to exercise its functions

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8
Q

Inherent powers doctrine

A

Every time an IO exists it must possess certain powers. As long as a power is not prohibited in treaty, it should be valid

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9
Q

From what parameters do we classify IOs?

A

Functions (economic, peace etc.), membership (universal, regional, ratione materiae), political/technical, intergovernmental/supranational

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10
Q

What are the typical regular internal structures of IOs

A

Plenary body, executive body and administrative body

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11
Q

What is a judicial body of an IO?

A

A court, fx. ICJ (advisory opinions)

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12
Q

What is the hierarchy between legal regimes?

A
  1. Jus cogens (peremptory norms), 2. UN charter, 3. EU law (1. treaties, 2. regulations, decisions, opinions, recommendations)
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13
Q

Law-making instruments: law making acts

A

Lay down rules of general and abstract nature (EU as best example). Binding.

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14
Q

Law-making instruments: Administrative acts

A

Apply the law, judgements: no new rules

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15
Q

Law-making instruments: Acts regarding internal matters

A

Household: budget approval, budget apportioning, appoint and election of high officials (secretary general), admission of new members

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16
Q

Soft law (Law-making instruments): Authoritative interpretation

A

fx. GA specifies HR -> no one can say they don’t know HR. Critique: not stated specifically in Charter. Unclear position for MS who voted against

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17
Q

Soft law (Law-making instruments): Interactions w/ customary international law

A

A resolution made by the GA as customary international law -> provides evidence, precedent. Critique: MS who voted against

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18
Q

Soft law (Law-making instruments): Agreements in simplified form

A

Soft law turn into agreements. Critique: no more soft law

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19
Q

Soft law (Law-making instruments): Estoppel

A

MS must consider good faith, but good faith not does not turn resolution into law

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20
Q

Soft law (Law-making instruments): Procedural obligation

A

Taking into account approach (MS should consider resolution in good faith. If not comply -> explain why)

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21
Q

Theories of law-making: Treaty analogy

A

Present + consent. Railway traffic btwn Lithuania + Poland

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22
Q

Theories of law-making: Delegation of powers doctrine

A

MS give consent once and forever when they enter the IO.

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23
Q

Theories of law-making: Theory of international legislation

A

There is a claim to govern a matter -> IO should act and legislate. Few cases

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24
Q

Adoption of conventions within IOs: Opting-in procedure

A

Regular. Sign+ratify it -> binding

25
Q

Adoption of conventions within IOs: Opting-out procedure

A

Majority adoption -> option to notify and opt out within timeframe

26
Q

Adoption of conventions within IOs: Opting-out w/ provisional application of treaty

A

Majority adoption -> option to notify and opt out within timeframe. Speed up via immediate activitation. Free to opt out

27
Q

Adoption of conventions within IOs: Opting-in procedure w/ pressure mechanisms

A

Time limit for ratify or not. If not -> provide reason

28
Q

Who has authority to review validity of legal acts?

A

International courts. CJEU has jurisdiction to review if compliance with ius cogens/legal regimes of national measures. Not domestic courts (only check if comply with jus cogens).

29
Q

Legal consequences of invalidity: Ex tunc

A

Invalid act -> considered never legally effective

30
Q

Legal consequences of invalidity: Ex nunc

A

Invalid act, but parties who relied on it should be protected. No retroactive effect

31
Q

Legal consequences of invalidity: Separability

A

Only part of the act is considered invalid -> remainder of act is valid

32
Q

Legal consequences of invalidity: Stabilization of an illegal act

A

Ultra vires act, but no one objects -> likely the decision will stand

33
Q

Who is immune in the UN system?

A

The organization itself, representatives of the UNs MS, UN Officials and Experts on missions

34
Q

Name some important things in the UN HQ agreements with the US

A

HQ district shall be under control of UN, HQ district is inviolable, military and police can only enter with the consent by the Secretary-General, HQ shall prevent becoming a refuge from persons escaping arrest

35
Q

Immunities in EU law

A

Privileges and immunities of the EU applies to the EU and its officials, representatives of MS, members of the EP, judges of the CJEU. Third countries accredited to the EU enjoy accorded privileges and immunities by the EU’s host state

36
Q

When does a treaty rule reflect a rule of customary international law?

A

Codified, crystallization, generating.

37
Q

Immunities: The domestic level

A
  1. Full incorporation of an int org into the domestic legal order. Single act/law regulating each international organization. 2. General law regulating privileges and immunities + executive decrees, no specific international org
38
Q

What was the historic idea of actions (responsibilities) of IOs?

A

In history there was an idea that the actions of IOs could only affect the MS -> but then Tin Council (80es) went bankrupt and left many creditors unpaid. Assumption dismissed.

39
Q

Name the three preliminary issues and theoretical challenges when it comes to assigning responsibility to an entity.

A
  1. There has to be an legal agent (responsible in court).
  2. Involved in the relevant conduct (link between actor and conduct. Ex. NATO or MS?)
  3. Superior/subordinate relationship (provides instructions and just enforce it? NATO soldiers responsible or just following orders?)
40
Q

The Law governing the responsibility of IOs

A

At the treaty law level, the constitutive instruments of IOs. Two exceptions: Orgs in the financial field (you don’t enter into agreements about finance if there is not a clear realm of responsibility) and Orgs carrying out activities in outer space (bc they are dangerous)

41
Q

Critique of ARIO

A

State analogy (states and orgs are different entities), One size (do not) fit all, not so much practice available

42
Q

What is the definition of dual attribution

A

When an IO and a state are responsible for the same wrongdoing the responsibility of the state and the IO may be invoked separately.

43
Q

Dual attribution case laws: explain Behrami, Srebrenica and Macedonia vs. Greece

A
  1. Behrami. No dual attribution. Tried to bring Norway, France and Germany before the court, but was deemed inadmissible bc countries were acting as UN agtents.
  2. Srebreinca. Dual attribution. UN and the Netherlands were treated differently UN=immunity, the Netherlands District Court of the Hauge: N partly responsible
  3. Former Yugoslav Republic of Macedonia vs. Greece. Dual attribution. Greece prevented YRoM to enter NATO. Greece said that they were acting as NATO MS and therefore not attributable to Greece. Court said no and applied dual attribution.
44
Q

What can legal consequences of an internationally wrongful act be for IOs?

A

a. Restitution. We establish the situation which was before the wrongful act was committed. Two requirements
1. Materially possible
2. Proportionate. Restitution should not involve a burden disproportionate from the benefit.

b. Compensation: Payment due to the damage caused.

c. Satisfaction: Symbolic value. Acknowledgement of breach. Regret, apology or a finding in a tribunal.

45
Q

What is the paradox in the protection of HR?

A

Everything is based on consent. IOs often made to ensure that HR are not breached, but who ensures that IOs do not breach HR? Paradox: immunity + the position of IOs + the lack of jurisdiction = paradox.

Behrami case: UN in Kosovo administration of territory by an IO = a case where HR were breached but no dual attribution = UN have immunity.

46
Q

Explain the difference between UN and CoE when it comes to the strength of the organization in regards to HR

A

Difference: number of states.

UN: negotiate with many states. Difficult to find strong consensus. Heterogeneous. Wide constellation but not very deep. No courts, just committees. Observation + views. Possible to be in UN but not HR conventions.

CoE: easier to find strong consensus push mechanism to stronger procedures. Binding court. If you want to be a part of the CoE you have to ratify the HR conventions. In general = regional systems are stronger.

47
Q

Statute based: explain the concept of suspension and expulsion in the UN and the CoE

A

UN: expulsion possible (no practical example. South Africa was brought for expulsion, but veto -> never brought before the GA)

CoE: suspension and expulsion possible. Russia has been expulsed. 6 m rule after expulsion: still watched by the court. Gives states a chance for correct mistakes and join again. Paradox: states that violate HR and get expulsed are no longer watched by the court.
EX: Russia expulsed in March 2022. Effective exit in Sep 2022.
Ratione tempris: if a violation took place while Russia was part of the convention then they can be brought before the court (if local remedies are exhausted)

48
Q

Explain the mechanisms of protection of HR of the Human Rights Council

A

-Universal periodic review
Cycle of rounds where HRC analyses the situation of HR in each MS. States make reports maybe problem. Result: recommendations.

-Special procedures
Focus on one MS. Very specific topic focus on either specific country situation or thematic issue in different countries. Result: repots. Nothing binding (not much in the international system is when the recommendation, report, advisory opinion is published, the ‘punishment’ is that everyone knows (publishment consent based)

-Complaint procedure
Possible for individuals to bring cases before the court, but HRC do not take each up, just collects them. If many complaints/cases deal with one topic/country, they take it up. NO DECISIONS ON INDIVIDUAL CASES

49
Q

UN: Explain the mechanisms of protection of HR of the Human Rights Council

A

HRC: state representatives
-Universal periodic review
Cycle of rounds where HRC analyses the situation of HR in each MS. States make reports maybe problem. Result: recommendations.

-Special procedures
Focus on one MS. Very specific topic focus on either specific country situation or thematic issue in different countries. Result: repots. Nothing binding (not much in the international system is when the recommendation, report, advisory opinion is published, the ‘punishment’ is that everyone knows (publishment consent based)

-Complaint procedure
Possible for individuals to bring cases before the court, but HRC do not take each up, just collects them. If many complaints/cases deal with one topic/country, they take it up. NO DECISIONS ON INDIVIDUAL CASES

50
Q

UN: Explain the System of committees and the mechanisms of protection

A

Independent experts (not political like HR Council). Monitor implementation of HR core treaties. Based on state reporting the state tells the committee what it is doing to align the state with the recommendations.

-Reports
Each MS address the to the committee, cycle depends on the convention. Nothing happens after report

-Inquiries (undersøgelse, ask questions, investigate)
Few conventions include this power, not very used. Report following inquiry is not published.

-Inter-state communications
One state reports about another state

-Individual communications
An individual victim puts a case before the committee. Different conditions to bring a claim, most important is the exhaustion of local remedies. Practical reason: too many complaints if this was not the case. Theoretical reason: give the state the option to take international responsibility.

51
Q

UN: What is the specific level tied to the convention prohibiting torture?

A

Systems of visits: To check and keep MS aligned with the provision of torture. They come and look and interview report. Part of the flexible approach: optional protocol

52
Q

What is the role of the Committee of Ministers?

A

Creation of HR conventions: in CoE it’s like UN –> organs have power to create specific treaties in the name of HR protection. The is in the rules of the statute: give legal basis to draft treaties.

Committee of Ministers –> create organ which is enabled to work and negotiate on draft conventions that fall within the general aim of the CoE –> protection of HR.

53
Q

What is the possible sanction by the Parliamentary Assembly in the CoE?

A

Monitoring procedure
Soft procedure: If serious HR breach MS can have their place in PA suspended (not entire CoE)

54
Q

Explain the five treaty based mechanisms of protection of HR in the CoE

A

-Systems of visits
Similar to the UN: Convention against torture. European convention against torture. They come and look and interview report.

-Committees
No binding procedure, follow up mechanisms (weak).

-Courts
European Convention of Human Rights. If part of the convention you have to accept what it says, accept the jurisdiction. CoE has less flexibility than the UN because there is the top level of control court. Possible to reach because of the homogeneity of the organization.

  1. Inter-state applications: state put another state for the court if there is breach of the convention. Only states that are in the convention can be brought before the court (Australia cannot).
  2. Individual applications: from any person, NGO or group of individuals. Domestic remedies must have been exhausted + many other requirements. Court has binding force

-Traditional mechanisms of settlement of international disputes:
fewer mechanisms, not much practice

-Soft monitoring body
Monitors that procedure of democracy takes place in accordance with aggrement

55
Q

What is Customary Law based on

A

Based on state pratice (objective) and opinio juris (subjective)

56
Q

Define Jus Cogens

A

Certain fundamental, overriding principles of international law

57
Q

Explain the role of the ICJ

A

The Court’s role is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

58
Q

Explain the role of the ECHR

A

It examines complaints (known as ‘applications’) alleging violations of human rights. These applications can be made by individuals, or sometimes by Member States.

When the Court finds that a Member State has violated one or more of the Convention’s rights and guarantees, it explains why in a written judgment. Judgments are binding; the countries concerned must comply with them.

IO + HR (1 decks)

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