LEARN BY HEART Flashcards
(56 cards)
1
Q
Which are the two provisions of mandatory international law that are not in the law book?
A
- Principle of non-refoulement (Geneva Conventions)
- Core of the international humanitarian law (Geneva conventions)
- Prohibition of Genocide (Convention on the prevention and punishment of the crime of genocide)
2
Q
What is the principle of non-refoulement?
A
a person must not be returned to a country where they face a real risk of
○ Persecution
○ Torture
○ Inhuman or degrading treatment
○ Threats to life or freedom
3
Q
What does the core of the international humanitarian law protect?
A
it protects human life and dignity during armed conflict and limits how wars can be fought. It applies in both international and non-international conflicts
4
Q
What are the 4 different competencies?
A
- Comprehensive
- Fragmentary
- Framework
- Promotion
5
Q
Comprehensive Competency
A
Federation may regulate all matters in a field
6
Q
Fragmentary competency
A
Federation may regulate only specific parts of a subject
7
Q
Framework Competency
A
Federation sets principles, cantons handle details
8
Q
Promotion Competency
A
Federation supports/encourages efforts in areas primarily managed by cantons.
9
Q
Which are the 3 different effects?
A
- Subsequently derogating
- Originally derogating
- Parallelt effect
10
Q
Subsequently derogating
A
Federal law overrides cantonal law once enacted
Cantons have the authority to legislate as long and as far as the federation does not make use of its competency
11
Q
Originally derogating
A
Federal law excludes cantonal action from the beginning (rare)
12
Q
Parallel effect
A
Federal and cantonal laws coexist in certain areas
13
Q
What are the duties of federal supreme court?
A
- Protection of constitutional order
- Guarantee legal unity in the federation
- Interpret the constitution and legal acts
- Provide judicial protection as the court of last resort
14
Q
What are the 4 criteria for the validty of a popular initiative?
A
- Consistency of from
- Consistency of subject matter
- Ius cogens
- Possibility
15
Q
What are the different categories of fundamental rights?
A
- Civil liberties
- Equality before the law
- Social rights
- Procedural rights
- Political Rights
16
Q
Restriction on fundamental rights - What are the criteria for proportionality?
A
- Adequacy
- Necessity (no milder measure)
- Reasonableness (benefit outweighs harm)
17
Q
Restrictions of fundamental rights - Criteria for a legal basis
A
- General (indeterminate numbers of individuals) and abstract (indeterminate number of cases) rule
- Sufficient precision, for people to be able to act in conformity with it and for them to see their legal consequences
- Proper legal form
18
Q
Procedure for Tasks on Restrictions of fundamental rights
A
- Is a Fundamental Right Affected?
a. Is the right guaranteed nationally or internationally?
b. Is its scope affected?
c. Is the claimant a beneficiary
d. Is the respondent the state (or equivalent)?
Interim Conclusion: Fundamental Right is affected
2. Is the Restriction Lawful? (Look at Criteria in lawbook)
19
Q
A Law is part of Swiss customary law if these 3 preconditions are fulfilled
A
1) Evidence of uniform and consistent state practice
2) Opinio iuris
3) A lacuna in the written law
20
Q
What is a lacuna in the written law?
A
A lacuna in the law is a gap — it means there’s no rule written for a specific situation.
21
Q
3 Functions of general principles of law in the international law
A
- As sources of concrete rights/obligations
- As interpretative tools
- As foundations for developing new legal norms
22
Q
3 Phases of concluding a treaty
A
- Negotiation
- National approval
- Binding consent on international level (ratification)
23
Q
2 Different doctrines
A
- Doctrine of incorporation
International law is automatically part of national law unless explicitly excluded
==> automatic inclusion- Doctrine of transformation
International law becomes national law only after deliberate inclusion via domestic legislation
==> deliberate legislative
- Doctrine of transformation
24
Q
2 Conditions for self-executing international provisions
A
- Must regulate rights and duties of the individual
- Must be sufficiently concrete for authoritative adjudication
25
What does self-executing mean?
A self-executing law means it can be used right away in court — without needing any new national law to make it work.
Individuals in national courts can only directly rely on self-executing provisions of international law.
Non-self-executing provisions of international law require further legislation on domestic level in order to be directly applicable.
26
Capacities of subjects of international law
- Make claims before international tribunals
- To be subject to international obligations
- To make valid international agreements
- Enjoy jurisdictional immunities
27
Criteria for statehood (Art. 1 Montevideo convention)
- Permanent population
- Defined territory
- Government
- Capacity to enter relations with other states
28
5 Organs of the UN
- Security council (15 members, 5 permanent and 10 non-permanent members)
- General Assembly
- Secretariat
- ECOSOC (Economic & Social Council)
(54 members elected for 3 years by the General Assembly)
- ICJ (international Court of Justice)
29
Environmental law principles - Procedure
Legal status:
Is it binding or not?
30
Which environmental laws are binding in customary law?
- No-harm principle
- Environmental impact assessment
31
Which environmental laws are not binding?
- Polluter pays
- Precautionary principle
32
Which are the key principles of GATT?
Art 1
Art 3
Art 11
33
What is the principle "of the most favoured nation"?
Most favoured: treat all the same
34
What is the principle of "national treatment"?
National treatment: treat foreign goods the same as national goods
General elimination of quantitative restrictions to trade (Goal of WTO: free trade without a lot of tariffs)
35
Admissibility criteria for ECHR - 4 types of compatibilities must be considered
- Ratione temporis
- Ratione Ioci
- Ratione personae
- Ratione materiae
36
What is "Ratione temporis"
Limited in its jurisdiction to consider state acts which took place after the date of entry of the ECHR in the respective state
37
What is Ratione Ioci
Violation must have taken place within the jurisdiction of the respondent state
38
What is Ratione personae?
Application must be brought against a state which has ratified the ECHR, the applicant must be considered a victim
39
What is ratione materiae
Only rights which are guaranteed by the ECHR can be grounds of complaints
40
Effet utile in light of the interpretation of international treaties (Art. 31 VCLT)
The principle of effet utile is part of / a subprinciple of the teleological method of interpretation, which focuses on the object and purpose of an international treaty. It can be found in Art. 31 VCLT, and means that the interpretation of some treaties is generally inspired by their effective implementation.
41
The difference between the law of neutrality and the policy of neutrality
Law of neutrality: The legal status of a state that adopts a stand of impartiality towards two other states that are at war with each other. Neutral states have certain duties under international law and certain rights. The rights and duties of a legally neutral state are contained in the Hague Conventions of 1907 and customary international law.
Policy of neutrality:
The policy of neutrality is not governed by legal rules. It is a combination of all measures a neutral state takes of its own accord to ensure clarity and credibility of its permanent neutrality. The policy of neutrality may change over time.
42
What is meant with "flexibility of the constitution"? What are two types of constitutions in this sense?
It refers to how hard or easy it is to change the constitution in the formal sense.
Rigid constitutions = Constitutions that are harder to change than ordinary legislation.
Flexible constitutions = Constitutions that are easy to change
43
What is the difference between the constitution in the "formal" sense vs. the "substantive" sense?
The constitution in the formal sense is the official constitutional document. It has the highest legal status and can only be changed by a special procedure. It is defined by its form, not necessarily its content.
The constitution in the substantive sense is about the content of the rules — especially those that protect fundamental rights and express core values, like human dignity and freedom. These rules may or may not be written in the formal constitution.
44
What is the precautionary principle?
"When in doubt, be cautious."
If an action or policy has a suspected risk of causing harm — even if there's no scientific consensus — the burden of proof falls on those proposing the action, not those opposing it.
45
What is the no-harm principle?
A State must prevent, reduce, and control the risk of environmental harm to other States or areas beyond national jurisdiction.
46
What is the principle of environmental impact assessment?
The Environmental Impact Assessment (EIA) principle means that before starting a project that could harm the environment (like building a dam, factory, or highway), governments or companies must first study and predict the possible environmental effects.
This helps them:
Understand the risks,
Find ways to reduce harm,
And decide if the project should go ahead.
In short: EIA is a tool to check how a project might affect the environment before it begins.
47
Definition Case Law
Case law is made up of judicial decisions. In Swiss constitutional law, these are only binding upon the court whose decision has been overruled. Thus, case law is not a formal source of constitutional law.
Case law means the decisions made by courts in past cases.
Judges write down their decisions and explain why they made them.
Later, other judges use those decisions as a guide when deciding similar cases.
48
Three preconditions for a right to self-dense
1. Armed atack
2. Measures of self-defense may only be directed against a state who is responsible for the armed attack, i.e. to whom the latter can be legally attributed
3. Any act of self-defense can only be legal under international law if it observes the conditions of necessity and proportionality.
49
What are the monist and the dualist theory?
The monist theory:
international law and national law are part of the same legal system. When a country signs a treaty, it automatically becomes part of the country's law — no extra steps needed.
The dualist theory:
international law and national law are separate systems. So, even if a country signs a treaty, it must pass a national law first before that treaty has any effect inside the country.
50
3 main agreements administered by the WTO?
- General agreement on Tariffs and Trade (GATT 1994)
- General Agreement on Trade in Services (GATS 1994)
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS 1994)
51
International organizations are considered as subjects of international law if they meet which four requirements?
1. It is an entity established and governed by an international agreement.
2. The agreements is concluded between subjects of international law.
3. The entity aims at fulfilling tasks in the common interest.
4. The entity has its own organs
52
What is a panel's ruling?
A panel ruling is the WTO’s first official decision in a trade conflict between countries.
It can later be appealed to a higher WTO body called the Appellate Body (if it’s working — currently it’s blocked).
53
What can a country do if they do not want to accept the panel's ruling?
Either appeal a panel's ruling. Appeals however may only raise legal questions and not those relating to facts or evidence.
Each appeal is heard by the Apellate Body set up by the Dispute settlement body. The appeal can uphold, modify or reverse the panel's legal findings and conclusions. Appeals should generally not last more than 60 days, with an absolute maximum of 90 days.
The dispute settlement body has to accept or reject the appeals report within 30 days and rejection is only possible by consensus.
Therefore, the country could appeal the panel's decision before the Apellate body.
54
When can the ICC exercise Jurisdiction?
i) state has ratified the Rome Statute
ii) or state accepts the court's jurisdiction ad-hoc
iii) or referral to court by the UN Security Council acting under Chapter VII UN Charter
55
Concept of complementarity with regard to the ICC?
The jurisdiction of the ICC is complementary to the national criminal jurisdiction. This means that the ICC will only exercise its jurisdiction if the concerned state is unwilling or unable to exercise its national criminal jurisdiction.
56
Key principles of International Humanitarian law
1. Principle of proportionality
2. Principle of distinction
3. Prohibition of the use of weapons which uselessly aggrevate suffering.
