STUDY GUIDE

INTERNATIONAL LAW

QUESTIONNARE

1. Name and explain the sources of International Law. Where are they listed?
The sources of International Law are listed in Article 38 of the Statute of the International Court of Justice
(annexed to the UN Charter).
 International conventions  establish rules expressly recognized by the contracting states.
 International custom  as evidence of a general practice accepted as law.
 General principles law recognized by civilized nations.
 Judicial decisions and the teachings of the most highly qualified publicists of the nations  as
subsidiary means for the determination of rules of law.

2. What is domestic law?

Domestic law is the law that applies within a state. It is also called national, internal or municipal law.

3. Explain the relationship between International Law and domestic law. Explain this relationship in UK and
US.
Most judgments on issues of international law are made by domestic courts. Much of international law is
intended to reach deep into the internal legal order of states and thus operate in domestic law. For
example, many treaties have to be implemented in domestic law in order to be effective. International law
does not allow a state to invoke its domestic law to justify its failure to perform a treaty.
The way in which customary international law is applied by domestic courts is dependent on the
constitution and law of each state. Most treat customary international law as part of domestic law, but
some constitutions provide that customary international law is supreme law. In the latter case, if there is a
conflict between customary international law and (i) the constitution, the constitution prevails (US), or (ii)
the legislation, the legislation prevails (UK and most Commonwealth states).

4. Name the subjects of International Law. Explain briefly.

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The subjects of international law are the persons or entities to which international law applies. However,
natural persons (individuals) and legal persons (like corporations) are considered objects of international
law, since their rights and obligations can only be enforce and perform through action by states.
 The subjects of international law are entities capable of possessing international rights and duties. They
fall within the following categories:
 States: must have territory, population, sovereignty and a political-legal structure.
 Non-state actors: international organisations, NGOs (non-governmental organisations), NSAGs (non-
state armed groups), advocacy groups (such as the G8) and individuals.

5. Name and explain the criteria for statehood.

The criteria for statehood is that the entity has to demonstrate that it has (i) a permanent population  a
settled population; (ii) a defined territory  no matter its size or if it is a wealthy or poor country; nor do
the land or maritime boundaries have to be defined definitively; (iii) a government  there must be a
central government operating as a political body within the law of the land and in effective control of the
territory; and (iv) the capacity to enter into relations with other states  the entity must have
interdependence in external relations; the government must be sovereign and independent.

In addition, the entity must be accorded recognition by a sufficient number of states, otherwise it cannot
claim to be a state with all the corresponding rights and obligations. There are two competing theories on
recognition of states: (i) declaratory theory  recognition is a formal acceptance of the existing facts; and
(ii) constitutive theory  the act of recognition creates a new sate as an international legal person.

6. What is a treaty? What is a MOU?

A treaty is an international agreement concluded between two (bilateral treaty) or more (multilateral
treaty) states in written form and governed by international law, whether embodied in a single instrument
or in two or more related instruments. There must be an intention to create obligations under international
law, and such intention must be gathered from the terms of the instrument itself and from the
circumstances of its conclusion. A plurilateral treaty is one made between a limited number of states with a
particular interest in the subject matter. Treaties may be regional, intergovernmental, inter-ministerial or
administrative. International instruments are not designated systematically, and therefore the name does
not determine its legal statues. What is decisive is whether the negotiating states intend the instrument to

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be or not to be legally binding. A treaty does not have to be signed, it can be constituted by an exchange of
third-person diplomatic notes which are initialled but not signed.

A memorandum of understanding is an international instrument of a less formal kind. It is typically in the

form of a single instrument and does not require ratification. Memoranda of understanding are entered into
either by States or International Organizations. The United Nations usually concludes memoranda of
understanding with Member States in order to organize its peacekeeping operations or to arrange UN
Conferences, and also on cooperation with other international organizations. In US practice, use of non-
treaty language does not necessarily preclude the instrument from being a treaty. MOUs are employed in
most areas of international relations (diplomatic, defense, trade, aid, transport). A common reason for
preferring a MOU is confidentiality. MOUs do not need elaborate final clauses or the formalities which
surround treaty-making and, therefore, are much easier to amend.

7. How does a treaty enter into force?

Every state possesses the capacity to conclude treaties. A treaty entered into by a government or ministry
binds the state, and changes of government will not affect its binding force on the state.

Federal constitutions vary as to whether their constituent units have the power to enter into treaties.
Overseas territories do not have the power to conclude treaties in their own right, but they may be
authorised by the state to which they belong to enter into treaties either ad hoc or generally in certain
specific subject areas. International organisations have the capacity to conclude treaties if this is provided
for in its constituent instrument or if it is indispensable for the fulfilment of its purposes.

 Step 1 - Credentials: Credentials are issued by a state to a delegate to an international conference at

which a multilateral treaty is to be negotiated, authorising them to represent that state; the credentials
are set out in a formal document and are then presented to the host government or international
organisation. The representative only has the authority to negotiate and adopt the text of the treaty and
to sign the final act, they will need specific instructions from their government before they can sign a
treaty itself and full powers if these are required. A state may issue its permanent representative to an
international organisation with continuing full powers, known as “general full powers”.
 Step 2 - Negotiation: Negotiation stage.

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 Step 3 - Adoption: Once the negotiations are complete, it is necessary for the negotiating states to adopt
the text. A bilateral treaty is often adopted by initialling the text. The act of adoption does not amount to
consent to be bound by the treaty. In practice, consensus or “general agreement” is now the norm for
adoption of most multilateral treaties.
 Step 4 - Authentication: Before a negotiating state can decide whether to consent to be bound by a
treaty it needs to have the adopted text, once it has been thoroughly checked and cleaned up,
authenticated by a document certifying that it is the definitive and authentic text, and therefore is not
susceptible to alteration.
 Step 5 - Consensus: Consensus is not the same as unanimity, a state can join a consensus even if it could
not vote in favour. It is the absence of any formal objection.
 Step 6 - Final act: A final act is a formal statement or summary of the proceedings of a diplomatic
conference. Treaties adopted by the conference and other related documents will be attached. Usually,
each negotiating state signs the final act, although it is optional. Full powers are not needed to sign a
final act, the credentials of the representative being enough.

8. Explain the relationship between treaties and domestic law in UK and USA.
States contract with each other under domestic law if, for example, the subject matter is exclusively
commercial, such as the purchase of commodities in bulk. If a state leases land from another state for an
embassy, there will be an instrument under domestic law, even though this may be granted pursuant to a
treaty.

9. What is a diplomatic mission? What are its functions?

A diplomatic mission is a group of people from one state or an international inter-governmental
organisation (such as the United Nations) present in another state to represent the sending state officially in
the receiving state. The members of a diplomatic mission are the head of the mission, the diplomatic staff,
the administrative and technical staff (A&T staff) and the service staff.

The main functions of a diplomatic mission are: (i) representing the sending state, protecting its interests
and those of its nationals; (ii) negotiating with the receiving state; (iii) reporting what goes on in the
receiving state; and (iv) promoting friendly relations which includes providing the local population with
information about the sending state.

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10. Explain diplomatic privileges and immunities.

Ministers, diplomats and other officials attending meetings of an international organisation enjoy certain
immunities and privileges in order to ensure that they are free from interference in carrying out their
duties. Generally, the organisation, its staff and representatives will be immune (to varying degrees) from
legal proceedings unless the organisation waives immunity. A diplomatic agent is wholly immune from the
criminal jurisdiction of the receiving state. This immunity is necessarily linked to the inviolability of this
person.

11. Explain consular privileges and immunities.

Pursuant to the Vienna Convention on Consular Relations, the receiving State shall treat consular officers
with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or
dignity. The consular privileges and immunities established in the Convention are as follows:

Personal inviolability of consular officers

 Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave
crime and pursuant to a decision by the competent judicial authority.
 Except in the aforementioned case, consular officers shall not be committed to prison or liable to any
other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
 If criminal proceedings are instituted against a consular officer, he must appear before the competent
authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of
his official position and, except in the case specified ut supra, in a manner which will hamper the
exercise of consular functions as little as possible. When it has become necessary to detain a consular
officer, the proceedings against him shall be instituted with the minimum of delay.

Notification of arrest, detention or prosecution

In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal
proceedings being instituted against him, the receiving State shall promptly notify the head of the consular
post. Should the latter be himself the object of any such measure, the receiving State shall notify the
sending State through the diplomatic channel.

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Immunity from jurisdiction

 Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of acts performed in the exercise of consular
functions.
 The provisions of the previous paragraph shall not, however, apply in respect of a civil action either: (a)
arising out of a contract concluded by a consular officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising
from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Liability to give evidence

 Members of a consular post may be called upon to attend as witnesses in the course of judicial or
administrative proceedings. A consular employee or a member of the service staff shall not decline to
give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be
applied to him.
 The authority requiring the evidence of a consular officer shall avoid interference with the performance
of his functions. It may, when possible, take such evidence at his residence or at the consular post or
accept a statement from him in writing.
 Members of a consular post are under no obligation to give evidence concerning matters connected with
the exercise of their functions or to produce official correspondence and documents relating thereto.
They are also entitled to decline to give evidence as expert witnesses with regard to the law of the
sending State.

Waiver of privileges and immunities

 The waiver shall in all cases be express and shall be communicated to the receiving State in writing.
 The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not
be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial
decision; in respect of such measures, a separate waiver shall be necessary.

12. Explain nationality and citizenship.

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The possession by a natural person or a legal person of the nationality of a state provides them with a link
to that state for the purposes of international law. The state has the right to protect its nationals against
other states in international law. In cases of states of the new nationality of the person, the state may not
be entitled to make an international claim on the person’s behalf unless it can establish that at a relevant
time the person had a “genuine connection” with it. A dual national is a person who has the nationality of
two or more states. When a dual national is in one of his states of nationality, he cannot usually seek the
protection of the other/s, although the latter may male representations.

The term citizenship denotes entitlement, under the law of a state, to full civil and political rights, and
citizenship and nationality normally coincide.

13. Explain nationality of legal persons, ships and aircrafts.

A corporation has the nationality of the state in which it was incorporated or in which it has its registered
office or head office. These days many companies are incorporated in one state where the registered office
is, but have their headquarters in another state. An international tribunal may therefore look behind the
legal veil or facade of incorporation to determine in which state the control and ownership of the
corporation really lies. The state with which the company has a close, substantial and effective connection,
may then be treated as the state of nationality. Foreign branches of a company will usually have the same
nationality as the company, unless the company incorporates subsidiary companies under the law of
another state. A multinational company can pose further problems since it may be incorporated in one
state, have its headquarters in another, and do most of its business in other states.

A ship has the nationality of the state whose flag it is entitled to fly irrespective of the nationality of the
person/s or company that owns it. The flag can be readily changed. The flag state is important for the
purposes of jurisdiction over the ship, especially on the high seas. An aircraft has the nationality of the state
in which it is registered, but this can also be changed. In both cases, nationality for the purpose of
international claims may have to be made in respect of the beneficial owner of the ship or aircraft.

14. Which are the basic characteristics of international organisations?

 International organisations are established by treaty (constituent treaty), although there are some
exceptions.

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 Membership is limited exclusively or primarily to states, what is reflected in the alternative generic term
“intergovernmental organization”. Many organisations allow non-member states and some non-state
entities to be observers without the right to vote.
 The international legal personality of international organisations is separated from the members.
 International organisations are financed by the members.
 There are permanent secretariats.
 International organisations usually have 3 main organs: an assembly, an executive body, and a
secretariat, which need to be carefully distinguished from the organization itself and its members.

15. What is international legal personality?

International legal personality refers to entities endowed with rights and obligations under public
international law. An international organisation has legal personality separate from its members, what
makes the organisation a subject of international law with rights and duties under it. The international
organisation can enter into treaties with other subjects of international law. Its constituent treaty may
provide that it shall have international legal personality; otherwise this may be inferred from its purpose,
the powers given to it by its members and its practice.

16. United Nations. Name its principal organs, explain its functions.
Membership of the United Nations is open only to states, and there are currently 193 members. The United
Nations has 6 principal organs:
 The General Assembly: it is the main deliberative, policymaking and representative organ of the UN. All
193 Member States of the UN are represented in the General Assembly, making it the only UN body with
universal representation. Each year in September, the full UN membership meets in the General
Assembly Hall in New York for the annual General Assembly session and general debate. Each Member
State has one vote. Decisions on important questions, such as those on peace and security, are taken by
a two-thirds majority of those members present and voting. All other matters are decided by a simple
majority of those voting. It is essentially a debating chamber that can discuss any matter, although it
should not discuss a matter of international peace and security while the Security Council is actively
seised of it. Except for decisions on internal issues, its resolutions are no more than recommendations.
Each year, the General Assembly elects a GA President to serve a one-year term of office.

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 The Security Council: it has 15 members, 5 being permanent (the “P5”): China, Russia, France, UK and
US. The 10 non-permanent members serve for 2 years, 5 being elected each year by the General
Assembly and cannot serve consecutive terms. The composition of the non-permanent membership is
informally distributed on regional lines. Most Council resolutions are adopted by unanimity or without
vote. Each member of the Council has one vote, but procedural matters are decided by the affirmative
vote of 9 or more of the members; no veto can be cast. Decisions on all other matters are also made by
the affirmative vote of 9 or more members, provided no permanent member has cast a negative vote
(veto).
Apart from the Secretary-General, some of his officials and the interpreters, no one else is allowed in the
room without the agreement of the members. Lack of an official record of the informal consultations
makes it difficult sometimes to interpret the terms of a resolution. There are constant meetings of
certain groups of Council members.
The Security Council has the primary responsibility for the maintenance of international peace and
security and has the power to impose legally binding measures on all UN members. Most Council
resolutions contain only exhortations or recommendations.
 The International Court of Justice: it is the principal judicial organ of the United Nations. Its seat is at the
Peace Palace in The Hague; it is the only one of the six principal organs of the United Nations not located
in New York. The Court is composed of 15 judges for a 9-year, renewable term. These judges appoint the
President and Vice-President of the Court, who are elected every 3 years. If there is a tie in voting, the
vote of the President is worth double. The Court’s role is to settle, in accordance with international law,
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.
 The Economic and Social Council (ECOSOC): it is the principal body for coordination, policy review, policy
dialogue and recommendations on economic, social and environmental issues, as well as
implementation of internationally agreed development goals. It serves as the central mechanism for
activities of the UN system and its specialized agencies in the economic, social and environmental fields,
supervising subsidiary and expert bodies. It has 54 Members, elected by the General Assembly for
overlapping three-year terms.
 The Trusteeship Council (now defunct): it was established in 1945 by the UN Charter, under Chapter XIII,
to provide international supervision for 11 Trust Territories that had been placed under the
administration of 7 Member States, and ensure that adequate steps were taken to prepare the

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Territories for self-government and independence. By 1994, all Trust Territories had attained self-
government or independence. The Trusteeship Council suspended operation on 1 November 1994, and
amended its rules of procedure to drop the obligation to meet annually and agreed to meet as occasion
required.
 The Secretariat: it comprises the Secretary-General and tens of thousands of international UN staff
members who carry out the day-to-day work of the UN as mandated by the General Assembly and the
Organization's other principal organs. The Secretary-General is chief administrative officer of the
Organization, appointed by the General Assembly on the recommendation of the Security Council for a
five-year, renewable term. UN staff members are recruited internationally and locally, and work in duty
stations and on peacekeeping missions all around the world.

17. What is extradition?

Extradition or rendition is the procedure by which a person accused or convicted of a crime is formally
transferred to a state where he is wanted for trial or to serve his sentence. In the absence of a treaty, a state
has no obligation to extradite; but extradition can take place without a treaty if this is acceptable to both
states and permissible under their laws. The request for extradition is normally made formally through the
diplomatic channel, accompanied by the arrest warrant, information about the identity of the accused, and
the basic facts of the offence. In most states, the request will be scrutinised by the courts where the
accused can challenge it. Usually, the final decision will be taken by the executive, to which the domestic
law will usually give discretion to refuse the request, subject only to treaty obligations.

18. Name and explain international crimes.

The term “international crimes” makes reference to those crimes that are of concern to every state because
of their corrosive effect on international society or their particularly appalling /əˈpɔːlɪŋ/ nature. For such
crimes, international law places criminal responsibility on the individual who committed the crime,
although the state on whose behalf the crime may have been done may incur international responsibility. It
is likely that that international law allows a state to prosecute such crimes regardless of where they were
committed or the nationality of the accused (universal jurisdiction). Whether an international crime can be
prosecuted in the domestic courts of a state depends on the laws of that state. The term is also used to
describe crimes covered by international treaties (terrorist crimes, drug offences) which impose obligations
on states parties to criminalise the activities concerned and to prosecute or extradite suspected offenders.

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 Piracy: is any illegal act of violence or detention committed on the high seas for private ends by a private
ship against another ship.
 Slavery: is the exercise of any or all of the powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of trafficking in persons, in particular women and
children. Although there have been various treaties seeking to combat slavery, and it is now accepted
that slavery is prohibited by customary international law, it is still not clear if slavery is subject to
universal jurisdiction.
 Genocide: is any of the following acts committed with intent to destroy, in whole or in part, a national,
ethical, racial or religious group, as such: (i) killing members of the group; (ii) causing serious bodily or
mental harm to members of the group; (iii) deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; (iv) imposing measures intended to
prevent births within the group; and (v) forcibly transferring children of the group to another group.
 Crimes against humanity: include grave offences against life and liberty on an extensive scale, even if
they are lawful under national law. These crimes may be seen as a collective violations of basic human
rights, rather than those of an individual. They include murder, extermination, enslavement, deportation
or forcible transfer of population, imprisonment, torture, rape, sexual slavery, enforced prostitution or
sterialisation and enforced disappearance of persons. In order to be considered crimes against humanity,
such acts must have been committed as part of a widespread or systematic attack directed against any
civilian population and to be done pursuant to or in furtherance of a state or organizational policy to
commit such attack; and the policy requires that the state or organisation actively promote or encourage
the attack.
 Others: war crimes, aggression.

19. Name international tribunals. Explain its main characteristics.

 The Nuremberg International Military Tribunal: it was the first to be established, followed by the Tokyo
Tribunal. The Charter and Judgment of the NIMT laid down important principles of international law that
were endorsed unanimously by the UN General Assembly of 1946 and which are now part of customary
international law. The most important are that persons are individually responsible for international
crimes; aggressive war is a crime against the peace; a head of state and other senior officials can be

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personally responsible for crimes even if they did not actually carry them out; and the plea of superior
orders is not a defence.
 The International Criminal Tribunal for the Former Yugoslavia: the ICTY is located in The Hague and has
criminal jurisdiction over individuals accused of committing in the former Yugoslavia (since 1991) grave
breaches of the Geneva Conventions 1949, war crimes, genocide or crimes against humanity, as well as
over crimes committed during an internal conflict and listed in common Article 3 of the Geneva
Conventions. It has concurrent jurisdiction with national courts, but can request them to relinquish
jurisdiction in its favour.
 The International Criminal Tribunal for Rwanda: the ICTR is located in Tanzania, with premises in
Rwanda. It has criminal jurisdiction over genocide, crimes against humanity and serious violations of
common Article 3 to the Geneva Conventions.
 Sierra Leone Special Court: it is located in Freetown and has jurisdiction over persons accused of bearing
the greatest responsibility for serious offences committed since November 30 th, 1996 and contrary to
common Article 3 of the Geneva Conventions, over other serious violations of international
humanitarian law (such us internationally directing attacks against civilians and conscripting children
under fifteen) and over certain serious crimes under Sierra Leonean law.
 The International Criminal Court: the ICC was created by the treaty Rome Statute. It is the first
permanent and universal international criminal court, and its seat is at The Hague. It has eighteen judges
elected by the parties to serve nine-year, non-renewable terms.

 GENEVA CONVENTION, ARTICLE 3: (…) Persons taking no active part in the hostilities, including members
of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To
this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in
particular humiliating and degrading treatment; and (d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.

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20. Name and explain briefly the five institutions of the EU.
 The European Commission: it promotes the general interest of the EU by proposing and enforcing
legislation as well as by implementing policies and the EU budget. It is the EU's politically independent
executive arm and, as such, it proposes new laws, manages EU policies, allocates EU funding, enforces
EU law and represents the EU internationally.
 The Council of the European Union: in the Council, government ministers from each EU country meet to
discuss, amend and adopt laws, and coordinate policies. The ministers have the authority to commit
their governments to the actions agreed on in the meetings. Together with the European Parliament, the
Council is the main decision-making body of the EU. The Council negotiates and adopts EU laws,
together with the European Parliament, based on proposals from the European Commission,
coordinates EU countries' policies, develops the EU's foreign & security policy based on European
Council guidelines, concludes agreements between the EU and other countries or international
organisations and adopts the annual EU budget - jointly with the European Parliament.
 The European Parliament: it is the EU's law-making body and it has 3 main roles: (i) legislative 
passing EU laws together with the Council of the EU based on European Commission proposals and
deciding on international agreements; (ii) supervisory  democratic scrutiny of all EU institutions,
electing the Commission President and approving the Commission as a body, granting discharge,
examining citizens' petitions and setting up inquiries, discussing monetary policy with the European
Central Bank and making election observations; and (iii) budgetary  establishing the EU budget
together with the Council and approving the EU's long-term budget, the "Multiannual Financial
Framework".
 The Court of Justice of the European Union (CJEU): it ensures that EU law is interpreted and applied the
same in every EU country and settles legal disputes between national governments and EU institutions.
It can also, in certain circumstances, be used by individuals, companies or organisations to take action
against an EU institution, if they feel it has somehow infringed their rights. In addition to interpreting and
enforcing the law, the Court is in charge of annulling EU legal acts, ensuring the EU takes action and
sanctioning EU institutions.
 The European Court of Auditors (ECA): it is in charge of checking EU funds are collected and used
correctly, and of helping improve EU financial management. As the EU's independent external auditor,
the ECA looks after the interests of EU taxpayers. It does not have legal powers, but works to improve
the European Commission's management of the EU budget and reports on EU finances.

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21. What can you say about the official languages of the EU?
The languages of the European Union are languages used by people within the member states of
the European Union, which is in favour of linguistic diversity. Language policy is the responsibility of
member states and EU does not have a common language policy. There are twenty-four official languages of
the European Union, along with a range of others, to wit: Bulgarian, French, Maltese, Croatian, German,
Polish, Czech, Greek, Portuguese, Danish, Hungarian, Romanian, Dutch, Irish, Slovak, English, Italian,
Slovenian, Estonian, Latvian, Spanish, Finnish, Lithuanian and Swedish. Some regional languages, such as
Catalan and Welsh, have gained a status as co-official languages of the European Union. The official use of
such languages can be authorised on the basis of an administrative arrangement concluded between the
Council and the requesting Member State.

22. What are bilateral investment treaties?

A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private
investment by nationals and companies of one state in another state. This type of investment is called
foreign direct investment. Bilateral investment treaties are established through trade pacts.

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