Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
35 Cards in this Set
- Front
- Back
|
what are the 4 bases of standing?
|
1. direct affect
2. functional protection 3. diplomatic protection 4. erga omnes |
|
|
what is functional protection
|
a platform granting standing for the preservation of an organizations ability to acheive its stated goals
|
|
|
what is diplomatic protection?
|
a state can bring claims on behalf of legal entities who share the state's nationality
|
|
|
what are the 2 arguments for diplomatic protection standing?
|
1. the RU is as much a legal person as a corporation.
2. member states are functionally like shareholders |
|
|
what is the relevant shareholders diplomatic protection case?
|
Electronica
|
|
|
How are the member states like shareholders?
|
they have an interest in the goals of the TRU--this is an equitable extension
|
|
|
what is wrong with the diplomatic protection basis for standing?
|
you have to exhaust all local remedies.
|
|
|
Norweigen loans case
|
intl law requires an individual to exhuast EFFECTIVE local remedies before Diplomatic protection can serve as a basis for standing
|
|
|
when is a local remedy not effective (and therefore not required under Norweigen)
|
1. where the effort would be futile
2. if it is impossible for the indicidual to prove basic allegations in a local forum |
|
|
3 reasons local remedies don't need to be exhausted in this case
|
1. this rule doesnt apply to international law and agreements (Brownlie)
2. there is no effective local remedy (Norweigen) 3. intl. community cannot speak as to the local resources (Lauterpacht) |
|
|
What does SW africa say about direct affect?
|
states have standing when their legal interests--vested in a text--have been violated. In this case, under SW Africa, the violation of the member states' legal interest in furthering their own economic and social well being discussed in the preamble of the TRU is sufficient to establish the "direct affect" platform for standing.
|
|
|
What does the wimbeldon case say aboutdirect affect standing?
|
a party to a treaty need not suffer any direct harm to establish standing, and that the interest in preservation of a treaty alone is sufficient to create standing
|
|
|
what is an obligation erga omnes?
|
obligations owed to the international community as a whole, in which all states have a legal interest.
|
|
|
what are the 2 Direct Affect prongs of standing?
|
1. TRU gives member states a direct interest in the RU
2. violation of rights as 3d party beneficiaries |
|
|
how does the Draft Articles on state responsibility define international crimes (and so, violations of obligations erga omnes)?
|
intentional wrongful act which breaches anobligation that is esential for protection of fundamental interests of the international community.
|
|
|
what is the Erga omnes theory?
|
Adaria's violation of the RU's immunity which is essential (US v Iran) is an international crime
|
|
|
who says immunity is essential?
|
US v Iran 1980
|
|
|
diplomatic protection allows a state to claim on behalf of
|
any legal entity analagous to a legal person that shares its nationality
|
|
|
why doesnt the RU itself bring a claim under functional protections
|
the statute of international justice limits funtional protection standing to states in contentious suits
|
|
|
what does the AAA say about IO immunity?
|
the RU will enjoy immunities granted by international law
|
|
|
what are the state practice prongs of immunity?
|
1. mmunity agreements customarily grant broad immunity (Reinisch)
2. international court rulings provide IO's with immunity (Atkinson, Madero, Eckhardt) |
|
|
what happened in Electronica
|
court allowed US to bring a diplomatic protection claim on behalf of an italian company recognizing the rights of shareholders
|
|
|
what are some IO's that show a state practice of immunity?
|
UN
council of Europe European community |
|
|
what are the arguments that opinio juris supports IO immunity?
|
the UN stated that "the standards and principles of immunity for the property and personell of international organizations has become so widely accepted that they are now part of international law."
2. The VCLT 2 says if there is confusion look to subsequent practice |
|
|
what "subsequent practice" (under the VCLT) shows that the parties to the TRU intended the RU legation to have immunity?
|
4 yrs no taxes
credentials at dinner (like a foreign diplomat) |
|
|
what is functional necessity?
|
even without a bilateral treaty, international organizations have immunity under international customary law when engaged in acts directed at the functions and goals of that organization (Klabbers)
|
|
|
What is the theory as to why the legation and Heep should get functional immunity?
|
they were officially operating to advance the goals of the AAA. That is--to facilitate accession
|
|
|
what are the arguments that the legation had immunity?
|
1. state practice and opinio juris
2. functional necessity under customary international law 3. estoppel from challenge 4. even if the RU is not an IO, mr. Heep and the constituted a special mission and thus, were still immune |
|
|
what is the estoppel argument for immunity?
|
by failing to tax
and by accepting Heep's credentials, Adaria represented that the legatio was immune under the AAA and should not no be allowed to chalenge that immunity after leading the RU into reliance |
|
|
what is the special mission theory of immunity?
|
the legation was sent to perform a specific task, therefore, under VCSM, it is immune.
|
|
|
functional necessity grants immunity whenever
|
they are engaged in acts directed at the goals of the organization
|
|
|
functional necessity is a ... doctrine
|
customary law
|
|
|
what is a special mission?
|
a temporary mission sent by one state to another for the purpose of dealing with it on specific questions or performing a specific task (VCSM)
|
|
|
What is the relevant functional necessity case?
|
Ary Spanns v Iran/US claims tribunal
immunity was based on unwritten rules of Functional immunity rather than on a treaty |
|
|
what are the functions of an international organization?
|
function is interpreted broadly to allow more immuity (Reinisch)
the decision is left to the org. (UN judicial yearbook '76, Klabbers) |
