Uluslararası Örgütler Hukuku YL Pratik Çalışma Soruları

Link 1. Uluslararası örgütlerin sorumluluğunu açıklayınız.

Link 2. Uluslararası örgütlere tanınan imtiyaz ve muafiyetler nelerdir.

Uluslararası Ceza Hukuku YL Pratik Çalışma Soruları

1. Uluslarararası Ceza Mahkemesinin yetkisine giren suçlardan bir tanesini seçerek genel olarak anlatınız.

2. Uluslararası Ceza Mahkemesi ile ulusal hukuk sistemleri arasındaki "kabule şayanlık" ilkesini anlatınız.

3. Uluslararası ceza hukukunun aşağıdaki genel ilkelerinden sadece bir tanesini seçerek açıklayınız:

a. masumiyet karinesi

b. şahsi cezai sorumluluk ilkesi

c. suçun kanuniliği ilkesi, nullum crimen sine lege

d. cezanın kanuniliği ilkesi nulla poena sine lege

INTERNATIONAL LAW - II for INTERNATIONAL RELATIONS: Tutorial for the Finals

ERCIYES UNIVERSITY DEPARTMENT OF INTERNATIONAL RELATIONS

2011-2012 Academic Year INTERNATIONAL LAW-II Finals Tutorial

1. A common term used to describe the totality of international human rights conventions in customary human rights law is the 'International Bill of Rights'.

Discuss which international instruments and customs might make up this bill of rights and discuss whether you agree or disagree with the existence of an international bill of rights.

Commentary

This question calls for discussion of the general treaties that make up international human rights law and an analysis of whether there is any such thing as an 'International Bill of Rights'.

The treaty regime includes the International Covenant on Civil and Political Rights 1966 (lCCPR), and the International Covenant on Economic, Social and Cultural Rights 1966 (lCESCR). Furthermore, there is a General Assembly Resolution, the Universal Declaration of Human Rights 1948 (UDHR) that has become part of customary international law.

Firstly, you need to show some awareness of the variable enforcement mechanisms in each treaty, the rate of ratification of the treaties and the difficulty in the reporting regime.

Secondly, the question requires knowledge about the alleged hierarchy of human rights and whether indeed in the contested third generation of rights, they are really human rights at all.

Finally, the question calls for a qualitative judgement, whether the student believes the concept, and therefore can state which prevailing academic opinion is most persuasive.

Answer plan

• Describe the body of treaties and international instruments that make up a possible international bill of rights.

• Discuss the enforcement system for those human rights.

• Engage in a discussion of the hierarchy of human rights norms.

• Discuss the debate of this issue within the academic literature.

• Conclude as to whether a universal bill of rights exists.

2. "The role of international organisations in the world order centres on their possession of international legal personality as distinct from, and in addition to, personality under domestic law." Quoted from Malcolm Shaw, International Law, 6th Ed. (Cambridge: Cambridge University Press, 2008) 1296f.

Discuss

Commentary

In considering the legal position of international organizations it is useful to start by considering whether such entities possess legal personality and, if so, what the consequences of that legal personality are. Because international organizations usually operate on both the international plane and in national territories, one must consider whether these organizations possess international legal personality and legal personality in domestic law.

Answer Plan:

• Discuss personality in international law.

• Discuss the objective legal personality and relations with non-member states

The following text is quoted from Dapo Akande, "International Organizations" in Malcolm D. Evans (Ed.), International Law (Oxford, Oxford University Press, 2003) 272-5

A. PERSONALITY IN INTERNATIONAL LAW

1. The meaning of international legal personality

To say that an entity has international legal personality is to say that the entity is a bearer of rights and duties derived from international law. Whilst it was often asserted in the nineteenth and early twentieth centuries that States were the only subjects of international law it was decisively established in the Reparations for Injuries Advisory Opinion that other entities, particularly international organizations, also possess international legal personality. The case arose out of the murder of a UN mediator in Jerusalem by a Jewish group. The UN General Assembly requested an opinion from the International Court of Justice on whether the UN had the capacity to bring an international claim (against Israel) for the purpose of obtaining reparation for injuries done to the organization and its agents. Whilst Article 104 of the Charter imposes an obligation on UN member States to confer legal personality on the Organization within their domestic legal systems, there is nothing in the Charter which expressly grants international personality to the UN. Nevertheless, the Court found that the UN possesses international legal personality, arguing that this was necessary for the fulfilment of its functions. The Court also deduced legal personality from the powers and rights that had been given to the UN (the power of decision-making, domestic legal personality, and privileges and immunities, treaty-making powers) under the Charter. The Court also noted that the Organization 'occupies a position in certain respects in detachment from its members' and that:

. .. the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane.

To say that international organizations possess international legal personality only tells us that they are capable of possessing international rights, capacities, or duties. It does not define the particular capacities, rights, or duties that any particular organization possesses.

2. The sources of international legal personality for international organizations

Although treaties establishing universal international organizations do not usually provide expressly that they possess international legal personality, there are treaties dealing with closed international organizations which do so. Where there is no express treaty basis, international personality may be deduced by other means.

There are two basic schools of thought regarding the method by which the personality is to be established in the absence of an express treaty provision. The first school -the inductive approach- asserts that the personality of an international organization is to be implied from the capacities, powers, rights, and duties conferred on that organization in its constituent instrument and developed in practice. According to this school of thought, an international organization will only have personality if its members intended it to have such personality or if it can be asserted that such personality is necessary for the fulfilment of the functions ascribed to it by its members. The second school -the objective approach- asserts that an international organization has international legal personality as long as certain objective criteria set out by law are fulfilled. Thus personality is not derived from the will of the members. The relevant criteria are essentially stated above in the definition of an international organization: that there must be (i) an association of States or international organizations; (ii) entrusted with functions or powers; (iii) endowed with at least one organ with a will of its own.

However, there is no radical difference between the two schools if one accepts that the characteristics which confer international legal personality on international organizations must necessarily be conferred on it by its members. Once those characteristics are conferred (by the will of the members through the constituent instrument or subsequent practice), the rules of international law confer international personality on the organization with all the consequences that this entails. Arguably, all that the Court did in the Reparation for Injuries Opinion was to search to see if the characteristics necessary for international personality (and which are predetermined by international law) had been conferred on the UN by its members.

3. The consequences of the possession of international legal personality by international organizations

Possessing international legal personality means that an organization possesses rights and duties in international law but this does not usually tell us the particular rights and capacities possessed by a particular organization. However, there are certain consequences which flow from the possession of international legal personality by an international organization:

(i) Personality distinguishes the collective entity (the organization) from the members. In particular, legal personality, separates out the rights and obligations of the organization from those of the members.

(ii) Personality entitles the organization to bring a claim in international law for the purpose of maintaining its own rights. Such claims by international organizations will be brought through the mechanisms which exist in international law for the settlement of international disputes and can only be made in an international tribunal if that tribunal has jurisdiction to deal with the case.

(iii) Personality entails the consequence that an international organization is responsible or liable for the non-fulfilment of its obligations and gives rise to a presumption that members of the organization are not liable with respect to the obligations of the organizations, although this presumption can be displaced. The principle that members of the organization are not liable for its obligations is illustrated by the International Tin Council (ITC) cases.

These three consequences are inherent in the very notion of international legal personality and apply to any international legal person. However, there are other consequences of the personality of international organizations which do not apply to all international legal persons but result from the nature of personality possessed by international organizations.

First, customary international law confers, at least within the host State, certain privileges and immunities on international organizations that are necessary for the efficient and independent functioning of the organization. Secondly, international organizations possess a power to conclude agreements which are subject to the law of treaties. Whilst the question whether a particular type of treaty is within the competence of any particular organization depends on its implied powers, every organization at least has the competence (where not expressly denied) to enter into certain types of treaties. These include host-State agreements and treaties for the purpose of settling claims by and against the organization.

B. OBJECTIVE LEGAL PERSONALITY AND RELATIONS WITH NON-MEMBER STATES

Does personality exist only in relation to members or is this personality objective in the sense that non-members are bound to recognize it, with all the consequences that this entails? Given that international organizations are created by treaties which do not bind non-parties without their consent, it might be argued that the personality of an international organization is only binding on members. This would mean that non-members would only be bound to accept that personality where they have 'recognized' the organization as a legal person. However, it seems that the personality of international organizations is in fact objective and opposable to non-members.
 In the Reparation for Injuries Opinion, the Court had to consider whether the UN could bring a claim against a State (Israel) which was not a member of the Organization. It took the view that:

... fifty States, representing the vast majority of the members of the international com- munity, had the power, in conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognised by them alone.... II

Clearly then, international organizations with a membership consisting of the vast majority of the international community possess objective international personality.
 However, it is important to note that the Court did not say that only such organizations possess objective personality and there are good reasons of practice and principle for concluding that the personality possessed by any international organization is objective and opposable to non-members. In practice, 'no recent instances are known of a non-member State refusing to acknowledge the personality of an organization on the ground that it was not a member State and had not given the organization specific recognition'. Furthermore, domestic courts of non-member States do acknowledge the international personality of inter- national organizations." As a matter of principle, the personality of international organizations derives from rules of customary international law that are binding on all States. Thus, once international law ascribes personality to an organization, a subject of international law is created with its own rights and its own duties.

3. Examine and compare the rules relating to the immunity of diplomats and consuls.

Commentary:

Diplomatic and Consular immunity is a well-accepted doctrine of public international law. The area is largely regulated by two international conventions which must be the basis for any answer to the question: the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.

A very useful reference is Chanaka Wickremanisnghe, "Immunities Enjoyed by Officials of States and International Organizations" in Malcolm D. Evans (Ed.), International Law (Oxford, Oxford University Press, 2003) 388-98

Answer plan

• Define diplomatic and consular immunity.

• Discuss the customary international law in this area.

• Discuss the 1961 Vienna Convention on Diplomatic Relations.

• Discuss the 1963 Vienna Convention on Consular Relations.