case law iieul

from summary

unilateral declaration of independence by Kosovo

legality of declaration of independence: general international law does not contain any applicable prohibitions of declarations of independence. Therefore, declarations of independence are in accordance with general international law

the island of palmas

acquisition of territory: the discoverer of a territory obtains and inchoate title. afterwards, it must exercise authority over the territory in order to obtain a definite title. Hence, an inchoate title cannot prevail over a definite title found on the continuous and peaceful display of sovereignty

reparations for injuries

international legal personality: the UN possesses both international legal personality and the capacity to bring international claims against states. reparation damages could be claimed for damage that has been caused to the UN itself or to their agents

north sea continental shelf cases

requirements customary international law: a provision is only able to qualify as customary law, once the conduct results in a state practice and is carried out with legal conviction. states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation

S.S. Lotus

requirements customary international law: it has become state pratice for countries to exercise jurisdiction over their own nationals. however, this is not done out of legal conviction, but rather out of habit. hence, the opinio iuris is lacking and the state practice has not become a rule of customary international law

legality of the threat or use of nuclear weapons

same as title: there is no comprehensive and universal prohibition on the threat or use of nuclear weapons either in treaty or customary law. the opinio iuris is not in accordance with state practice, which is why a general prohibition of the threat or use of nuclear weapons has not become a rule of customary international law, so it is permitted under international law.

nicaragua treaty

relationship customary international and treaty law: the fact that the principles have been codified in multilateral conventions does not mean that they cease to exist and apply as principles of customary law. they retain a separate existence due to parallel obligations

nicaragua responsibility

state responsibility for individuals: a state lacks effective control, if the conduct of private individuals could have been committed without control of the state. in that case, the conduct of private individuals is not attributable to thte state and the state cannot be held responsible for this conduct

nicaragua self-defense

collective self-defense: an action is undertaken for the purpose of collective self-defense, if the victum states have made an explicit request for help to that effect. measures taken in self-defense shall be reported to the UN SC prior to taking action, rather than afterwards

armed activites DRC v. Rwanda

jurisdiction of the ICJ: in case a state has not consented to the jurisdiction of the ICJ, the ICJ lacks jurisdiction and therefore is unable to advance the case past the preliminary matter of jurisdiction

tehran hostages

state responsibility individuals: the conduct of private individuals becomes state conduct once it has been acknowledged and adopted as its own (art. 11 ILC). the state bears responsibility for this conduct, due the conduct having become attributable to the state

prosecutor v. dusko tadic

state responsibility individuals: overall control suffices for the attribution of misconduct committed by an organised military or paramilitary group to a state. the state shall provide the group with equipment, funding and coordination or help in the general planning of its military activity

genocide

state responsibility individuals: a state is merely responsible for its own conduct, which includes the actions of its state organs, as well as the actions of private individuals performed on the instructions or under the effective control of the state

tobacco advertising

EU competences: the court decided that art. 114 TFEU is not an appropriate legal basis for the directive as the directive does not contribute to the elimination of either obstacles to trade or appreciable distortions of competition. the directive was therefore to be annulled in its entirety

ERTA

EU competences: the union has an internal power, whcih comes with an external power to conclude international treaties for all matters falling within the scope of the union’s internal competence. hence, the member states are deprived of their treaty-making power to the extent that their exercise affects internal EU law.

titanium dioxide

national and EU actions: the choice of the legal basis of an act may not depend solely on an institution’s perception of the aim pursued but must also be based on objective factors amendable to judicial review. this includes primarily the purpose and the content of the act.

ERT

protection fundamental rights: national rules must be interpreted in the light of the general principles of law and in particular of fundamental rights. if they are compatible with the fundamental rightsm they can be excepted from provisions

akerberg fransson

protection fundamental rights: any national provision or practice that prevents national courts from assessing themselves whether it is necessary to disapply the national laws preventing the full force and effect of the union rules, is incompatible with EU law.

wachauf

protection fundamental rights: the requirements of the protection of fundamental rights in the union legal order are binding on the member states when they implement union law

internationale handelsgeschellschaft

protection fundamental rights: the validity of a union measure or its effect within a member state cannot be affected by allegations that it runs counter to the fundamental rights formulated by the state constitution or the principles of a national constitutional structure.

van gend & loos

direct effect EU law: in order to assess whether the provisions of an international treaty have direct effect, it is necessary to consider the spirit, the general scheme and the wording of those provisions. the conditions are: clarity, unconditionality and a negative obligation for the member state

marshall

direct effect EU law: it is necessary to prevent the state form taking advantage form its own failure to comply with EU law. hence, in order to prevent national provisions that do not conform with EU law from being applied, a directive may be relied upon against a state authority.

marleasing

direct effect EU law: member states are obliged to ensure the directive achieves its intended purpose. in order to attain the directive’s objective, national courts shall interpret national law in the light of the directive’s wording and purpose.

inter-environnement wallonie

direct effect EU law: a member state is free not to take implementation measures until the expiry of the transposition period

costa v. ENEL

principle of supremacy: the EEC treaty has created its own legal system. member states have limited their sovereign rights and created a binding body of law upon themselves and their nationals. hence, EU law prevails over national law due to the principle of supremacy

simmenthal II

principle of supremacy: upon their entry into force, directly applicable rules will automatically render any conflicting provision of existing national law inapplicable. every national court shall apply community law in its entirety and protect the rights it confers on individuals by disapplying any provision of national law which may conflict with it.

mangold

general principles: the national court is responsible for guaranteeing the full effectiveness of the general principles of non-discrimination in respect of age. for that purpose, they may set aside any provision of national law which may conflict with that law.

Köbler

state liability: normally, an infringement of individual rights under EU law by a final decision of a last instance court cannot be corrected. individuals must therefore have the possibility to render the state liable for this damage, in order to protect these rights.

faccini dori

state liability: a directive is binding only in relation to each member state that it is addressed to. in order to prevent the member state from taking advantage of its own failure to comply with EU law, individuals can still rely on their rights against the state.

francovich

state liability: member states are obliged to take all appropriate measures to ensure fulfilment of their obligations under community law. state liability arises once the conditions are fulfilled: breach of a rule of law intended to confer rights on individuals; sufficiently serious breach; direct causal link between the breach and the damages