Appunti International Law Fasoli e Politi, Appunti di Diritto Internazionale

Scarica Appunti International Law Fasoli e Politi e più Appunti in PDF di Diritto Internazionale solo su Docsity! Notes 1 🌍 Notes 21/09/21 Elena Fasoli Introduction to International Law: https://s3-us-west-2.amazonaws.com/secure.notion-static.com/4e5a5c20-0856-4674-9524-dbbe4f36d2b4/_In troduction_International_Law_1.pdf 🖥 Introduction to International law https://s3-us-west-2.amazonaws.com/secure.notion-static.com/dab52a4d-33b4-4ad4-be51-624b4dcf228d/Int ernational_law_Domestic_law.pdf 🖥 International Domestic Law General features Can we consider international law a society of states? When the Westphalian system was created after the war of the 30 years (mid 17th century), the states were equal in terms of powers. International law making was quite easy: treaties were negotiated by foreign services, submitted to national legislators for approval, and then incorporated in legal systems. The main principle was the principle of sovereign equality, that entailed many other principles such as non-intervention, political independence and territorial integrity of states. What lacked was centralized power with regard to law making, adjudication and enforcement, but it wasn't a fully developed system yet as it was the beginning. Reciprocity as the right to equality and mutual respect between states was a rule. Notes 2 This system was a horizontal way to look at the states. Through history there were many attempts to create a vertical/hegemonic system rather than a horizontal one, the best examples are the ones of Napoleon and the Nazis. At International level there is no higher authority obliging states to do something, but consent between sovereign states does work. Are states still masters of their own fate? Starting from the second half of 20th century: proliferation of international conventions and organizations made by states that become central actors in the international scene. states have surrendered significant aspects of their sovereignty to international organisations with legal personality, the system is intergovernmental. progressive emergence of indivisible general interests of states that cannot be derogated. After the horrors of the second world war, in order to avoid any other war, new rules and obligations entered into force: states need to respect certain rules (not to commit genocide), this is the beginning of the setting of international common values that have to be protected "Erga Omnes" (have to be respected in front of all the society of states) = Juges cogens in 1960, decolonization created a push for more treaties and less customs, in other words less non-written norms and more written norms. Many new slaves wanted to be part of making the law. At the beginning the term"international" meant "European", in the sense that there was little diversity of cultures and countries in the international scene. Everything changed with decolonization. progressive role of Non-State actors → individuals and private sector, individuals had a new action prompt at international level. A private acor could accuse a state in front of a tribunal, there is no need to wait for the protection from your state, you can step in and protect your human rights. constitutional requirements for legislative approval do not explicitly take into account the progressive informalisation of international law-making → nowadays many important documents are being processed to be put into action at international level. International law is very adaptable and malleable but this can be negative: there is a certain specific process that makes it possible for international law to enter national systems, but this process is often changed. The law that doesn't follow the needed process causes the deformalisation of international law. traditional methods of incorporation or transformation are completed by a plethora of mechanisms: EX: informal incorporation into agency policies of intentional guidelines adopted by international organisations → The WHO (world health organisations) adopts sanitary regulations that are then introduced to domestic legal systems. They follow the normal method of incorporation. There is a difficult that lies in the deformalisation of law, result of the wrong ways of incorporation of law enacted by international organisations. International law has always been global and multi-faceted, it has never been rigid. Notes 5 from the purely international law point of view, domestic law that is in force being in contrast with a treaty would breach of article 27 of the "Vienna Convention Law of Treaties" (VCLT): "A party may not invoke the provisions of internal law as a justification for its failure to perform a treaty" This article counts as customary international law and it cannot be breached by domestic law. from the purely national law point of view, parliament and the constitution are sovereign. There is no breach of article 27 because of the sovereignty of parliament. The domestic law in contrast with an international treaty would be lawful in the sense that it would not breach constitutional provisions. EX: UK applies a very strong dualistic system and the 2020 Withdrawal Agreement Act was keen to stress that the Parliament remains sovereign. Art 46 VCLT concerning provisions of internal law regarding competence to conclude treaties: (p.12) "A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance" International law is a tool and a system of rules that people have the liberty of using how they like, rigthly or wrongly. Rules are negotiated by states at the level of national conferences where the aim is to reach compromises. "Consensus" is the preferred way of taking decisions at international level: all states vote and if there are concerns, so if flags are raised, the issue is re-assessed. Only after modifications the decision can be proposed again and this tends to go on for long periods of time. Decisions by voting aren't preferred and should't be used unless there are other issues, since the aim is to find a compromise and to reach consensus of all. Only if no more flags are raised the provision is passed and ready to be transposed domestically. Domestically the treaty has to be ratified and this is done differently depending on the system → The more strictly dualistic the system is, the more the "parliamentary sovereignty" card can be played since they are much more "protective" of their legal systems. An example for this could be, again, the Kadi case. https://s3-us-west-2.amazonaws.com/secure.notion-static.com/799dc291-1b2e-4f90-91a3-a5bfec99d350/EJI L_Article_on_Kadi_case.pdf Article 27 of the Vienna Convention Law of Treaties is the most important article we'll cover as it regards internal law, prevents fragmentation and guarantees the building of trust even at international level. EX: Appellate body of the WTO → The USA stopped the nominations of the WTO and altered the mechanism. The member state wanted to be part of the body and enabled the body to have the indipendence to adopt guidelines and provisions, but one single action can stop everything. → Mauro Politi Recent events in international relations: Notes 6 Afghanistan, after the attack on the twin towers on the 12th of september of 2001. The reaction of the USA was to attack Aghanistan and the taliban regime, were alquida and Bin Laden were. Many questions arose in these years: if there are rules of international law, do they apply to terrorist goups? Who are the subjects of international law? Can alquida be considered a subject of international law? What are the limits of the war against alquida? International humanitarian law is usually breached in case of wars (things like torture in the USA and UK prisons in 2003). This law tries to put some limits to the way states conduct wars in order to humanise the conduct of hostilities. International humanitarian law is very similar to international human rights, but the second one is way more recent. Rowinga, a muslim minority between Myanmar and Bangladesh. There is a conflict between the buddhist majority and the Rowinga. Human Rights are being violated. Is there an international legal body that can stop this? What about the case of genocide? In these situations the International Court of Justice can intervene. There are problems of jurisdiction in cases in which more than one state is involved, also in this case the ICJ can intervene. Differences between domestic legal system and international legal system How can we characterize the legal system? Using these three factors: 1. Legislation = position of norms in the system, how norms are produced and become binding 2. Adjudication = what are the rules in cases of dispute for application of a norm 3. Enforcement = what happens when the law is enacted International Legislation → The subjects are not individuals but individual states, entities that form the international society. The relationship between the states can be called "sovereign equality". In international society, which isn't organized but rather anarchic, some states don't follow certain rules if they didn't participate in making them. It's the law of auto-limitations of States. There are two main ways of production of international law: customary law → states agree to conform their conduct to certain rules that are commonly accepted throught the community. These rules are implicitly accepted as they limit the freedom of states that recognize them treaties → a number of states decide on certain rules on any subject and implement the rules domestically and internationally. There is no hierarchy between the two, customary law can derogate to treaties and treaties can derogate to customary law, there is no primacy of one over the other. There is an exception, in the last years the concept of Jus Cogens gains importance. Domestic Legislation → The National legal system can be considered a triangle with an authority at top and legislators, parliament and more bodies at the bottom. Overall it's a structured organized body that produces law effectively. Adjudication → there is a tribunal and a judge. The system adjudicates who's right and who's wrong. The system is very organized. Notes 7 📌 The Ius Cogens are the series of rules and principles that cannot be derogated in any way Adjudication → there is no organization, a third party cannot decide on a dispute between two states if the states haven't personally approved it. The consent can be given in many ways: Compromise: two states decide on agreement a third party Compromissory clause in a treaty: a clause included in a treaty specifies the tribunal competent General treaty of arbitration: only for some states that trust each other very much, they choose on one judge that will solve every complication they will have The ICJ's intervention can be triggered in many ways → art.36 paragraph 2 of the statute of the ICJ Each State which has recognized the compulsory jurisdiction of the Court has in principle the right to bring any one or more other States, which have accepted the same obligation, before the Court, by filing an application instituting proceedings with the Court acceptance by a state of the mandatory jurisdiction of the court for whatever case if a dispute arises among the states that recognise the article. Also in this case, the consent of the state is required. art 33 of the chart of united natons → list of possible solutions of international disputes. They suggest a way to solve problems and states have the freedom of applying them in law. Domestic judges are often asked for interpretation of international law rules for the puropose of representation of individuals. The judicial adjudication function is based on the willingness of states to be subject to a third party in judicial settlements. Enforcement → In classic international law there is an influence of the most powerful states on the less Enforcement → based on the authority of the state, there is a code that must be followed. The breach of it results in consequences determined by the national law (imposition of fines, ...). Organised trough insistutions designed for this purpose. Notes 10 Treaties have been regulated by the Vienna Convention, that was originally not binding → it was an effort of the ILC (international law commission) of progressive development in the area of international law. 💡 The international law commission usually meet in Geneva, but discuss propositions in New York. States can take three different ways to decide on something at international level, the practice of states is: negotiation process practice = the state wants to adopt a new treaty, it implicitly means we agree with the treaty. Aquiescence, the state doesn't oppose or object so it automatically means it accepts diplomatic practice = states talk to each other and exchange official notes judicial practice = judgement in the international court of justice In international law, stability and trust are key, because the document coming out the ILC is committing but not binding. Only through good faith, states can uniformally commit to the text. For example the Vienna Convention had this characteristic, but when it became legally binding, states were already committing to it. This happened because the ILC did a good job in making the regulations flexible enough that many different states agreed with it. definition of treaty is cotained in article 2 of the convention: “treaty” means an international agreement concluded between states in written form and governed by international law, wether embodied in a single instrument or in two or more related instruments and whatever its particular designation If states decide to stipulate a treaty between them, other states remain outside and aren't affected in any way. Treaty law took prominance at some point in history, especially in the mid 20th century (more written, less unwritten). Regional vs Global or universal agreements European convention of human rights is a regional agreement / The UN charter is made up of states and is a gobal treaty, even the Paris Agreement isa global treaty Vienna convention on the law of the treaties covers the procedure of adopting and transposing treaties in respective of the subject matter of a treaty. It doesn't refer to any type of treaty subjectwise, every treaty has to respect it in any topic. Its atreaty on treaties. It rekated treaties that are concluded by the states who are bounf by the convention and applicable to treaties that entered into force after the convention. Treaties are only binding when in force (at international level) normally there is a treshold in the case of multilateral treaties EX: a treaty enters into force after the deposit of 60 ratifications The date of a treaty specifies the year of adoption, which is different from the date of enter into force. The time is shorter if the treaty is successful, it mean that states were ready to transpose the treaty. The entry into force is the moment in which the treaty becomes binding at international law level. Every treaty, at the end of it, has a provision that specifies the period of time in which the states have to ratify the agreement. When a treaty is multilateral, a treaty is open for accession, so states can decide to be a party of the treaty in any moment. In this case the treaty can be already into force. They are called open treaties. When an international organisation decide to become part of it, they adopt council decisions → mixed agreements When we look at the entry into force, we have to look at the text where there probably will be a treshhold. The treshhold is the minimum number of states or parties, not the maximum, states can join. Notes 11 The system of ratification of a multilateral follows domestic law rules. Even if the piece of legislation could become applicable at the domestic level, they have to wait for the international treaty to enter into force. The domestic law is freezed up unitl the moment in whihc the treaty enters into force. The treaty is ratified at domestic level when it goes trough parliament. With simplified treaties that aren't burdensome, the signature is the consent of the state and counts as ratification. In this case the treaty doesn't have to go trough parliement. The treshhold defines the bindingness of the treaty (certain number of signatures has to be reached). Only after the treaty can enter into force. The instrument at the domestic level remains conditional upon the entry into force of the treaty at international level. Expression of consent → ratification ratification as a means of expressing consent to be bound (article 14 VCLT) agreements in simplified form;ì: entry into force occurs through signature (article 12 VCLT) obligation of registration at the UN secretariat (article 102 UN charter and article 70 VCLT) Do we also have to register the treaty at the UN secretariat? Yes, It's an abligation. Generally speaking thid doesn't have an impact on the validy. This formality is needed if you want to use the treaty with the ICJ or the UN secretariat Persons empowered to express consent diplomats represent a state and can express consent of a state to enter or sign a treaty The de jure plenipotentiaries: head of state, prima minister, minister of foreign affairs other stte and diplomatic representatives have to be expressively conferred “full powers” in order to bind the state on the international plane (article 7 VCLT) More written, less unwritten the new rules that arose internationally were jus cogens. Rules like this don't establish sinalagmatic obligations becuase the breach doesn't concern only two states but all states of that treaty have a legal interest in the respect pf those rules. Multilateral treaties can apply many types of obligations: sinalagmatic nature: when it is breached, it's a the interest of only two states, even if the treaty is multilateral. The interests in the breach are brought upon in pairs. erga omnes partes character: the states isn't obliged to respect the treaty in front of just one party, but the importance of the rule makes it at the interest of every member of the treaty. Protection of collective interests These obligations can also be customary inernational law, they also are considred erga omnes obligations The vienna convention on diplomatic relations concern diplomats and is one of the most ratified treaties. “Whatever its particular designation” Agreed minutes of meetings: Bangladesh and Myanmar case (2012) before ITLOS (international tribunal for the law of the sea) → exchange of notes, agreed minutes of meetings. The two delegations were discussing about the maritime boundary (since they are quite constroversial and hard to define) and the extension of their maritime area. Before going in front of the ITLOS, the delegations were discussing and negotiating about the situation. From 1974 up until 2010 they were discussing. Only 1974 the two delegations signed the agreed minutes (writing of the talks between the two delegation) regarding the maritime boundary of the countries. The dispute was still going on and so they decided to trigger the tribunal in Hamburg. Their question was can we consider the agreed minutes as a treaty? An agreement (art 15 ITLSC) is needed, do we have it? Yes the Agreed minutes. the tribunal came up with an interesting interpetational technique to find a solution: they looked at elements in account (slide 9): content of the minutes (conditional understanding during the course of the debates, not conform with article 15), circumstances surrounding the adoption (how the delegations behaved during the discussion, the judges saw that Notes 12 Myanmar made it clear that it wanted a comprehensive agreement with bangladesh, so it is clear this was just an account of discussions and not a treaty), the authority to coclude a legally binding agreement (who could engage his country without having full powers? there is no evidence that the representative of bangladesh would have the power of engaging the whole country in the treaty) and the internal acceptance of a treaty (were the agreed minutes treated domestically as a treaty? ) Conclusion: the agreed minutes weren't to be considered legally binding, they can't become automatically a treaty elements that were taken into account: substance of the minutes; circumnstances sorrounding adoption; authority to conclude a legally binding agreement; internal acceptance as a treaty Before entry into force does the treaty has no value at all? They are part of good faith → states want to be seen as reliable and predictable and the other states are expecting that you would honor anyway the content of treaty right after the signing. This is not legally binding but it is politically committing. To not do it is to ruin reputation and honor. It has to do with very important ptinciples such as priciple of good faith / reciprocity / stability of relationships / predictability between states / principle of acquiescence. A treaty can still have a persuasive or an authoritative statement and it can be used as a model. Bazel convention: liability Kyoto protocol Sources of international law → Mauro Politi Discussion on sources of international law → Customary law There is no hierarchy or authority in international law, and international customary law comprehends those rules that ensure coexistence and cooperations. These principles are not always complied with. Notes 15 who is going to pay for the conference, costs may increase if the conference is in a place that isn't new york since the delegations need to move. The decision is mainly political. Ratification → solem procedure needs ratification, simple procedure doesn't need ratification because the signign counts as the conclusion. It's very unlikely to have a conference between 160 or more countries, in these cases states have to agree on the minimum ratification that needs to be deposited in order for the convention to be concluded. The number of ratifications varies. With less states, the treaty might not be recognized by all but with tmore states the decision can take a long time to be concluded. In practie negotioans are conducted trough a structure of the conference: the plannery of the conference, a meewting oin which all states participate and where it is identified the political position in rospect to the issues that need to be solved and concluded in the conference. In order for a conference to happen, the issue already has to be discussed by the countries. Square brackets → there are proposals and the conference has to decide wich one is valid. Political representaives set up the political position of the states in regards to the subject of the conference. Certain countries have very strong positions against the idea of reaching an agreement with others. In this case everything is recorder, everybody knows the others' position The real work starts in a place where people can speak without being recorded, this is the committee of the whole. There are circa 150 delegations so it's still a big one. To tackle specific aspects of the convention, the committee is divided in working groups. This job is very tiring since there are delegations that may or may not participate discussion, so you don't know if your efforts will be nullified in the end. Another tactic, often put in place by the delegation of the USA, is to participate in the discussion, try to have a text that is less damaging as possible to their position, and leaving uncertain your position to be able to always change your mind at the end and choose to not sign. drafting is important too. The drafting committee uts together the results of the woorking groups and present them to the committee of the Whole. They try to make the final document coherent approval by the committiee of the whole is fundamental, either by agreement or consensus. The form of adoption needs to be decided in the rules of procedure. Difference between adoption, sign and ratification. Formal adoption by vote statements of those who have approved and those who haven't with explanations. The discussion can be tense and controversial cerimony of signature, the tail of the conference. The document has to be opened for a period of time during which the states sign the document. Some states sign right after the adoption while some other states wait. The document stays at the minister of the foreign affairs of the country of the conference and after some time at the united nations. "Accession" or "adhesion" means states have signed and ratified ant the same time. Treaty law → What happens during the negotiations in which states take part not only individually but get tother in groups that are formed in order to influence the outcome of the negotiation and the text of the treaty. Big important countries are most times the ones to have a bigger influence in group talks, their national individual position is high up. In these groups there are alliances, some states can enjoy more support than others role of the members of the EU: the common position of the union is fundamental and has an important weight in negotiations. The position of european union has in negotiations is high, progressively the union gains more importance since the EU is expanding role of the presidency of EU is important: facing the prospect of a difficult international negotiation, te presidency release common statements. There are cases in which the position is a little different, but one cannot Notes 16 underestimate the importance of EU's position. Countries like the USA, RUssia,; china and India have high positions in negotiations. Other groups that influence negotiations are based on economic strength and are mostly developing countries like the group of 77 which is especially very important in the field of protection of environment. The division between groups is not clear: the position of the Eu is at the same level of a similar country in the sense of principles → like minded states, not identified with a specific territory or political prosition, but there is a general agreement on the protection of certain principles. EX: The rome confernce wouldn't have happened without the fall of the Berlin Wall - The Eu is a group of like minded states at some level, but also countries like Canada, Australia and New Zealand progressively have become like minded and have gained importance in negotiations. The influence of like minded countries is high. In this same respect it has become important in international negotiations of non governmental organizations → in areas of human rights and international humanitarian law. The role NGO's has become important especially in the years after the fall of the Berlin wasll, when the atmosphere of cooperation and new beginning started: role of NGO in the negotiation of participation in the landmine production negotiation in Ottawa in 1997, for the first timr there was a NGO that protected human rights, they got together in a coalition. In the same way in which states are in a coalition have much more influence on the outcome, the same thing happend and they gained the right to have participation in the discussion. As of now, this participation is limited, NGOs can participate, intervene, be in contact with state delegations in order to help them setting up goals and more. There could be also resistance from the states, but the voice of civil society is very important so historically, NGOs have never been stopped. There is an umbrella group of NGos that present their views on environmental litigation and climate change litigation. WWF and supranational organuzations such as Legambiente in Italy, have discussed these principles. their position is not always the same, there are extremist and more moderate positions, Amnesty International is extremists in human rights litigations. In environamental law conext. Greenpeace is quite extremist in the extinction protection field. This influences other negotiations and prevents some NGOs from reaching agreemnts with an NGO that is "extremist" In today's international community, there are states, group of states and NGOs in the cotext of the general political situation of the world. International law is linked with the political atmoshpere there is. International law might be described as useless but that is partially true, even at doemstic level this applies. The period of cooperation that came witht the fall of the Berlin Wall ended witht he attack on the twin towers. The new presidency of the united states favored international law cooperation and ended with trump presidency. Different crimes: genocide war crimes: like minded states set out a list of war crimes, but the nuclear states (USA, UK, China, Russia) didn't want to limit. They didn't want to expand the ambit of war crimes, so there are restrictions in some fields for the interest of those states crimes against humanity: nowadays they can be committed in times of peace, there was a sufficietnly democratic system to protect them. Arab states were against restriction on war crimes for protection against their crimes, even in the field of crimes against humanity they didn't accept restrictions (like china). Notes 17 How is multilateral treaty presented? it was to be quoted rightly, it has to be named or titled, a subject has to selected and the date of adoption has to be expressed the preamble is the part that is not operational, it spells out reasons and motives. It's something that is important for interpreation of rules of the same treaty. It identifies the purpose, the negotiation of the preamble is as important as the negotiation on the opearational parts very often there is a part concernign the definition of terms used in the conventions. EX: the Vienna convention has it (accession, full powers, treaty,....). This practice comes from Anglosaxon contracts dispositive operational part of the convention final clauses (time of signature, wether reservations (state can take a step beck to not be binded by the treaty) are allowed or not → there are many cases and even case where this is not specified), in what languages the treaty should be re written, what is the original version and the language of it, possible withdraw from the convention and other formal problems) Treaty and interpreation, what are the principles? art. 31 to 33 of the vienna convention: thwre are two types of interpreations accepted by the convention, there is a hierarchy: general rule of interpreations thta favors literal intepretations, based on literal meaning of words, in the contest and in the light of the context of the treaty. (In the 1500 one of the major writers, one of the first to deal with international humanitarian law, was Pietrino Belli, who wrote a treaty called "de re militari ac bello", a book on military questions). In dealing with internatuonal humanitarian we find many reflectios, we have to be careful not to interpret a treaty depending only on the letters. Sparta and Athen negotiated an armististzio for 15 days, very soon sparta attcked athens whhich was very upset. Sparta's excuse was that they attacked at night, not in the day, they literllay interpreted the 15 days expression) supplementary means of interpreation, comes into play when the first type of interpreation isn't satisfactory, it's explained in artcle 32. Theroetically the preference of interpreation is the literal one. The hierarchy it presents doesn't work in practice. This divison doesn't correspind to reality, most times when preparatory works of a negotiation, the process can go back and forth continuiously. Sometimes there is no clear cut explanation for why a certain rule is crafted in a way or the other, there is no clear objective. The only reason for a rule is because it brought everyone on the same position for acceptance. The importance is to achieve majority. Unilateral acts Another possible source of internal law thta are the expression of the will of one state and and to have an impact on the legal situation of that sate and others. EX: withdrawal of the treaty, the recognition of a new state (afghanistan), diplomatic protest (its scope is to avoid that you can be considered aquiesscence to the violation of the international law), unilateral promise of a state (does it have obligations if violated? I there a responsability? → case in which australia and new zealand accused france of violating the promise of stopping nuclear texts production in the pacific islands under french sovereignty, the president of France had set a date. The promise is solid and if violated, there is international responsability. → there are circumstances that can change the lifeline of a treaty. suspention of a treaty in case of conflict (arm conflict): the traditional result is the extinction of a treaty, nowadays the treaty is suspended. Thtreaty can be then resumed. The effect is not necessarily negative, it can trigger the operation of other treaties. Notes 20 Incompatibility between treaties on the same subects but without the same partecipants In determinign treaties, which one prevails? AB:AB (bilateral) or ABC: ABC (multilateral) pacta sum servanda AC:AB state A can decide wether to apply the earlier treaty (and breaching the second one ) or to apply the subsequent one (and breaching the earlier one); either way, for state C, the earlier treaty that A was already party to with B, remains “res inter alios” : ABC, two treaties can't coexist, A has a decision to make, wether to remain in the bilateral treaty with B or be part of the multilateral treaty with c. subsequent treaty is derogating the previous treaty , later law prevails over earlier treaty In EU law, relationship between EU treating and previous domestic treaty → compatibility clauses. The treaty itself spells the conditions. Article 351 TFEU charter is a kind of subordination clause. Article 103 UN charter is in contrast a priority clause, if there is an incompatibility between Un charter and treaty, the charter prevails. The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States. North sea continental shelf case 1969 dispute related to the delimitation of the continental shelf between Germany, on the one hand, and Denmark and the Netherlands, on the other, before the ICJ Notes 21 https://s3-us-west-2.amazonaws.com/secure.notion-static.com/74cae7f0-692f-4a53-a943-00e873f380e5/ North_Sea_Continental_Shelf_case_1969.pdf geneva convention of 1958→ costal states have the possibility of exploiting sources of the sea up until 200 miles from the coast Dispute between federal rebulblic of germany and both netherlands and denmark. It concerns the breach of article 6 of the geneva covention that was in power before the law of the sea. Is this article applicable to Germany, are they bound? Germany at the time, didn't ratify the Geneva convention. Is this article part of international customary international law? article 6: → the boundary should be determined using the equidistance principle if there was no accordance. Is this applicable to Germnay? Theoretically no The equidistance principle wasn't convenient fro Germany, because their costal territory would be smaller. The eqity principle would be a better solution The ICJ elaborated the " relationship of campatibility" between treaty law and customary international law. This tripartition: codification → declaratory effect, the relationship could be declaratory (Black dott, the rule is mature, there is a custom at international level, the treaty is the later stage and declares the codification procedure of a norm that is already existing at international customary law level) Crystallisation → the norm is believed in internationally, when the treaty comes and takes effect, the process of formation international customary law was already at a very advanced stage, states and IO already made imputs of the norm and more. The moment in which the norm matures, the treaty is enacted. Thanks to the treaty, the custom becomes mature and the process of formation is concluded and fully fledged. norm creation effect → the process of development is given the imput byt the treaty. Thanks to the codification of the treaty, the process of acceptance and conformity starts. The moment of fully fledge comes after the enactement of the treaty. Notes 22 Germany could have been seen as a party, the equidistance principle couldn't tbe seen as international customary law. The solution was to use the equity principle. Notes 25 1. easy → states accept the provision of the treaty of state A, they don't think the provision jeopardizes the purpose of the treaty 2. the other states might object the provision, they think the provison goes further the core of the treaty. Article 20-21 tell us "provisions don't apply to the extent of the reservation between state A and objecting state" (=while objecting, the other state wasn't rigid enough for opposing to the entry into force of the treaty). State A gets what it want even with the objection 3. more extreme and integral one. The other states come to the conclusion that the treaty doesn't enter into force between them and state A. The treaty isn't applicable because the state objecting is objecting to both the bilateral relationship and to the provision of reservation. Other states can still be okay with it though. EX: area of international economic law→ free trade agreement is a multilateral treaty upon which states can have their investors moving to other states party of the agreement to start businesses or invest. State A wants to enter and inserts a reservation to one of the provisions of the free trade agreement. Ivestors from states party of the treaty can make business and invest in Italy but not Trentino Alto Adige. Every other state has discretion over the matter. Let's apply the three scenarios: state B accepts the provision of reservation, state A wins state C objects to the reservation → state C hasn't opposed to the entry into force of the treaty between itself and the reserving state, the priovison to which the reservation relates do not apply as between the two states to the extent of the reservation. State A wins anyway because the VCLT favours the "newcomer". Why? Matter of politics, the objection is a mere political move. It can also be a sign of protest. To state ones position, it creates legal effects. state D believes the limitation is really against the purpose of the treaty and opposed the objects the reservation of the treaty even in their bilateral relation. State A still remains party to the free trade agreemnt in relation to B and C, because only D is so rigid about. In multilateral treaties, more states have different opinions. This is another thing that causes high fragmentation and uncertainty of opinions. The core of these conventions was so important that the rpice dishomogenety was paid. slide 10 Before the ICJ decided to be asked to clarify reservations, things were based on a rigid system based on unaminity. It had to be done at the moment of negotiation and everyone had to agree on it. In 1951 the ICJ rendered an opinion on reservations and changed things dramatically. On resrvations, the ICJ has jurisdiction and for this reason they were asked to clarify the matter. Advisory opinions aren't binding, however, since they come from the ICJ ("World Court", most important court at international level) they are very relevant and very highly authoratative pronouncements that anyone would reject. This issue came out afte the second world war, where more and more treaties were signed and ratified to protect human rights at international level and, in order to get more states to be party to these treaties, the issue of resrvations became important. When the process became more flexible, the principle of compatibility with object and purpose of treaties became international customary law and was actually then ratified with article 19 of the VCLT. The problem with flexibility is that there is multitude of relationships between states with different opinions on reservations, and this creates a high level of fragmentation and less certainty about the application of the rules listed in the treaty. Reservations in human rights treaties Within the context of protection of human rights, things are different because practice and the progressive work of the human rigths bodies (committees and courts of law that apply the corresponding conventions: ECourtHR → EConventionHR). Most of these bodies were dismanlting the old interstate system and leading to a situation in which a private individual could sue an institution directly without the representation of the country. A Notes 26 multilateral human rights providing protection of the rights to life, including the prohibition to apply death penalty. (slide 11) → the states party to the treaty have to follow the guidelines. State A enters the treaty and present a reservation declaring the consent to be bound by the treaty, but they don't want to jeopardize domestic jurisdiction on criminal law, so they don't agree with the article on right to life in case of death penalty. Is this reservation compatible with the object and purpose of the treaty? There is no body that can directly choose what to do, we could say that a cetain practice has emerged (MPIL → practice of treaty bodies p.10). Committees are not tribunals, for example the human rights committee have the task of assessing potential comunications from individuals in relation to the breach of a party to the treaty. They aren't able to state binding judgements, they only issue reccomendations on the issues. The UN systems have a bunch of lawyers hearing individuals' alleging the breaches of treaties and anayzing the cases. Generally, state don't want to be "named and shamed", they want to avoid being called out by UN committes in any way. These bodies produce cases, and results have shown a tendency, starting from the experience of ECHR, from the bodies established from the very same treaty, to develop a practice to asses wether or not there was compatibility with object and purpose of the treaty. These bodies pronounce the lawfulness of reservations. The practice consisted in taking out the reservations if they weren't in accordance witht the compatibility principle, like the state has never presented the reservation in the first place, but the state still becomes part of the traty in its entirety. This was very much criticised because it attacked the soverignty of the state. 1966 optional protocol on the covenant → article 1 → a reservation was made intending by Trinidad and Tobago to exclude from the competence of HR committee the possibility to hear communications from prisoners under death penalty. This reservation was found incompatible with the core of the article of the protocol and therefore invalid. Trinidad and Tobago treathened to get out of the treaty, so starting from that moment there was constructive dialogue that brought to a new attitude of cautiousness in assessing the compatibility of reservations. This new attitude was more in line with the object of international law for the treaties regarding protection of human rights, where the importance of more and more coutries becoming party is very high. The use of cautiouness is indispensible in the dialogue with different countries, and the committes have to be flexible and ready to accept reservations. Different ways of breaching → EX : genocide is committed nowadays, it doesn't mean the state doeasn't believe in the rule. The state reacting and breaching the rule of genocide and wrongly self assessed the situations, isn't breaching the rule because they don't believe in it, but is breaching it because there is no justification or armed attack in the first place. → Breaching with the intention of changing the rule )/= Breaching with the intention of confirming the validy of it Subjects of international law https://s3-us-west-2.amazonaws.com/secure.notion-static.com/d64fa7a5-3d39-4128-a6b9-debff05738ec/ OPIL_LaGrand_Case_Germany_v_United_States_of_America.pdf https://s3-us-west-2.amazonaws.com/secure.notion-static.com/97ff67d7-7b37-4cf2-85b8-845293801d8 e/Subjects_of_international_law.ppt States and International Organizations, are they on the same level? It depends on the action that they intend to pursue, they act independently but not all the time. Notes 27 International Organizations have certain mandates and subject matter, they usually have a certain aim to pursue. Do they have international legal personality? To what extent? The more independent they are, the more they are questioning the soveregnty of states, for example they may become more independent at decision making level and don't need to ask for consent anymore. States have a general mandate and an international legal personality. We need to look at cooperation → the more integrative, the more intrusive in national sovereignty, the less integrative, the less intrusive in national sovereignty (intergovernmental relationship) → Elena Fasoli Erdogan → persona non grata → there is no obligation for any state to maintain on their soil foreign ambassadors, so he expelled the ambassadors from 10 countries. Article 41 says that the foreign ambassadors don't have to be involved in internal affairs, so Erdogan used this legal basis. International legal personality → The subjects are those entities that have obligations coming from the rules of international law (adresses of the rules) and those entitities that derive rights of international law. They are entitled of this right, so they automatically have international legal personality. Global law interferes with the subjects of international law = new approach to the functioning of actors at international and transnational level (going beyond states). The state has a fully fledged international legal personality, in the westphalian mode states are all independent, equal in the application of international law and they interact with each other. State's soverignty slide 3: internal sovereignty: if you are a state you have the jurisdiction to adopt a legislation, to adjudicate on violations of the laws and to enforce law. This has a limit → foreigners in a country, the country has to limit its sovereignty, aliens' human rights are to be protected. (jurisdiction to prescribe, adjudicate and enforce) external sovereignty: states are free to make their own foreign policy choices. (example of Erdogan, he took a decision and did it, the only limit would be the political reaction from other states). One limit is the rules of international law → customary international law obliges states to comply with certain rules. To have international legal personality means to have the capacity of being bearers of rights and duties. States are considered to have the capacity to be bearers of rights and duties provided that they are "effective" and "independent": territory with settled borders (For the ILC it's still a problem to state if having a territory is a necessary element for the existence of a state, in case of sea level rise and the possible loss of certain states, this is an important issue. Historically speaking another example is the goverment in exile (war times). Many times borders are contended between states, does the delimitation of the state matter in the identification of a state's legal personality? No. There is uncertainty in this matter) independent and stable government, there is no risk of a sudden change of government. Arbitration → the minimum is to be able to maintain public order and a minimal substantial coexistence between those who are ruled by the government. have to be able to guarantee the rights to aliens permanent population ruled by the government Since there is no central authority, every state could have different views on wether an entity has international legal personality or not. Usually the Montevideo Convention is used as a parameter to understand the international legal personality: population core territory Notes 30 adopt binding acts its own financial resources, not payed by the member states proper legal order (EU) it includes a body that represents the peoples of the MSs (in the EU this is so strong that the system became intergovernmental) ROLE OF THE INDIVIDUAL= The role of individuals and they postion they have has been changing a lot over the last 50 years. In westpalian law, individuals were considered subjects of states while being in control of them. The basics of this apporach is composed of the rules of the treatment of aliens and the institute of diplomatic protection. In terms of treatment of aliens, we need to talk about property. Foreigner's property is to be protected in order to appear as a functioning and sovereign state by other states. In the case of expropriation of foreign investement or properties, compensation needs to be paid la grand case slide 32 The theory of progressive emergence of individual rights is the opposite of classical theory of diplomatic protection. The role to be played by the individual in relation to potentially triggering human rights courts (ground braking development) but also companies. Companies within the ICSID tribunals can sue the hostess state directly when they are operating. Basics of diplomatic protection classical institute that is used when there is a violation of a standard of human rights in relation to the treatment of aliens, state of nationality is entitled potentially to invoke the responsability of the state when the violation happens, it can be channeled trough diplomatic means state nationality has discretion as to wether to invoke it or not, the diplomatic protection is of the state procedural conditions are citizenship (la grand case, germany) and previous exhaustion of domesic remedies (fundamental in order to make sure thta he case could be solved within the country where the incident happened in the first place, before triggering the international mechanism, the domestic one should be able to protect trough the judiciary. this respects the soverignty and dignity of the state and is really important at international level). This rule is also applied by the ECHR but with a variation, The ICJ has a soft approach, while in a domestic court of law the approach is quite rigid. slide 34: progressively things have changed slide 35: tabella, human rights bodies make it possible for individuals to directly sue a state slide 36: ECHR article 1 → obligation to respect human rights who is the addresse of this rule? States are the parties of the agreemnt, they committed to each other and reciprocity applies, players have extra powers, when an erga omnes rule is breached, every other party has the interest to protect that rule. The beneficiaries or addresses of the protection are the individuals within their jurisdiction. slide 37: doctrine of individuals as beneficiaries of international human rights obligations. States are the primary recipients of the rights deriving from human rights rules. slide 38 Notes 31 different doctrine actionable rights, establishing individual rights (the la grand case) highlight two doctrines article 36 of the VCLT La grande case the two brothers tried to use domestic remedies first, they weren't aware of article 36 At some moment, an inmate informed them on the existence of article 36 and their right to ask for help and assistance The icj comes into the picture: the german consulate asked the provision under article 41 of one of the brothers (the other one was already dead after death sentence). It became clear that the orders for provisional measures should be binding Two procedural elements of diplomatic protection cases domestic remedies, depending on the body the approach changes: 1. exhaustion 2. explorational Important issue that this case was used → the claim that was brought was that there was a breach by the agents of the united states to allow the two brothers to have access to their counsolar assistance, that's because botht he US and Germany are part of the VCCR and are binded by it. Was there a breach of one of the articles? Article 36 was the contended article Article 36 → Communication And Contact With Nationals Of The Sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this article shall be exercised in conformity Notes 32 with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. what are the points we can connect to the two theories (indivuduals are the real addresses and players of international rules / individuals aren't subjects of international law)? in point A → states are the main characters since consulars are part of the state, indivuduals are mere beneficiaries . This rule is put in place for the sake of states. / In another view, the state is an agent and assists the individuals to protect its rights Judges often have dissenting opinions or separate opinions (they elaborate further on certain points). They couldn't flag out the existence of the rights of the two brothers so this couldn't be disregarded by them, the judges still had different opinions. In international law there always the fragmentation. textbook: there is a role to be played by the individual, they were the ones that has to trigger the protection of their right / the individuals have criminal responsability on the international sphere too, In international law here is no compulsory mechanism of law determination, everything happens for consent of the state, a state has always to consent in front of a judge, when this is present: State VS state → interstate proceedings upon jurisdictions Private VS State → The citizen is against the state, the private actor suffered the breach of its private rights. This approach became relevant after WW2. The individuals has actionable human rights and is at the same time the addresses of obligations. international community VS private individual → the indivdual is obliged to comply with international rules and are passive actors. If they breach they have international criminal responsability. Head of state commits genocide→ two different possible adjudication precedures: the individual goes before the ICC /specialized tribunals with specific comepetences Klabber's position (textbook) → the indivdual is the addresse of certain powers and actionable rights and is binded by the stautes. Wetehr or not it is also a "subject" of international law seems a bit beside the point. what is important is to create a system of decent international legal rules for individuals answer tot he question: classical approach → after WW2 → differences → la grande case → additional elements (progressive evolution of new actors in global law) slide 43 NGOs → they are not subjects of international law, but on certain matters they play an important part, they provide practical knowledge by experts (mainly human rights and environmental law cases). If they are too political they end up not helping and their opinion might not be needed. In cases of climate change there is an umbrella of NGOs that represent theemselves as a group that has the same objective. They can submit to the court an opinion in a certain matter in which they have very detailed data. Their specific role is to help elaborate multilateral conventions according to article 71 of the UN charter, and to have the status of "amici curiae" in international adjudication, they are observers without the right to vote (slide 44). slide 45 → proliferation of NGOs, it is better to be seen as groups instead of being fragmented Other possible actors International enteprises, transnational companies, multinationals The progressive recognition of roles went hand in hand with the progressive recogntion of companies. ICSID was established in 1965 with the Washington convention as a system that adjudjes disputes between invenstors Notes 35 legal committee, discusses legal issues. One part is the discussion of the report of the International law commission. How are the resolutions adopted? the rule is absolute majority, those that obstain aren't counted article 18 of the charter. In some specific resolutions thta need a bigger majority (election of non permanent members of the security council), around 2/3. Those who want to have a reform to increase the number of permanent members have tried many times to establish it with the 2/3 majority. Most states prefer not to participate in order to not be against a country → lavatory effect. In 1998 a resolution was adopted by the assembly: reform of the composition of the security council, 2/3rd of the members Its a duty of the chairman to try and achieve consensus, meaning the text has to be written in a way in which states are generally satisfied. Council of europe of 1945 = organization that deals with human rights regional organizations that followed up the formation of the UN: european union: is a step forward, a system in which decisions and acts are valid directly into the legal systems of the member states american states african states of 1963 Helsinki accords of 1975: declaration that represents the first attemot to break the iron curtain between west and east (soviet states). The first timid recognizion of the need to respect individual freedoms and rigths by the communist countries. It wasn't taken very seriously by international lawyers but an organ developed from it called osho Specialized agencies of the Un are a different thing There is a moral value in resolution, if a rule is repeatedly adopted and highlighted by different states it might become a rule of international customary law, since it's crystalized in the coscience of most states of the international community. Parallelism with the results of the COP: pledges are not legally binding, they are promises. A pledge is a brick towards the tranformation of the pledge into a binding decision as a binding legal agreement, within the the agreement itself. Difference between unilateral promise (binding, accepted by the international community) and pledge (not binding, a series of pledges may build a binding agreement, but we can deduct a rule of international law that is accepted even before the agreement). Paris agreement → obligation to try your best to fulfill a general pledge, if a state doesn't do it it would be considered a breach. non proliferation treaty of 1965 → nuclear states (obligation to not engage wiith nuclear power) are different from non nuclear states (obligation to negotiate in a progressive way their nuclear arsenal). Marshall islands breach this. many states are aspiring for an interpretation from the ICJ to clarify whats the content of the standard constituting the bench mark below which a state will be considered breaching the paris agreement. The ICJ hasn't decided yet, the obligation was worded in 2015 and the obligation was of diligence. Security council Notes 36 Decision are taken politically. From the era of the korean war until 1990 with the "armed attack" (aggression) of sadam hussein in quwait , the council wasn't operating. Every time decision were taken they were vetoed. With the fall of the Berlin Wall and the new atmosphere the council started cooperating again trough deliberations. The use of the veto vote decreased but it's still used, they had to be aware of the fact that the veto isn't the only way of stopping a resolution, the mere threat of a veto can stop a resolution from being adopted or can change the non-permanent member's votes. Since the korean war new elements were introduced (when a permanent member is absent or when they abstain that doesn't have the power of veto). 9 affirmative votes are needed, even if the 9 votes are from the non-permanent members → this is very rare and almost impossible because rarely the non permanent members go against the five permanent powers (6th veto). substantive matters the veto counts, in procedural matters veto doesn’t count. There are five basic regional groups: 1. western group 2. eastern european group 3. latin american group 4. african group 5. asian group The representatives have to be balanced. The main role of the security council is is informal consultation, which happens privately. The members can speak freely and negotiate without having people writing down what they say. When the draft resolution is ready, the council is ready to have the formal consultation publicly in a different room. The council provides three sorces of law: 1. resolutions adopted by unaminity or majority, there is a veto power on substantive matters, not on procedural matters. Double veto? Veto can be applied in the point of decision or question wether the resolution is procedural or substantive (not resolved) 2. the members don't reach an agreement on a resolution, they may say it's immature or incolve politics. In this case the document isn't binding and has the title of "presidential statement". They issue a declaration pronounced by the pro tempore president thta reflects the unanimous thinking and agreement of the members of the council. The negotiation is carried on in way in which all states have to reach a common final statement 3. When there is no agreement on issuing a formal conclusion or presidential statement, the members agree on demanding the president protempore of issueing a statement to the press publicly. Subsidiary bodies of the council: Sanctions committees → measures can be taken that don't imply the use of force, economic sanctions are an example. History showed us thta imposing sanctions on a state for example on the import of goods, only increased the popularity of the person from that country. Nowadays sanctions are put on suspected individuals directly, so the people that make decisions rather than the goods they export. working group on legal procedures of the council → most of the rules of procedure are still the provisional rules adopted in 1946 and 47. The groups consists of lawyers that meet regularly, they decide on interpretation of procedural rules In any resolution of the security council, the last point is "the council remains cease of the matter"? The number of matters the security council deals with is always increasing. A cetain proposal came out: we can believe those matters that the council hasn't discussed in the last five or six years. Certian matters are very politically important that they become relevant even if they are provisional. Notes 37 ECOSOC - economic and social council → organ that deals with social development in respect of human rights and more. The link of ecosoc with the specialized agencies of the UN (linked to the UN by a special agreeemnt) is peculiar. 55 members of UN IAEA → international atomic energy agency. They can control the non diversion of nuclar material in military arms. how to entervene → art 39 (prerequisiti), deve esserci un threath to peace of international community, dettati ddalla state practice (violations of human rights) provisional measures → art 40 → chiamare lo stato a cessare il fuoco, il security council ha molta discretion, dipende molto dalle parole (the use of words, use of shall instead of should) art. 41 → sanctions art. 42 → forceble measures: authoorization to use force for EX: resolution 678 agaisnt iraq in 1990, resolution against lybia in 1963 / specific enfercement measures EX impsoition of no fly zones in lybia / → breach of article 2 but is an exception, the other ones are art 51 (self defence), responsibility to protect and humanitarian intervention caschi blu → peace keeping operations → impartial, lightly armed, consent of the states in which they are sent Secretary general not only the head administrator, he intervenes in times of crisis and suggests solution. The opinion is generally respected. For some reason the term respected was that of 5 years, on rotation the secretary generals were from different geenral groups. Another practice ais thta of recongnizing two terms: in the first case, if there's no veto the secretary general is decided on 2/3rds of the assembly, but the real decision is in the hands of the security council → you have to have no veto from any of the permanent members of the council; in the second case Guest lecture: Florin Coman-Kund https://s3-us-west-2.amazonaws.com/secure.notion-static.com/153fe2b5-a433-4f11-bf70-6a9a45433a39/ International_dimension_of_EU_agencies_and_bodies_-_F._Coman-Kund_(Trento_4.11.21).pdf The international dimension of EU institutions, agencies and bodies = international dimesntion of gencies + technocratic bodies (specialized bodies that require a high number of expertees, there are more than 45). The main parameters are treaty law and intrnational legal personality. Are they specilized legal persons with a specific task or are they just bodies part of the EU? What are EU agencies? Concept Heterogeneous concept → decentralised (formerly regulatory agencies, there are almost 40 agencies in the fields of policy and financial supervision, tasks that have to do with implementing and regulating EU policies), CDSP agencies (deal with defence policies in the intergovernmental field), executive agencies (created by the commission), EURATOM agencies and others (they do not qualify fully as agencies but they carry out seocialized tasks). They have to be seen as "in between" bodies, they are created to help MSs in specific areas. Each agency has a management board with representatives of the commission and of the Notes 40 it works with law firms such as simmons & simmons in London legal support network for developing states TOPIC: the delegation from sri lanka asked the LRI team to start a research for legislation at all levels. Starting from 2019 there was attention to the link between climate change and children. In reference to the Paris agreement: children are mentioned in the preamble, but it was criticized mainly because it didn't talk much about individual human rights. "whereas" article 12 of the Paris agreement: in order to operationalize it the "action for climate empowerment" for institutioned, a streamline of actions focusing on the different parts of article 12 In 2019 an important delegation higlighted the importance to focus on children and climate change, not only on an international level but also on domestic level. Domestic national constitutions are the key points to improve, at level of human rights council a resolution was passed for the existence of an individual's right to a healthy environment. Pascal Bird and Kate Cook treaty law / domestic law (constitutional provisions and more not a report, just legislation and practice still well presented and formal Dispute settlements procedures https://s3-us-west-2.amazonaws.com/secure.notion-static.com/58cdf5ce-f3f7-45a3-beb3-65592fe75477/ Dispute_settlement_2021.pptx Recognition about the existence of an international legal dispute. Look at cases under this title o moodle. Nicaragua VS Usa Whole case → desktop https://s3-us-west-2.amazonaws.com/secure.notion-static.com/c8dd1316-3ade-4b4f-ae8a-9e46b1c6 ba8c/Summary_of_judgment_-_Nicaragua_v_USA.pdf When the ICJ works on a case they always first ask themsleves if they have jurisdiction on the judgement of the facts (this can be noticed in the documents published). https://s3-us-west-2.amazonaws.com/secure.notion-static.com/d38377db-f85a-40ba-8e81-cd9ea05b7c8 5/178-20200123-ORD-01-00-EN.pdf In Gambia vs Myanmar this is valid too but the case isn't closed yet. Is there prima face jurisdiction on the case? This prouncement is within the realm of the provisonal measures, still in the pending state though. prima face means the icj sees they have jurisdiction to entertain the case, so theya re in the position to ask the defendant to Notes 41 do certain things. to demostrante the intent of a state is difficult, so documentation has to be provided in evidence. The preliminary assessment about the prima face phase was made. Paragraph 16 of document. Gambia found the basis on article 9 of the genocide convention. Paragraph 20 is dedicated to the existence of a dispute? look for a disagreement based on a claim by a statethat another state has breached an international obligation owed to the former state (gambia and myanmar) this claim must be opposed or resisted by the latter state EX: through diplomatic exchange Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute → article 9 of the genocide convention , the ICJ states→ the court jurisdiction is conditional on the existence of a dispute, disputes between states exist when they hold clearly opposite views on the performance and non performance of international legal obligations. "the claim by gambia has been resisted/opposed by myanmar", in some way a certain contrast on the same facts and law has to emerge between the states paragraph 22 fact finding mission established by the human rights council before the case, to find out wether or not there had to be genocides in that country, Myanmar was opposing also on the foundings of the human rights council. Is dispute to be solved anyway? within the Un charter in article 33 ":::" obligation to seek a peaceful solution, it gives a list of means to solve the dispute called diplomatic means: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regionalagencies or arrangements, or other peaceful means of their own choice Chapter 6 of UN charter deals with peaceful means to solve international dipsute, do we have the obligation to solve the dispute in the first place? territorial delimitation example → disagreement betwen the sates, can they solve this dispute by bombing each other? No. First of all we need to negotiate. International law is not interested on wether states solve the disputes, however if they decide to solve the dispute they only have to do it trough peaceful means. One alternative is to use the operation of chapter 7 of UN charter, so witht he involvement of the security council because it is compunding the discourse of obligation to solve disputes peacefully. chapter 6 of the charter → diplomatic means of inter state dispute settlement: Negotiation → it means getting in contact with the other party, the first step to solve dispute is to attempt negotiation. When is it a serious negotiation, what makes a negotiation meaningful? States have to have a will to reach certian things while letting go of other things, negotiation means to try and reach compromises where parties have to let go of some of their ideas, they have to act in good faith. slide 5 → the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go trough a formal process of negotiation; they are under an obligation so to conduct conduct themsleves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it (continental shelf case). If the component of good faith doesn't happen, the negotiation doesn't happen. Notes 42 Good Offices /= Mediation→ slide 6 = the communication between states is more structured, so we have the involvement of a third party (individual, state or institution), the dispute can be solved with the help of this party. Attempt to put into communication the two other parties, there is a distinction to be made: good offices means that the third party is only a helper in communication, it doesn't get any other merits other than facilitating communication. When this doesn't happen the third party becomes more intrusive so it can propose a solution to the dispute, this is called mediation and the third party is given the merits. If this third paety enters into the merits of the solvement of the issue USA vs IRan : major diplomatic issue → hostage case. The ICJ doesn't really deal with compensation matters, so after the pronuncement of the judgement there was the mediation of the government of Algeria, a successful action thta was able to put the dispute to an end. This started the formation of a mediation tribunal. The mediation led to an agreement → Algeris Agreement: Iran should have been setting free the hostages, while the USA had to stop their countermeasure to freeze the Iranian citizen's assets and more. Enquiry /= Conciliation: slide 7 →many times there is the need to clarify certain techical issues of a dispute, for example in environmental law. In these cases there is the possibility to have a commission of Enquiry assisting the judges to define the technical issues, this can be stated in a statute and is an option the tribunal has in case of higly techical cases. The parties can have their own experts but many times opinions clash and the tribunal hires its own commssion. The outcomes of the commissions aren't binding themselves, they just serve the judges information. Sometimes the commssion can also address legal issues, that's when it is conciliation. These are all methods to help parties find a compromise and solve the dispute. The previous means are diplomatic, aarticle 33 doesn't stop at diplomatic means for dipsute settlement. Dispute Settlements can be done though adjudicatory means, so trough adjudication. Preliminary consideration → states didn't want to have a compulsory mechanism for law determination unless they want it to be there. It becomes compulsory only when you are in front of the ICJ after the states express their opinion. law determination in interational law: lack of compulsory mechanism of law determination state vs state adjudication private actor vs state adjudication international community vs private individual adjudication → international criminal responsability, individuals aren't only entitles rights but they have to respect obligations such as to not commit genocide. EX: Bernadot case In the westphalian mode of law there is a constant development. Everything is linked to new actors on the international scene, for example agencies. In many aspects the interpetation of the legal regime on the same issue is seen through different lenses and treated differently. slide 9 → law-determination slide 10 → law- determination in inter-state relations arbitration as the traditional means of settlement possibility of choice with regard to arbitrators and applicable law Permanent court of adjucation, different from the ICJ. It's an independent institution located in the Hague, a list of potential arbitrators that are needed in order to create arbitral tribunals in the disputes. More tailored, parties get to choose the arbitrators. It's not a permanent instiution like the ICJ , traditional means of solving international disputes, much less burocratic and more focused on the needs of states. Notes 45 government. The USA wanted to exclude the ICJ from having jurisdiction on this very important topic of use of force in international relations and in a topic that is very important politically. Paragraphs Paragraph 59. Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without lirnit of time for its duration, or to qualify it with conditions or reservations. In particular, it may limit its effect to disputes arising after a certain date ; or it may specify how long the declaration itself shall remain in force, or what notice (if any) will be required to terminate it. However, the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases. Paragraph 60. In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. The principle of good faith plays an important role ; the Court has emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms Paragraph 67. The question remains to be resolved whether the United States Declaration of 1946, though not suspended in its effects vis-à-vis Nicaragua by the 1984 notification, constitutes the necessary consent of the United States to the jurisdiction of the Court in the present case, taking into account the reservations which were attached to the declaration. Specifically, the United States has invoked provison (c) to that declaration, which provides that the United States acceptance of the Court's compulsory jurisdiction shall not extend to"disputes arising under a multilateral treaty, unless (1) al1 parties to the treaty affected by the decision are also parties to the case before Court, or (2) the United States of America specially agrees to jurisdiction". Paragraph 73. It may first be noted that the multilateral treaty reservation could not bar adjudication by the Court of al Nicaragua's claims, because Nicaragua, in its Application, does not confine those claims only to violations of the four multilateral conventions referred to above (paragraph 68). On the contrary, Nicaragua invokes a number of principles of customary and general international law that, according to the Application, have been violated by the United States. The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact that the abovementioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated. Therefore, since the claim before the Court in this case is not confined to violation of the multilateral conventional provisions invoked, it would not in any event be barred by the multilateral treaty reservation in the United States 1946 Declaration. Paragraph 76. declare that the objection based on the multilateral treaty reservation of the United States Declaration of Acce~tance does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984. Conclusions The UN charter is a multilateral treaty and the USA referred to it in their exclusion. The USA and Nicaragua are both parties of the case, but only the USA is party of the charter, so the objective of the USA Notes 46 wasn't reached. How did the ICJ solve this? Te highlighted paragraphs are the solution. Declarations of acceptance of compulsory jurisdictions are facultative, states are free to choose. In making the declaration the state is free to agree to the article unconditionally (copy and paste and without a limit of time of validity) or by adding conditions or reservations. Declarations are unilateral acts but at the same time they apply a series of bilateral engagements witht other states that declare the same thing (principle of reciprocity). Paragraph 73 is the conclusion → the legal basis of the initial claim of Nicaragua against the USA was both convntional and customary international law, since the principles breached asre also part of internal customary law. These principles (non use of force, non-intervention, freedom of navigation and such) aren't codified but they are still valid. The multilateral treaty isn't an obstacle to proceed with the case. Currently we have 70 declarations made by states both unconditional and reservated. 1986, deals with merits pronouncement https://s3-us-west-2.amazonaws.com/secure.notion-static.com/320ad923-9e3b-4ac9-ac00-06caee21033 f/Nicaragua_v_USA_.pdf slide 18- contentious jurisdcition, contentious proceedings before the ICJ: at the beginnig there is the request for provisional measures (prima face jurisdcition) , in the l grand ecase the object of the dispute was to prevent the inmated from being executed during the case jurisdictional phase, to decide wether or not there is jurisdiction provisional measures, merits phase, moment in which we enter into the facts of the case, was there a breach of a rule or an international international wrongful act. Question for reparation is asked and solutions are given (compensation, apologies, non-repetition of the breach). Judges pronounce the verdict judgement is binding upon parties to the disputes Article 94 of the UN charter specify that: security council Theoretically speaking the verdict of the ICJ is binding. What happens when a party doesn't follow the guidelines of the ICJ? Before anything happens it is decided on the basis of article 94 → "...the other party may have to recourse to the security council which may make reccomendations or ...." . The main reactions are countermeasures, different from retortions and from sanctions, and article 94 is very vague because it leaves a lot of space for the individual state to act. This vagueness also is necessary for political reasons. The USA has kind of a monopoly because they have power of veto in the security council, so this method would never be used. art 96 → advisory jurisdiction (kosovo) The responsability of states for internationally wrongful acts https://s3-us-west-2.amazonaws.com/secure.notion-static.com/aa553be5-434c-415b-b587-a15510a56ecb/Dr aft_articles_without_commentaries.pdf Roberto Ago was a professor from the university of Milan was elected as a special reporter. Notes 47 Primary rules → establishing the obligations of states Secodary rules, rules deriving from the legal consequences coming from breaching primary rules, these rules are contained in draft articles. This text is fully fledged and was adopted in 2001 but was worked on since the 70s. When the texts were adopted either on first or second reading. first reading: draft text → sixth commettee sends comments → IC adopts the text with the comments (1996) second reading: they might add extra reflections and comments, the text was adopted at second reading, after two sets of comments (2001) The responsability of states for internationally wrongful acts remained soft law but it's still very influential. Both international and national tribunals refer to it as a nonbinding text but things could change. The general assembly gave the ILC the mandate in the first place and the document was submitted to the national governments. The majority of provisions contained reflect customary international law. PART 1: When do we have an international wrongful act? slide 3 → history of the document distinguish between responsability and liability of states: slide 5 the liability issue: there are times in which states might have to pay to repair for a damage for a rule they didn't breach. When could this happen? In case of hazardous activities that are lawful. It could be the case of nuclear or space activities. The issue has been developed into sepcialised regimes (composed of primary rules) of strict liability that include international funds to cover expenses. Here material damage is a necessary element. In order to asses the liability procedure, material damages have to be produced. Different texts were adopted on liability: set of rules by the ILC on the allocation of Loss on the case.... Constitutive elements of a wrongful act slide 7 Who assesses an international wrongful act? Two entities: the international judge of the ICJ and the state itself. The states can self assess on their opinion wether which there was or there wasn't an international wrongful act. Article 2: Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. objective element → violation of a rule (slide 8) damage = a material injury is not an essential elemnt of wrongful acts. Material damage is economically assessible. In case of legal damages (EX: enter into the airpsace pf another state, there is no material damage), legal rules are breched without further material damages. Moral damages are more subject, it has to do witht he dignity of states. It's common that states breach diplomatic protection. There needs to be reparation also for this type of damage. every primary rule has to specify the need for a material damage for an assessment of an interntional wrongful act. fault = is it necessary? No, it depends on the content of primary rules. EX: The prohibition to commit genocide is a very clear example, within the rpovision itself, it has to be demostrated the intention of the state to target a certain minority or ethnical group in order to eliminate that group. This is the primary rule, an element of fault has to be present in order for the assessment of the brach of the very same rule. Majority Notes 50 An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. material primary rules that cannot be breached as a response: Article 50: Obligations not affected by countermeasures Countermeasures shall not affect: (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) obligations for the protection of fundamental human rights; (c) obligations of a humanitarian character prohibiting reprisals (reazioni di forza in response of a wrongful act, solved by use of self defense and countermeasures); (d) other obligations under peremptory norms of general international law. A State taking countermeasures is not relieved from fulfilling its obligations: (a) under any dispute settlement procedure applicable between it and the responsible State; (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents. procedural rules Article 52: Conditions relating to resort to countermeasures Before taking countermeasures, an injured State shall: (a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights. Notes 51 Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) the internationally wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith. propotionality element Article 51: Proportionality Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. Example Case: dispute settlement between USA and France called "Aviation settlement" (slide 3). The main issue was the legal basis. The planned new route had these characteristics: France stood for the employement of bigger airplanes that carried more passangers / the other party wanted to employ smaller airplanes starting from london (third party) France stated that the bilateral treaty provision didn't state that teh USA could do that in a third country / the USA said it was implicit → the two gave two different interpretations of the same text France said they should have consented to it, only after they recieved money from the USA / the USA considered it only an operational matter, not a threat to the validity of the treaty. In light of the text of the agreement the conclusion was that a third country change of gage was acceptable and in line with the treaty French authorities were creating obstacles in the normal course of flights, for example they didn't let passangers get off planes / the USA stopped all Panam flights from there to Paris The arbitration panel stated wether which the countermeasure was proportionate to the action of the french? Is there proportionality? (slide 4). Adjudging on this is very hard, the only way to do it is by approximation, not to do it in a mathematical way measuring the losses of each state. Approximation is an overall assessment of the injuries suffered by the people involved, even the ones that had different nationalities. The tribunal uses the term "approximate appreciation" to define their way of assesing proportionality. 📌 Countermeasures are different from retortions → Retortion is a response to breach, in itself there isn't a breach. EX: to not send american athletes in China for the winter olympics, there is no obligation for the american athletes to go to the olympics. The previous action could be a breach but also an unfriendly act. Retortion is much more political. (slide 12) Countermeasures have to be linked to the discussion of ius cogens and erga omnes obligations: the final and concluding article of the ILC text deals with: is it possible that non-directly injured states take countermeasures? injured state may adopt countermeasures (gambia and myanmar, gambia wasn’t injured) the problem of countermeasures in cases of violations of erga omnes obligations Notes 52 the compromise formula of art.54 ILC: the third state may take "lawful measures". It's a compromise formula: Article 54: Measures taken by States other than an injured State This chapter does not prejudice the right of any State (not injured), entitled under article 48 (invocation of state that is’t injured: what non directly injured state can do when there is a breach of ius cogens or erga omnes rules in international law), paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. = They don't use the term countermeasures but "lawful measures", what are they? One could be retortion, so a lawful unfriendly action in response to an unfriendly action. One other could be that the countermeasure becomes lawful, only then the state could adopt it. One other could be sanctions, onlt if the breached rule has to be erga omnes or ius cogens. It would be legitimate to apply embargoes and other solutions. The term is vague. The text of the ILC with commentaries, under this article, lists the embrionic practices (not fully developed, widely used or respected) applicable in this case→ this ensures progressive development of the ILC provisions. practice is not well settled Invocation of responsability (slide 11) → article 48 (ask for reparation) + 54 (ILC approach and doctrinal critiques): Article 48: Invocation of responsibility by a State other than an injured State Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non- repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1. Example Case: 1970 Barcelona Traction case: distnguish synallagmatic between erga omnes (states have an interest) Countermeasures in case of breach of erga omnes and ius cogens rules is customary international law. Notes 55 Responsibility to protect is clearly stated. We have at least a clear reference to Chapter 7. At the same time, reiterating the initial trigger still constitutes a dangerous situation: determining that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya ßdoesn’t have idea of change of government built within it. Responsibility to protect shouldn’t go beyond will of protecting human rights, in this case went and the practice stopped the application of it. Initially the relevant paragraph doesn’t mention art. 42, but there’s no need because when you refer to the wording ‘authorization’, we show we are within the framework of the authorisation by security council to intervene. Focus on civilian protection: 1. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; Much more on article 42 side even though making reference to the measures under art.41: non-forceable measures. Strict approach: reference to the previous resolution with more strict words (ex. Expansion of Asset freeze) Update of the list of targeted sanctions: not a review process. Also imposition of a no-fly zone has to do with art. 42 measures. Chapter 8 of UN Charter recognised important role of regional organisations. Importance of League of Arab States, which could consist in a collaborative element. They might choose to enact regional enforcement Peace keeping operation as an alternative to practice of art. 42. → Peace-keeping operations are controversial and major failures have happened to peace-keepers. Attribution of forces is the major key problem. Examples: Srebrenica 1995: 600 Dutch infantry were supposed to be protecting thousands of civilians who had taken refuge form earlier Serb offensives in north-eastern Bosnia. Attribution is key: big problem also in legal doctrine of international law. Somalia 1993 : guerra interna, massacre of 30 1973 → resoultion in Lybia - ammette utilizzo della forza (articolo 42 of forceble measures) No conclusive answer to the question but only a case by case assessment → attribution problem in relation to peace-keepers as stabilisers in conflictual situations. Example of practice of justification for the breaching of the violation of use of force in international relations. The limit of the responsibility to protect: no regime change should have been applied but it indeed happened in Libya and the practice stopped. Role of the international community s to assist the state in choosing its own for of existence. It was considered a case pf overreach: regime change was worldwide considered as a case where they went beyond the mandate of R2P. Humanitarian intervention and case of Kosovo in 1999: authorities intervene to protect Albanese people in Yugoslavia. Military intervention by nation wasn’t approved by a security council resolution and yet humanitarian intervention is regarded as a justification to intervene ßcontroversial, mostly because of absence of an international security council resolution. (slide 33-34) security council never formally authorised the intervention but at same time no condemnation ßpolitical backing and discretional decision of the members. Notes 56 Humanitarian intervensions are criticcal to the sovereignty of states → a 2005 resolution in the world summit of general assembly “resolution 60 of geenral assembly” → base or ground to the use of force for responsability to protect Self defence Last exception to prohibition to use force: self-defence, defined in article 51. If you look at the relevant provisions in the article: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” What is required is a state injured, a security council and the existence of an armed attack. Doesn’t say anything about perpetrator of the armed attack. First of all there must have been an armed attack Victim state regards the attack as requiring a response by use of force Immediate reaction to attack is justified by self-defence. Immediacy is indeed the element built in in the very idea of self-defence. You have to react immediately until security council has time to decide what to do Self-defence is main justification to use of force, until when security council comes into the place. By way of self-defence, reaction should be proportionate to the initial armed attack. Requirement of proportionality is not mentioned by art. 51 because it has been established in practice and opinio iuris of state, including within the institutionalised locations of the security council. Another requirement has been developed through practice and became part of customary international law apart from proportionality and immediacy: since is such an extreme reaction, also the requirement of necessity has been developed. You need to show it is the only way to defend yourself and show you are acting not just immediately and proportionally, but also with necessity. Problem is this is a situation difficult to understand but also easy, practice has been developed in a way where there are elements and facts that have been showing a further development, going beyond these situations. Armed attack First of all, definition of ‘armed attack’: in Nicaragua v. USA, ICJ appointed that ‘it is not an armed attack mere actions by regular armed forces across an international border; or the mere assistance of rebels in the form of provision of weapons or logistical or other support. Instead, it is an armed attack sending armed bands to the territory of another State.’ Usually although it’s just practice and self-assessment because states don’t usually ask for opinion of ICJ. Essentially you ned to look at practice: for example resolutions after attacks framing situation under self-defence (9/11). Article 51 gives two situations of self-defence: 1. Collective self-defence: in Nicaragua v. USA discussion before ICJ was indeed a case of collective self-defence: defence of USA was in collective with Costa Rica and El Salvador, which according to US had in their term suffered an armed attack from Nicaragua. Another example of codification of collective self-defence is art.5 of NATO. Procedural and customary international law condition, present in this judgement (reason why USA say Notes 57 was not upheld): for that to be a lawful reaction in collective self-defence, the really injured state have to ask for help (which didn’t happen). Is there practice broader than the classic functioning of the self-defence? Does practice allow relaxation of the criteria for self-defence? Can we say that nowadays practice has reached a point in which we have new ways of reaction of self-defence? Can we consider practice of custom international law the ‘anticipatory self-defence or preamptive self-defence? Only few states supported idea of a broader frame of self-defence, they focused on the imminency reaction. Imminency? One month later (7 October 2001) Sometimes is the anticipatory self-defence that has been developed. According to some states, because of the nature of some other states called ‘rough states’, a way to anticipate, even the occurrence of the armed attack or the finalisation of the conduct of the armed attack ßtrying to stretch the boundaries. It didn’t happen only recently ßOsiraq example of the nuclear plant in the 80s. Israel bombed the nuclear power plant in Iraq because they thought it was used to produce nuclear weapons instead of nuclear energy. They justified it as self-defence ßcondemned because in contrast with the charter. Condition of a sufficient threat is not enough: you need an armed attack that has already occurred. The SC has never been able to adopt a resolution similar to the n. 1973, for ex. to the Syrian case, because of the opposition of states like China and Russia. Art. 53, UN Charter = the SC may choose to cooperate ??? 1. While maintaining firmly the principles of sovereignty and no interference in the domestic jurisdiction of states, Kofi Annan asked the international community to start considering a way to respond to serious and systematic breaches of human rights (responsibility to protect). Three pillars of R2P: 1. responsibility to prevent; 2. responsibility to react (authorization of SC needed - no regime change); 3. responsibility to rebuild (re-establishing political institutions, assistance to administrative forces, …). Self-defence Art. 51,: UN Charter = nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a MS of UN, until the SC has taken the measures necessary to maintain international peace and security. Measures taken by MSs in the exercise of this right of self-defence shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Self-defence constitutes the main exception to the prohibition on the use of force in international relations. Conditions: under customary law, the reaction must be necessary (ex. to recover a territory or to repel an attack) and proportionate (to the armed attack - difficult to establish). During the Nicagarua v. USA case, the ICJ has claimed that it is not armed attack mere actions by regular armed forces across an international border, or the mere assistance of rebels in the form of the provision of weapons or logistical or other support. Instead, it is an armed attack sending armed bands to the territory of another state. Given the fact that self-defence is a response to the breach of the use of force (jus cogens), all states of the international community are in theory injured and should be allowed to intervene (collective self-defence). A third state could intervene militarily to support the state addressee of the armed attack. Procedural requirement: the latter need to ask for the intervention.