International Law - Definitions of International Law, Appunti di Diritto Internazionale

Scarica International Law - Definitions of International Law e più Appunti in PDF di Diritto Internazionale solo su Docsity! INTERNATIONAL LAW POSSIBLE DEFINITIONS OF INTERNATIONAL LAW AND SOURCES OF LAW International law is a process of making a set of rules produced by states addressed to states producing rights and corresponding obligations for those states. Are just state officials in charge of making and obeying the law, implementing, interpreting, and applying it? (what about private individuals?) International laws are usually made of Customs and Treaties (or conventions, agreements). Customs demonstrate that not only state officials make and apply international law. Customary law doesn’t function like other rules. It is not a closed set of rules. International Customs are the views of the states, made externally. (opinio iuris ac necessitatis). The opinion Juris might be found in statements made by ministers in the Un, or domestic judges, parliament works ecc… Rules in international law regulate the protection, management and exportation of natural resources having an international relevance (rivers like the Nile ecc). Since states aren’t human beings they regulate through state officials which are individuals that represent the state. State Y has to go through the diplomat y to treat with diplomat x to regulate it relations with State X. In order for the rules to be implemented in State Y system they have to be accepted by the internal organs of the state (international law becomes domestic when received). The interpretation and the application of international law (towards State X) it’s done internally in the State Y. STATE Y <------------à STATE X I I I I DIP. Y DIP. X The state usually agrees to use all the necessary measures to comply to the treaty. In order to the international law to be applied it has to be internalized. There might be a statute (of the parliament) that executes the treaty. In their own countries the states are sovereign so they are the link of the chain between private individuals and international law. As the parent is objectively liable of an accident on his propriety (of a child that comes to play with his). The states are internationally liable for what happens in their own territory: according to reasonable standards of care, of prevention, and due diligence. Every state has to take every legislative, administrative, executive measures to monitor prevent and control what happens in their territory. (for example the need of an administrative authorization to build a plant in a certain place, given on an evaluation of the environmental effects). A state must agree that in his territory will not be accepted any activity that might cause harm to other states (no harm rule). What are those standards of diligence?? One is the Enviromental impact assesment (standard for environment). That is a documentation of the effects of a certain activity (private electrical plant ecc); and the measures to prevent damages. States have a duty of prevention on economic activities, that may cause significant damage to a territory of another state. If a private company causes those damages state is liable on the principle that it has a duty of preventing this activity. Even if it’s been enacted a legislation that is appropriate for preventing. If a Private company doesn’t comply to these norms, the State hasn’t fulfilled its responsibility of due diligence because it didn’t enforce it appropriately. The state though is not objectively responsible (absolute liability) for the damage. If the state can demonstrate that it has taken all the appropriate measures to prevent, fulfilling its duty of due diligence, then the state is not responsible. The state is not strictly liable (there are few exceptions in specific treaties). If the state is not liable, then there is the civil liability of the private company. People that are damaged can directly sue the private company. But there might be conflicts of laws, in private international law. Which is the applicable law? (domestic law of Italy or France?) Which is the competent judicial authority? (Italy or France?) Laws state that the law and competent judge is the one in the State were the damage was caused. But sometimes it’s difficult to understand were the damage has occurred –es. Mechanic not repairing a car in a country and accident occurring in other country. That’s why States are trying to harmonize their private law. One example is The Lugano Convention of 1993, but no state ratified it. The convention said that in that case the plaintiff could sue in either country for civil liability, and the private companies should have compulsory insurance. Except for U.E. country international civil liability right now is not completely regulated. Usually the state judge doesn’t have an international rule, but it has just domestic law to apply. One case was Sandoz accident, there was a leak on a river, by a pharmaceutical company, that effected agriculture in France, Germany, and Netherlands. The problem was of negligence in controlling and having a prompt reaction to the accident and information duties (communication of the accident). Switzerland stated that it would take full responsibility of the accident. After the negotiation though it was decided that there had to be civil domestic decision. In one case it was called upon the European community court of justice that stated that for European law stated that the private could be sued in either country. The burden of proof usually lies on the plaintiff, but in international law the burden of proof is on the defendant! The State has to prove that it had taken all appropriate measurements and diligence. STATE RESPONSIBILITY: is a set of secondary rules (a rule regulating procedures, or organizational values) regulating the consequences of the violation of a primary obligation (a material obligation to do or not to do) of the state. State responsibility might be the one of taking all appropriate measurements to prevent damage. STATE LIABILITY: If there is damage despite all the diligence and measurements were taken. Then the State has the obligation to take all appropriate measure to mitigate the harm and consult and cooperate with the affected country. CIVIL LIABILITY: Sometimes that is not enough. There must be civil liability rules the people affected must be able to sue directly the private individual that caused the damage. DIFFERENT LEVELS OF POSSIBLE ACQUIRING AND DISTRIBUITING THE COMPENSATION. 1) State A gets the compensation from State B and distributes it to the damaged citizens of State A. The State has to be non discriminatory with the distribution, and that’s really difficult. [Estoppel it’s a general principle of law according to which one cannot take advantage of a contradictory statement that would create expectations on others (ex. Creditor that tells a debtor that he doesn’t owe him anymore, and then asks for the money The debtor cannot use the statement to be free from the debt.) It also means that if State A is going to compensate the victims for a 25% (according to its own law), it cannot ask State B 70%. State A cannot ask for more than he claimed before in its own law. At the time Treaty law was mainly there to specify and adjust Customary law to specific needs (to give benefits to some countries on principles based on customary law, ex. More Benefits to some country ambassadors ). Western countries claimed for 100, Russia wanted to pay 0, they negotiated and they settled with many Lump Sum Ex Gratia agreements. So on both sides after this case it may be said that either there was a custom on expropriation, or there is not. [Ex. Mexico started to expropriate oil companies, the USA said that Mexico was breaching international law, and had to pay for compensation. The Curdell Hull (secretary of state of USA) formula was Full (all the damage and loss of profits), Prompt and Effective (maybe not paying with money but with bonds that cannot be readily redeemed) compensation. This formula was based on the assumption that expropriation of foreign propriety was a breach of international law. But that was based on the free market competition.] Usually Courts call Customary law General law. - Where to look for to find customary law (practice): International Court of Justice (ICJ) European Court of Justice (ECJ) European court of human rights. Conventions, Domestic Judges, Legislative practice (works of the parliament). (The opinion juris is always to be found in international scholars and international judges). Who says that? Art. 38 of the Statute of ICJ provides for the sources of international law. The statute is in the Chart of the UN. It is a rule of recognition, it constitutes the organs of the UN. It is to establish it. The Chart is a treaty: negotiated, signed. International Judicial function. Law assessments is in principle entrusted to the international court of justice wihich is appointed by a political authority: The consent of the general assembly and security council (according to regional constitution of the UN, balance) There are few unwritten rules in the UN. One of them is that each permanent member of the security council has a seat in the ICJ. Art. 33 sets the principle of peaceful settlement of dispute: (read it). [In international law there are two ways of setting disputes 1) Adjudication: settled by the judge. In Domestic law adjudication is compulsory but at the international law level states must have signed treaties to bind themselves under the jurisdiction of an international judge. 2) Arbitration: contractual disputes, the parties chose a common arbiter, with a set of rules.] Jurisdiction of the ICJ might be established in : 1) Unilateral acceptance. 2) Multilateral or Bilateral Treaty that has a jurisdictional clause that says that the particular matter can be brought in front of the ICJ. 3) xxxxxxx (didn’t get it, it’s written in the charter about the ICJ). In the case of the ICJ every country may have a Unilateral declaration of acceptance of ICJ Jurisdiction which can settle the boundaries of the jurisdiction of the court (in which cases it may be appealed to it). The USA declaration of acceptance, was really complicated: They said that they would accept jurisdiction for any disputes except those whose settlement the application of treaty law would be required except the cases in which all the parties of that treaty would be a party of the dispute. This is because they didn’t want to be brought in front of the ICJ on the interpretation of a treaty unless all the parties were involved. Because they didn’t want to be brought before the court because of a breach of the Chart of the UN. The security council may give sanctions to nations. Single members have the veto on every decision. So the USA didn’t want the power to the ICJ to aplly the Chart of the UN, they wanted to keep it in the Security Council were they could veto every decision. General Assembly resolution aren’t binding, they are soft law. They might influence customary law. The purpose od the declaratioin was that usa didn’t want to be brought before the icj for the use of force, they wanted the security council to decide on that. In 1960s Soviet countries and non-allied countries controlled the General Assembly in the UN, they didn’t want to accept Customary Law as a source of law. In the 1970’s the ICJ didn’t have much power. Since customary law wasn’t recognized by Non-allied and soviet countries most of the cases were between western countries, or between non-allied countries, or soviet countries. After the fall of Berlin’s wall the situation changed, Soviet countries converted to th free market, and trading started to be developed in those countries. There was a rebirth of the Lex Mercatoria. And international customary law started being used everywhere. Art. 2 the banning of the use of force. 2) Treaties : Treaties bind only those that sign it. Customary Law is General Law because it binds all the States, even if they didn’t participate in the law making process. [Case: There has been a major environmental accident in Slovenia that spread it effects in Friuli Venezia Giulia causing damages. The Italian diplomat takes action against Slovenia, Slovenia doesn’t accept that action. Italy lodges a complaint. But Slovenia doesn’t answer. Can Italy sue Slovenia before the ICJ? One of the problems of the International law is the lack of a strong judicial compulsory system. In order to go before the ICJ both countries have to have signed a Unilateral declaration of acceptance of the ICJ as a common arbiter. If no Unilateral declaration of acceptance has been made. I can look for a bilateral agreement on environment (BIT Bilateral investment treaty). If there is such a treaty the ICJ can work on it. If there is no bilateral agreement; we could look for a Multilateral treaty. Sometimes though States are unwilling to give up their sovereignty. So usually diplomats and lawyers use jurisdictional clauses in Treaties. In treaties there might be an Article in which is written that the State may decide or not to be under the jurisdiction of a Court. Those articles may use two ways of doing it. 1) Who signs is bound, unless says otherwise. 2) Who sings is not bound unless they say otherwise. So that the treaty might be ratified even if jurisdiction is not accepted. READ CASES AND MATERIALS UNTIL PAGE 14 LIBRO CONSIGLIATO: GUSTAVO ZAGREBLSKY: “INTORNO ALLA LEGGE” WHO INTERPRETS AND APPLY INTERNATIONAL LAW? International Court of Justice can be appealed for: 1) Interstate Disputes (Contentious jurisdiction). The security council can enforce decisions of the ICJ 2) Adivsory opinions: (Requiring majority of the General Assembly appealing) Those opinions are recommendations. Sometimes advisory opinions are politically used to get a State to stand in front of the ICJ for the settlement of a dispute independently from the acceptance of the ICJ jurisdiction from that state. The ICJ can be appealed to by States. THE IMPORTANCE OF NEGOTIATION Negotiation is important in international law. There can be negotiation after the plaintiff and the defendant stood before the ICJ, and even before that. Sometimes negotiation is had before appealing to the ICJ. In order to decide the way the appeal will be drafted. UNITED STATES AND ICJ Nicaragua case. After the Nicaragua case, in 1985 the USA withdrew their Unilateral Declaration of Acceptance of the jurisdiction of the ICJ. East Timo East Timo is an island next to Indonesia, is really rich with oil, and it’s been under the colonial sovereignty of Portugal. In the process of decolonization Portugal had the duty to gradually bring East Timo to political and economical independence. But Portugal didn’t do much about it. And East Timo fell under a Dictatorship of Indonesia, the dictatorship of Indonesia started exploiting their oil provisions. Indonesia was illegally excercizing sovereignty on East Timo, and got into a bilateral treaty with Australia to exploit the oil paying royalties to them. Australian companies for many years kept exploiting the oil resources of East Timo. Portugal was still under the duty of the UN to gradually make East Timo independent. Portugal brought the case before the ICJ for breaches of the international law: 1)According to the self-determination of people. (customary law, that is fundamental for ex-colonial people that is part of the Jus Cogens). [A treaty in contrast with the Jus Cogens is always void . Things like the prohibition of slavery, genocide, torture, the use of force and self-determination are part of the Jus Cogens, that cannot be contrasted by treaties.] If the ICJ would have decided against Australia exploitation the treaty with Indonesia would have been affected. But Indonesia wasn’t under ICJ jurisdiction. [Under art. 108 of the Chart of United nations the amendment needs ratifications of the 2/3 of the member states and the consent of the 5 permanent members. Most of the application and interpretation of treaties INTERNATIONAL ENVIRONMENTAL LAW ACCESS TO JUSTICE FROM CITIZENS: THE 1998 AARHUS CONVENTION 1998 Aarhus convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’. What can citizens that are threaten or damaged by toxic fumes or waste from another country. Signed by European Union, countries of the UNECE region. Entered into force in 2005. Every 6 months there is a meeting of the parties on environmental law. The meeting of the parties is the administrative power of the convention. The three pillars of the convention are the rights of single citizens to: 1) Access to information Environmental Matters. 2) Public particisation in decision-making. 3) Access to Justice in Environmental Matters. Usually conventions bind States and only states can appeal to courts using it. This convention works on a vertical way: Some criticized it because it doesn’t guarantee the substantive right of single people to live in a healthy environment. The UK upon signature said that article 1 (about right of living in healthy environment) is not substantive right but it’s an aspiration. 1) ACCESS TO INFORMATION Any citizen can access to information without the need of a specific interest. The p.a. should public informations to the public in the event of an imminent threat to human health. 2) PUBLIC PARTICIPATION IN DECISION-MAKING The p.a. should inform the interested public and the public has the right to comment. If a public authority has to build a motorway, people that live around it have to be able to participate in the environmental impact assessment commenting on the construction. Sometimes citizens have to go before courts after the construction started because they didn’t know about it or didn’t have the chance to express their opinion and that doesn’t allow the possibility of stopping the environmental damage that has already occurred. So it is granted to participate before the construction starts. The p.a. isn’t obliged to give the choice to the interested people but they have to anyways take into account their comments. 3) ACCESS TO JUSTICE (Art. 9) It’s the most important pillar. It imposes threefundamental review procedures accessible to the public: a) Internal review rocedure (domestic judges) in force of the right of information. b) Internal review procedure to when there is an abuse against the right of public participation. c) The right of members of the public to sue another member of the public on basis of domestic environmental law. PROBLEMS OF THE CONVENTION 1) Who’s a member of the public??? The problem is that it is the STATES that decide who is a member of the public! Netherlands: any person (no interest to be shown), Italy: (list of NGO’s contained in a ministerial decree), Switzerland (NGO’s founded 10 years before the law suit). Belgium (any person that can show a personal and direct interest). So in many states single citizens can’t legally access to justice. 2) Procedures are really expansive even if there’s legal access to justice. 3) The length of proceedings in national states is around 10 years. The damages caused by environmental abuse are hard to be compensated. NON-COMPLIANCE PROCEDURE If States don’t comply to the convention. It is non-confrontational, non-judicial and consultative in nature. The Compliance Committee is composed by experts and not state parties. It is the committee that decides on non-compliance. Who can appeal to the Compliance Committee? 1) State. 2) Any member of the public without an interest to be stated may submit a communication to the committee. So the public can trigger the mechanism of the Committee. Before doing that though public must have gone through all the domestic remedies. What does the Compliance Committee do? The committee adopts a recommendation. The EU hasn’t implemented yet the third pillar of the Aarhus convention. And the ECJ has a restrictive interpretation of art. 230 on recognition of NGO’S. PROBLEMS OF THE CONVENTION Few members of the public are aware of the Aarhus convention. Judges don’t know how to handle access to justice in these cases. Some of the provisions about access to justice may not be self-executing (A self-executing treaty is a treaty which once receive through legislation can be applied. A non self-executing treaty is a treaty that needs accompanying legislation (ex. A treaty that says that terrorist crimes must be punished severely, cannot be self-executing because it would be against certainty of criminal sanctions, it needs a law that says terrorist acts may be punished xxxxx more than usual crime, or a more specific sanction). RELATIONSHIPS BETWEEN CUSTOMS AND TREATIES TREATY AND LAW IN ACTION One of the problems of International law was the denial of recognition of customary law as a source of law. Art. 38 UN Chart: International custom: as evidence of general practice accepted as law. In what respect the opinion juris sive necessitates differs from the Consent of treaties? In the traditional view there was a difference. Soviet lawyers followed a volontaristic approach to law. Law was only an effect of the will of states. Customary law wasn’t a different source of law, but it was different from treaties. So it wasn’t law. Acceptance is not mere Opinio Juris. Acceptance involves a principle of will! This provision was drafted in 1919 when there was a volontaristic approach to the sources of international law. Another difference might be written vs. unwritten law. The line dividing customary law and treaty law depends on the views of the different nations. In the past decades there was a lot of the customary law which was codified into treaty law. Even the Countries that have a volountaristic approach have an interest in considering Customary law as international law that is more general and vague. [For example in Natural Resources International law there are principles: The no harm rule and the equitable utilization of natural resources. Those are basic general customary rules. When those have been codified in Treaties (New York convention in 1997) . Those principles before codification were considered as law, in the process of transcription of these principles. The drafters tried not to undermine their generality (which means vagueness). Why is it favorable to keep these principles vague and general? The problem is that any clear cut provision would be really difficult to be approved and signed by Countries –for example who’s an upstream Country and who’s a downstream Country-. Those are frameworks provision and have to be used on a case to case approach.] Customary law becomes then a framework law, which is necessary for countries to have a larger scope of application. As films are made of photographs case law might be considered as a photograph that comes from and makes customary law. Treaties don’t have the capacity of a dynamic approach to law. Customary law when is applied as law by courts is binding for the parties, it becomes hard and fast law for the parties. The bindingness of a court decision comes from the jurisdiction that it is given to it by the consent of the state parties (through a treaty) so legally that decision could not be binding (according to a consent) for third parties. But it constitutes a part of customary law. RELEVANCE OF TREATY LAW IN THE ASSESSMENT OF CUSTOMARY LAW An international Treaty just as much as an ICJ decision has two sets of legal effects: 1) Binding between parties because it constitutes obligations between the parties. 2) For other parties it is not binding in principle but it might constitute an indication of Opinio Juris. In the tacit agreement contest treaty might be an evidence of general acceptance of a principle[Ex. If an arbitrary decision and a judicial case might allow a party win a dispute. If there is a treaty between other parties that is about the case this might make the difference, because it is viewed as an evidence of general acceptance of a principle. But every mean used has to be evaluated by the judge in the specific case.] Treaty become even more important when it’s the UN that has engaged in the process of codification through a treaty. There might be works during the drafting process by different bodies of the UN containing comments theories ecc. Sometimes some countries even knowing that they’ll never become party to a convention are really proactive in the negotiations (at the UN level for example). The reason of this behavior is that countries are considering the side effects of a treaty, that it might have as customary law. If countries did have an opinion on the matter nobody can use the tacit consent principle. The binding force of Customary law is stronger when reproduction of the same wording is found in many different treaties, or judicial decisions. CASE: DENMARK AND NETHERLAND VS GERMANY The principle of equidistance in territorial waters draws an imaginary line in between seas for the belonging to a nation. Now the use of equidistance in this case, would have left Germany with a really little territory, because of the cone between NL and DK. Soft Law can also be used to interpret actual treaties. It cannot be used to interpret customary rules, because customary rules cannot be interpreted. Soft law becomes a part of the customary rule. Soft law is not legally binding as such (per se), its text might be because if it recalls other treaties or a customary rule, but formally it is not legally binding. Even a text that has been negotiated with the purpose of becoming a treaty, it is not considered such until it’s signed. ADOPTION OF TEXT BY CONSENSUS VS CONSENT Consensus is simply the lack of objection, a provision is adopted without any state objecting it. It is a collective attitude (not the will) which is not objectional. [ex. A text has been negotiated for a while, then the chair considers the text ripe for approval, if there are no objections the text is adopted] It is not a unanimous acceptance of the text. [What happens when there is an objection? Sometimes a country that has problems with others might fear that a specific provision might suggest an interpretation of a rule that wouldn’t be in favor of their dispute, or political situation. If the delegations object, they request a voting procedure instead of the adoption by consensus. Consent is an expressed will to create a legally binding treaty. It is the will of a state of accepting a convention. INTERNATIONAL TREATIES (Read Vienna Convention on Law of Treaties) International treaties are really similar to contracts. They are based on the principle: pacta sunt servanda. When a treaty is signed and the consent is given, it cannot be unilaterally taken back. That’s the difference between a legally binding text and a non-legally binding text. Non-legally binding statements for example might be changed with another statement (unilateral statements), even if it has to be done before breaching it [a country must announce it changes its mind before acting against the old promise]. The will of a state might be expressed in many ways, note verbal, answers, etc. ADOPTION OF TEXTS Art. 9 The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up. In diplomatic conferences the conference decides how the text is adopted. What is the legal value of an adopted text? The adoption of a text doesn’t bind the contracting parties. Art. 11 is not clear about the expressing of consent. There are lots of ways to express consent, pretty much any type of expression. Signature and ratifications are on the same level, but it is not like that in many states (Like in Italy, art. 80,81 Cost.) What happens if there’s no ratification of the treaty By the parliament? Is the treaty binding? RATIFICATION ART.14 Ratification is required when established in a treaty. ART. 7 WHO MAY NEGOTIATE TREATIES? A person is considered as representing a State in the adoption of a treaty if he produces appropriate full powers. Even if they don’t produce full powers: heads of States, heads of government etc.. ART. 46 COMPETENCE TO CONCLUDE TREATIES AS STATED IN INTERNAL LAW Internal law can be invoked against a treaty signed by a person that didn’t have competence only if it’s a fundamental law. This means that there has to be a fundamental (constitution for example) law that says that person cannot sign a treaty, or that treaties can be signed or ratified in a certain procedure by certain individuals or political organs. If a State though has had a conduct that would be considered as having acquiesaced uin the validity of a treaty, the treaty is anyways valid (for ex. A State that has agreed or paid for the military base to be built, and then says it doesn’t have the obligation of letting soldiers come). This treaty might be used in internal courts with analogy. For example if a government signs a treaty and a private has an interest in the validity of the treaty, the state cannot say the treaty is not valid. [THE TINOCO CASE Costa Rica issued some bonds. There was a change of government in Costa Rica. And the new government said that those bonds were not valid, because they weren’t issued by them. But the theory of personality and continuity of state (which says that even with a change of government or legal order obligations taken remain on the state) doesn’t allow that. The Costa Rica bonds were still valid.] ART. 53 INVALIDITY OF A TREATY for contrast with JUS COGENS It has been for years considered really important in Vienna convention. A treaty might be invalidated if it goes against the Jus Cogens. Jus Cogens are general norms of international law that are peremptory, which no derogation is permitted and that can be modified only by a subsequent norm having the same character (A sort of higher, or stronger, harder law –like a sort of international constitution). Ex. Of Jus Cogens: norms against torture, norms on basic fundamental rights. ART. 66 PROCEDURES DOR JUDICIAL SETTLEMENT ARBITRATION AND CONCILIATION If a treaty is considered invalid by a State, the State may go before the ICJ, to settle the dispute. But that can be done only if the treaty is in contrast with Jus Cogens. In any other case States have to come to an agreement, or at least agree to submit the dispute to an international court. So there is compulsory jurisdiction of the ICJ if the treaty is in contrast with Jus Cogens. But only a state party to that treaty can appeal to the Court. SOFT LAW: Has a two ways influence: 1) Influences and builds up Customary Law. 2) Might be the basis on treaty law. One of the reasons why Countries are so cautious even with soft law provisions is that according to the Customary Principle of Good Faith a Country that has accepted a provision (even a soft law provision) should not contradict previous statements, both with contradicting statements or behavior. [PRACTICAL IMPLICATION AND PRODUCTION OF SOFT LAW In the UN there have been many researches by doctors, engineers and economists on the price on health of a highly polluting transportation system followed by a draft . There also was the need of a lawyer in the committee that would guarantee that there weren’t any legal problems with the provisions taken. But it happens sometimes that even without legal problems the political will of a State is against it. Another case is the Aarhus convention in which art. 15 says that State parties should promote in international settings the principles of that convention. In practice this means that in a setting in which a treaty or a soft law convention is discussed states should bring up those principles and try to enact provisions that work according to them. This provision was re-discussed because it was too general. It was also important to have a compliance committee. Compliance committees are usually triggered in three ways: 1) Self-referrals of a State: State asks for help to implement the convention in its own state. 2) State party for another state party that is not complying. 3) Self triggering of the Committee.] JURISTIC PERSONALITY OF STATES The acquisition of juristic personality of companies in domestic law is regulated by a piece of legislation. There are certain procedures in order for a company to acquire legal personality (like registration ecc). When it comes to the recognition and acquisition of juristic personality of a state there is a problem. Because at the international level there is no hierarchy no legal order that is able to decide how and when a state can be recognized. The creation of a state is more a matter of politics, practice and fact. In order to be a state you have to have a people, territory and sovereign (control over the territory), these principles work according effectiveness. But who is to recognize these elements as effective or sufficient for the creation or recognition of a state? Recent creation of states are for example with the former URSS states or Ex Yugoslavian states. RECOGNITION States are such when recognized. Usually new states come out of secession. In art. 1 to Both covenants, about the right of self determination of ethnic or other groups, implies or not that those people have the right to secession? States would never regulate a way of desegregation of themselves. But sometimes some groups (like Kosovo) claim the sovereign of a territory and people. The international community has tried to answer the question if the creation of a state depends on legal matters or effectiveness. The creation of a state certainly comes from social events. But there is a need of recognition. But is recognition constituent (can just recognition make a state?) is it a part of the creation? Does it have an emphasizing effect? If a community declares its independency, and a number of state recognize it is it enough? Recognition is not just a formal constituent. China in the 60s was effectively a state. But it wasn’t formally recognized by the USA. But nobody could say that China wasn’t a state, or wasn’t a state for the USA. should be done, or something shouldn’t be done. A legal system is there whenever there are expectations of a behavior. If there is an international constitution what is it? Where can I find it? Constitution doesn’t need to be codified. The international constitution is the set of written or unwritten rules that regulate rules of conduct of states. Rules of customary or treaty law making. (Vienna convention on treaty rules for example). Who made those constitutional rules? Hans Kelsen would say that consuetudo sunt servanda is the grundnorm. But who is a state? To whom the consuetudo sunt servanda (since they are servanda to states?) There must be a rule on who’s a state. On who has the sovereignty. What were the basic pillars of international legal system? (Before the 20th century) - Sovereignty - Equality of states - No interference of other states. - The right to declare and wage war. 1945 - Sovereignty - Equality of states - No interference of other states. - Charter of UN art. 53 of the Vienna Convention - Jus cogens. 2) Sovereignty: States have sovereign over a territory. It is a model that is opposite to the imperial system, in which states would recognize a superior authority (church or emperor). There is no higher legal authority than the States. Sovereignty means also a certain degree of independence. How do we reconcile the fact that there is no higher authority than states but there is international law? This can be reconciled with the fact that it is the States themselves that produce international law it is the states themselves that give up part of their sovereignty, So the final source of international law comes from the Sovereignty of the States. It is the States that decide to constrain their own sovereignty through their own authority (sovereignty). This happens through treaties, or customary law. Those come from the States themselves. If a State doesn’t want to get into an agreement is not bound to do so. Nor is bound to follow a conduct that produces customary law. [ It is for example the case of the persistent objector: a State that objects from the beginning to a customary law to be created. This though is a very rare case. In international customary law creation there is a mutual interest. If a regional group of States would not subscribe to the creation of a customary rule (through practice or opinion juris) it wouldn’t be bound. There are also examples of the creation of regional customary rules.] States are entitled on the right of non-interference on domestic affairs from other states. 3) International Community: States accept to constrain their sovereignty in order to have peace and security at the international level. There is an international interest on peace and security because a war for example effects the whole international community. Compulsory jurisdiction of the ICJ is a method that helps the international community to protect general interest. Not just the parties of a treaty can appeal to the ICJ to have it applied when there is a breach. Every member of the international community can appeal to the ICJ through the principle of reciprocity. The question is: Should there be an institutionalized method of adjudication that is sovranatural. If just the states can appeal to the Court, how can the general interest be pursued? LAGRAND CASE USA transmitted the order to the person who had the power to decide the execution. The person was obliged to due it, he is fine with its duty. Problem of interpretation of treaty : article 41 ICJ Statute. Article 41 : the Court should have the power to indicate … any provision or measure which ought to be taken … = the power to adopt the measures pending the judgment, while the ICJ is dealing with the case Both of the parties tried to have a reasoning in favor of their own position. Germany said conection with 94 UN Charter and article 41. Any provisional measure is binding. USA took the opposition, to say that it was not binding. Peculiar situation of the country. They did everything to do because they do all the could to comply with international obligation. He did everything so he can’t be responsible for the murder. Citizen german murdered in USA. Germany wanted the suspension of the execution. Diplomatic protection by Germany towards its citizens. Germany decided to intervene in favor of its citizen. Customary law. EXAMPLE of DIPLOMATIC ACTION !!! (examination) Provisions measures are absolutely binding : the Court has to make an effort in order to interpret the terms of article 41. Viena Convention treaty interpretation. A treaty shall be interpreted in good faith, in accordance .., to the terms of the treaty and the ordinary meaning of the provision… à way to interpretate a provision in a treaty . General rule of article 31. Example of codification of general custom !!!!!!!! Examination of article 41 in French and English. 2 # texts, the translation is not the same ! Is it binding or not ? Is it a legal obligation or not ? Article 33 paragraph 4 Convention of Viena to solve this problem of interpretation.” When a comparison of the text discloses the meaning … the meaning ..” To have a look of the mainframe work. In light of the other provisions, what the aim of article 41 ICJ Statute. The final judgment should be effective. How judges apply international law. Problem of article 94 : “each member of the UN undertakes …” “decision” = meaning any decisions or only judgments ? It does not matter because it does not interfere with article 41. ICJ concludes provision measures are binding (1999 march was binding). USA was responsabile for having violated the provision of Viena Convention, provision in article 36 with bound germany , USA and other States. USA breached that provision à responsible This an inter state dispute. Germany asks for excuses + material damages. INTERNATIONAL RESPONSIBILITY What happens when an international obligation is breached ? There is no authority higher that States in the international system. (ICJ is based on the consent of the States), there is no legislator higher than the State à lack of the authority higher than States. (peculiarity of international law) The general rule that is to be applied when the breach occurred is called “sealf head”. What is the breach, an international wrongful act ? Draft article 2001 of h responsibility of State in wrongful Acts. That could become later an international convention . Not Yet !!! It is still a soft documents = it does not contain binding rules yet. ILC web site !!! It contains measures having looked of the practice of the States. Article 2 For wrongful act : we need a breach of an international obligation. It does not say treaty, or custom , it is general ! Primary rules = Treaty rules, customs, material rules (OIL Convention for environmental law), they create obligations for State # Secondary rules = (draft article ) they say what happens, they say the consequences of the primary rules. What do we need to verify if we are in presence of wrongful act ? Damage is a necessary element to have a wrongful act ? NO ! What is important is a breach of international obligation, it does not matter if the violation creates at the same time a damage. Ex: 2 States A and B have a Treaty on Aircraft. Air cannot go in the other State, if this happens there is no material damage, but there is a violation of the treaty. 2nd element : we need a State organ with its official capacity engages the State. What if the State organ acts ultra vires ? (extra of his power) The State is still responsible ! Article 7 Detention of American diplomats in 1980 by Islamic students à private individuals committing an international wrongful acts. Iran can be responsible for this Act ? Considered as private action. right to appeal. Who reviews that list? Which institution can be appealed to? Public international law vs Domestic law. BEHERAMI AND SARAMATI CASE BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS European court of Human Rights is an international (regional) court based on The European Convention on Human rights. [The Ecj and Court of European Communities, are based on the Mastricht, lisbona and other treaties that constitute EU and European Communities.] 1) Admissibility requirements: those are the requirements needed in order to admit the application, on procedural bases. One example is that all local remedies must have been tried before the application. Can a citizen appeal to the European Court of Human Rights. [If a citizen of Italy is arrested in Germany and not given the right of councilor assistance, Germany is internationally responsible towards Italy for the breach of an international obligation. The problem is that Italy could give up its right for compensation for example]. The Rome convention though says that any person (not only citizens of the state parties) can appeal to the Court and sue any country party to the convention. Germany said that the case wasn’t admissible because the facts happened outside their territory. The court referred to the law on state responsibility (attribution to a State of a wrongful act in breach of an international obligation). Art. 5 If the conduct has been carried out by an official that is actually under control of another state, The other state is responsible. The main legal point of the case is if there is or not an effective control over the state officials involved in the wrongful act. MR BARHAMI vs France: He’s lost a son, and the other was seriously injured and became blind. Eight boys playing found some bombs, and were injured in the explosion. This happened in March 2000. May 1999 there had been a NATO bombing the area. In June 1999 the Security Council authorized member states of the UN to provide measures for the control of the territory and maintain the peace (military control). This territory was under French control. State authority should be in charge for preventing damages caused by possible unexploded bombs. There should have been a demining operation. Or at least an enclosure of the land. MR SARAMATI VS FRANCE NORWAY AND GERMANY Mr Saramti was arrested with the charge of being involved with paramilitary activity. He was detained and later the Supreme Court decided to release him. He was arrested again; but there wasn’t a formal notification. He was called to collect his belongings and he was arrested and detained. The arrest was issued by a commander. He said that his right of habeas corpus hadn’t been guaranteed. [Habeas corpus: the right to recur to a judge for an illegal arrest]