International law klabbers - prima parte, Sintesi del corso di Diritto Internazionale

Scarica International law klabbers - prima parte e più Sintesi del corso in PDF di Diritto Internazionale solo su Docsity! 1 – Setting of International law Private international law regulates individual conduct with a transboundary element, public international law is often said to regulate relations between states. Many of the rules of international law have an effect not only on states but also on other entities, like international organizations. All international lawyers utilize some kind of theory of international law. This can be highly pragmatic IL should be regarded from that perspective as a technical discipline, providing the tools for statesmen. Or it can be a highly sophisticated and politically self conscious theory IL viewed as a beacon of hope. Or it can be a nationalist theory that starts with national self interest IL is often viewed as an intruder. Whatever the lawyer thinks, will be based on an underlying set of ideas and assumptions about what the function of international law is and what role it should play IL cannot be portrayed as politically innocent. 17th century By general acclamation, the history of modern IL is usually said to have started in the seventeenth century. It stands out for a variety of reasons one of these is that for the time preceding much of Europe tended to be organized in large empires, and people tended to thing of their empires as single entities. The most relevant reason why the seventeenth century stands out is that in the year 1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years’ War. It was agreed to confirm an earlier arrangement emanating from the 1555 Peace of Augsburg, with the effect that Europe would be divided into a number of territorial units each of these could decide for itself which religion to adopt: “cuius regio eius religio”. The result being the creation of sovereign states and the birth of the modern state system. What made the state dominant was that it had the authority to live up to its commitments, by controlling territory. The second important event was the publication in 1625 of Hugo Grotius’ On the Law of War and Peace. Among Grotius’ innovations is his notion that all people have a right to trade consequently trading routes, such as the seas, ought to be free as well. It is sometimes suggested that Grotius is the founding father if IL but this claim is untenable: - IL was not invented by a single person but grew out of the interactions of states and the commentaries of learned observers; - if there where a single creator, then there are a few other serious contenders: Suarez and Vitoria. Vitoria was instrumental in devising the moral justification for the creation of a legal system that would facilitate the spread of global capitalism. De Vattel was the first to have written a comprehensive manual on IL. However Grotius main claim to fame resides in two circumstances: 1 – he forms a bridge between the classic naturalist way of looking at law (law is not made but found, it exists somehow in nature) and later positivist theorizing (law is man made). 2 – Grotius may have been the first to present a synthetic comprehensive vision if IL. Colonialism Freedom of the seas allowed freedom of discovery and freedom to trade. These freedoms presupposed that certain rules were considered to be in place in order to regulate relations with the “natives” in continents such as the Americas and Asia. Among these rules was the rule that territories found overseas were to be regarded as not having been subject to sovereignty (terra nullius) stumbling on the territory the European powers could proclaim that those territories belonged to them. For purposes of establishing sovereignty, the local population was often ignored, but for commercial purposes their consent was deemed vital, at least as an argument to convince competing European powers. The non-European world was divided between two of them. In 1493 a papal bull (Inter Caetera) drew a line through the Atlantic ocean territory to the west belonged to Spain, while Portugal claimed territories to the east. They met again in the Pacific Ocean, which resulted in the Treaty of Saragossa (1529). Toward the end of the sixteenth century, England and Holland emerged as maritime powers. The Dutch in the 1602 created the United East India Company (VOC) and assigned it a trading monopoly. The VOC came to exercise delegated governmental authority: it could acquire and administer territory, declare war and seize foreign ships. In 1603 it provoked an incident with Portugal, when the Dutch seized the Portuguese vessel Santa Catharina. In order to legitimate this act the VOC asked Grotius to write on its behalf “Mare Liberum” in which Grotius argued that the high seas were not terra nullius but rather terra communis and so not susceptible to sovereignty. This led to English protest they insisted on the exclusive rights to the high seas around the British isles, advocating the idea that states could generate maritime zones. Only in the seventeenth century the Dutch came to accept this position this signified that the British had become too strong to resist. IL also played a marked role when it came to slavery, first by allowing it, and later by arriving at a prohibition. The prohibition was followed by the colonization of Africa. Global economy If colonialism was about trade and economic gain, this should be sufficient to suggest that international law is one way or another connected to the economy. (WTO, International Monetary Fund) Grotius had advocated free trading routes not so much out of a love of freedom but also because free trade would bring enormous economic benefits. Faced with the possibility of economic profit, states have been less than fully obedient to the classic non-intervention principle. Much of IL is related to the economy, it is in part the legal system regulating the global economy. The rule of law served to create legal and economic certainty. IL, as T. E. Holland had noted in the late 19th century, was effectively private law applied to public actors law of treaties (contract law), law of responsibility (modelled on tort law), dispute settlement (civil procedure). Only criminal law remained missing IL does not emanate from a single sovereign authority. In a world of sovereign equals without overarching authority, it is difficult to think of criminal law to begin with. Over recent decades, IL has also come to embrace a version of criminal law, with a twist in international criminal law the central actors are not states but individuals. Even though states cannot be imprisoned, there is no obstacle to sending individuals acting in the name of the state to prison. International legal system The absence of a single overarching authority is perhaps the most noteworthy characteristic of IL. For those who insist that law is only really law if and when it emanates from a sinfle sovereign, IL cannot really be law. Positivist thinker John Austin considered that IL can be seen as a “positive morality”, more or less binding but just as a matter of morality. Austin’s point has struck a chord, how does IL function if it has no sovereign authority? Louis Henkin wrote that “almost all nations observe almost all principles of IL and almost of their obligations almost all the time”. Since states themselves make IL they have little incentive to break it. There is also bureaucratic inertia. The implementation and application of law is very much a matter 34 If IL wants to continue to have something meaningful to say about the conduct of international politics, it will need to adapt itself to the changing world. Ethics and IL It is sometimes claimed that IL is not very ethical. The main problem nowadays is not so much that IL and ethics have nothing to do with each other, but that different conceptions of ethics of IL compete with each other. While one can interpret the Arrest Warrant case of the ICJ as a defeat for human rights (the Court held that a Congolese government minister was immune from prosecution despite his possible involvement in human rights violations), one can also interpret it as a vindication for deliberative politics. It is contested whether collective actors have the capacity to act ethically to begin with. It is difficult to judge if collective actors behaves charitably. However, important insights such as that global poverty is ethically unacceptable. Moral philosophers and international lawyers have tried to find ways to express the fact that such activities as genocide, slavery and torture are ethically wrong, and have come to use particular Latin phrases to express this sentiment (jus cogens). It is not so much the case that IL is devoid of ethics, but rather that ethic itself is far from uniform. Final remarks: critical perspective Among the main values of the critical approach is its methodology IL always has to navigate between naturalism and positivism. It is often impossible to answer to any legal question, but if the justification is strong enough, the behaviour can be deemed “lawful”. Rules typically come with exceptions rules tend to be both over-inclusive and under-inclusive. 2 – The making of IL IL is predominantly made by states. Since states are considered to be sovereign, there is no authority above them law can only be made with their consent IL is often said to be a consent-based system. IL doesn’t have a specific document specifying how it is made. The Statute of the ICJ contains a listing of instruments that the Court may apply in deciding cases, it is often used as a starting point for a discussion of the sources of the law. The list is not exhaustive. It is plausible to say that international organizations can make law. For while it may be the case that consent is of less importance nowadays than a century ago, it needs to be underlined that state consent is still of vital importance. Lotus and Wimbledon August 1926 the steamships Boz-Kourt (flying the Turkish flag) and Lotus (French) collided on the high seas, off the Turkish coast. Eight Turkish nationals died and the Turkish authorities started criminal proceeding against Lieutenant Demons, first officer of the Lotus, as well as the captain of the Boz-Kourt, Hassan Bey. Both were found guilty by the Criminal Court of Istanbul and sentenced to a fine of some months’ imprisonment. French authorities claimed that Turkey lacked the required jurisdiction to prosecute a foreigner for acts committed outside Turkish territory. Turkey and France agreed to take the matter to the PCIJ. The main question was whether Turkey had acted in conflict with principles of IL. The question was not whether Turkey had permission to start proceedings, but rather whether starting proceeding was prohibited. Since no prohibition could be found in IL, the Court eventually decided that Turkey had not violated IL there was no rule prohibiting Turkey from starting proceedings against Lieutenant Demons. The Court laid down the idea of IL as a permissive system behaviour must be considered permitted unless and until it is prohibited nullum crimen sine lege. The alternative, as argued by France, would have been a prohibitive system. There are exceptions: surely committing genocide is wrong, even for those states that have never accepted the prohibition of genocide. The decision should not have come as a surprise: four years earlier (in the Wimbledon case) the PCIJ had strongly suggested the outlines of a positivist, permissive international legal order. After WW1 the victorious powers negotiated the Versailles Treaty. Under the treaty the Kiel Canal was declared an international waterway Germany could not block the passage of any ship, save in times of war. When Germany refused access, in 1921, to the steamer Wimbledon, flying the English flag and chartered by a French company, those victorious powers started proceedings in the PCIJ. Refusing access Germany had violated article 380 of the Versailles Treaty. One of Germany’s counter-arguments was that the Versailles Treaty was difficult to reconcile with sovereignty, and concluding a treaty could not be equated with giving up sovereignty powerful theoretical point how is it even possible to have law in a system of sovereign states? The Court shot down Germany’s argument concluding a treaty could place restrictions on the exercise of sovereign rights, and it disagreed with the position that sovereignty and IL were irreconcilable it suggested instead that sovereignty and IL went hand in hand: “the right of entering into international engagements is an attribute of State sovereignty. It is precisely because states are sovereign that they can make IL, but/so rules can only be made on the basis of consent. That is not to say that “natural law” has no place whatsoever, sometimes some rules are so important that they also exist without consensual foundations and may even bind those states that have not accepted them such rules are known as jus cogens rules: peremptory rules from which no derogation is permitted. Art 38 Statute ICJ The Court shall apply: • International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; • International custom, as evidence of a general practice accepted as law; • The general principles of law recognised by civilized nations; • Subject to the provisions of Art 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Art 38 does not establish a rigid hierarchy of sources, but two elements of hierarchy can be seen. First, judicial decisions and the writings of the most highly qualified publicists are listed as subsidiary means judicial decisions have no precedent effect in IL. The Court cannot make law but 34 only apply it, precedential effect would by definition involve law making and cannot be accepted. Second, the general principles of law have as their main function the filling of gaps, they will only be resorted to if there is a situation where there is neither an applicable treaty nor an applicable rule of customary IL. Treaties and custom are the stronger sources they both rest firmly on the consent of states. Treaties Lord McNair described treaties as the only, and sadly overworked workhorses of the international legal order. If states want to make a deal, the only instrument at their disposal is the treaty. The only instrument available to set up an institution such as the UN is, again, the treaty. Treaties can come in all forms and sizes. They can be bilateral or unilateral, highly solemn or highly informal. What matters is that states express their consent to be bound. Rules have been codified in the 1969 Vienna Convention on the Law of Treaties (VCLT), wich applies to treaties concluded between states only. A later Vienna Convention was concluded (in 1986) to address treaties concluded with or between international organizations, but it has yet to enter into force. In the meantime treaties concluded with or between international organizations are governed by the same customary rules underlying the 1969 VCLT. Customary law While written law tends to be more precise, customary law has the advantage that precisely because it is based on social practices, it is usually deeply engrained in the everyday life of that society. In IL customary law has traditionally played a very important role, and continues to do so. Art 38 ICJ Statute defines customary law as evidence of a general practice accepted as law. Curios that the custom is not evidence of a general practice but the other way around: the practice is evidence that there is a custom. The definition provides two main requirements: a general practice, and this general practice must be accepted as law or, accompanied by opinio juris a sense of legal obligation. • General practice In earlier days it was sometimes thought that the formation of a customary rule could take quite some time Vattel noted that customary law consisted of customs and maxims “consecrated by long use”. By contrast the ICJ found in 1969 that “even without the passage of any considerable period of time, a very widespread and representative practice might suffice of itself”. Space law is an example of instant custom. A relevant question is whose practice is required? What matters in particular is that those states whose interests are especially affected by a customary rule participate in its making. Perhaps the most controversial question concerning practice is what exactly counts as practice it can take various forms. It is generally accepted that the material acts of states counts as elements of state practice. It is also generally accepted that the legislative acts of states and their legal practices generally may qualify as state practice. More controversial is whether mere statements may qualify as state practice. In the space of roughly a decade, the potentially law breaking Truman Proclamation had given rise to a new rule of law. General principles of law General principles of law, recognized by civilized nations. The latter part is a throwback to the early 20th century, when it was still common to distinguish between civilized and not so civilized nations. Nowadays that distinction is sometimes made between liberal states and illiberal regimes. If treaties and custom are traceable to a state’s express consent to be bound, this is less obvious with general principles. Principles can be applied in a variety of settings, and this characteristic distinguishes them from rules. Principles are far more open ended. They are eminently useful to fill in possible gaps in the law. Principles are not “adopted” or “legislated”, they form part of most legal systems of the world. They cannot be traced back to expressions of consent by states. General principles of law are sometimes conceptualized as sort of “custom lite” rules which are perhaps a bit more “necessary” (necessity is in the eye of the beholder) than other rules. Conceiving of general principles as “custom lite” is perhaps not advisable, it undermines traditional custom (whose strength is embedded in social practices) and it tends to circumvent consent. Unilateral declarations The World Court has on several occasions suggested that unilateral statements by states may well come to bind those states. Not all unilateral declarations will come to have binding effect. Some statements are best seen as declarations of facts or expressions of political opinions, such as an act of recognition. Sometimes statements can also be little more than political outbursts. The leading cases on unilateral declarations are the Nuclear Test cases. After France had started nuclear testing in French Polynesia, some of the fall out landed in Australia and New Zealand, the latter countries claimed that France had interfered with their sovereign right to be free from nuclear materials on their territories. They asked the Court to order France to stop testing. Several French government officials had made public declarations to the effect that if things went well, testing could soon come to an end. The Court would come to interpret these statements as promises, as they seemed to indicate an intention to be bound on the part of France France had thus promised to stop testing. The decision is vulnerable to strict legal criticism one may wonder whether unilateral statements are a recognized mode of law making to begin with, and also whether France actually intended to be bound: many of the statements were in conditional form, rather than strict promises. Other possible sources and the renewal of sources doctrine Many dealings between states take place in other ways, for instance on the level of individual governmental departments, lower governmental authorities or agencies on different functional levels. In some cases it is nevertheless possible for international organizations to take binding decisions and even to engage in law making activities, depending on the powers that have been given to these organizations or have been appropriated by them. 34 Governance has become “network governance”. Many international lawyers have adopted the phrase “soft law” to denominate normative affirmations that do not fit the listing of article 38 ICJ Statute, but the term soft law is misleading and unhelpful misleading as this phrase suggest that law can come in varying degrees of “bindingness”, unhelpful because it still does not say anything about why some expressions come to be seen as law. The heart of the problem is that IL lacks a proper criterion for distinguishing between law and non law. Traditionally this was hardly an issue, the only validity requirement that was needed was the consent of states (explicit or tacit). But now a different criterion of validity is required. Some have proposed a behavioural criterion normative statements are law when they are respected (when they are “normative ripples”) but this lacks analytical rigour. People should know what the law says before they act, and not have to wait to find out whether their behaviour will be found illegal. Other have suggested that the question is really not all that relevant what matters is not so much whether something is “law”, but whether transgressions of norms provoke some kind of community reaction. Then the perspective becomes ex post facto this may be useful for social scientist but is less helpful to the lawyer. The better view is to propose a “presumption of binding force”. Rules (for example fisheries standards) should be considered as law, unless it can be demonstrated that no normative effects were intended, or that all relevant stakeholders were involved in the process of setting the standards. This presumptive thesis will have the benefit of being workable and of allowing for participation by the relevant actors, whether they are states or not. Courts typically allow for commitments to be highly informal, and tend only to dismiss the legal force of instruments if those instruments are clearly not intended to give rise to rights or obligations. Final remarks Anything states consented to, as law, would become recognized as a source of international law. The term “law-making” has come to replace the more traditional term “sources doctrine”, because “law-making” carries more dynamic and politically astute overtones. “Sources” suggest that the law springs from somewhere, “law-making” is far more suggestive of law being man made and coming in many different guises. 3 – The Law of treaties Agreements are best considered as somehow giving rise to binding obligations: pacta sunt servanda. Anything else would have been counter productive, there is little point concluding agreements if the premise is that no binding force will ensure. The rule pacta sunt servanda is thereby and indispensible rule. It was thought for a long time expedients to underline the binding force of treaties by practical means. A particularly gruesome guarantee was the exchange of “witnesses” individuals were held in hostage until such time as the treaty had been performed. More innocent was the practice of invoking the help of superior powers treaty making was formalized by means of an oath. Over time a number of rules grew and crystallized, these rules formed the basis of the drafting of the 1969 VCLT which entered into force in 1980, and reflected customary IL with the addition of few novelties such as the notion of jus cogens (peremptory norms from which no derogation was permitted). The VCLT has become the leading instrument on the law of treaties (concluded between states). Treaties concluded between IOs are governed by the terms of the 1986 Vienna Convention on the Law of Treaties with or between International Organizations. This latter instrument while not in force, reflects customary IL, and follows the 1969 VCLT almost to the letter. In the VCLT two important conceptual choices. One was almost natural it came to reflect a contractual outlook of treaties. Second choice instead of focusing on the substance of treaties (treaty as obligation), the drafters concentrated on the form of treaties (treaty as instrument). One of the ambitions was to formalize rules on signature and ratification. Important consequence Vienna Convention says little about the consequences of a breach of obligations left to the law on state responsibility. Most of the rules are residual in nature states are free to depart from them by mutual agreement. Result it is sometimes difficult to argue that the VCLT is “violated”. Two basic principles The law of treaties is based on two foundational principles. 1. A logical corollary to the concept of state sovereignty treaties need to be based on the free consent of states (as recognized in the Lotus case) 2. The freedom of states is not unlimited once consent to be bound has been expressed and the treaty has entered into force, the treaty shall be kept by the parties in good faith (pacta sunt servanda), codified in art 26 VCLT. This stresses the responsible side of sovereignty. Treaty making is an emanation of sovereignty (Wimbledon case), and the responsible sovereign sticks to his word even contrary domestic law is not a valid excuse. The VCLT proclaims its own priority over domestic law. The concept of treaty The Vienna Convention defines treaties as agreements in written form, concluded between states and governed by IL, whatever the number of instruments involved and whatever their particular designation (treaties can come under all sort of names). The designation makes no legal difference, although the choice of a solemn label may indicate that such an agreement is deemed to be of great political significance. One important exception the choice of the label “memorandum of understanding” (MoU) would signify an intention not to be legally bound. Treaties can come in the form of a single instrument, and in the form of correspondence. The circumstance that treaties need to be in written form is peculiar to the Vienna Convention. Art. 3 adds though that this is without prejudice to the legal force of oral agreements. It is perfectly possible that instruments not concluded by states are none the less treaties, it is just that those will not be governed by the Vienna Convention. The only relevant requirement is that treaties are only treaties if governed by IL. (Since 1950s) The requirement that treaties be “governed by IL” can also be used to separate treaties from non-legally binding instruments. Designating an agreement as an MoU would manifest a mutual intention not to be legally bound but, to be bound merely on the political or moral level. MoUs would seem to include enhanced flexibility and the possibility of circumventing domestic parliamentary participation in the conclusion of treaties. Government officials gain considerable freedom of action this way. 34 4. If the treaty partner specifies that it does not accept a proposed reservation and does not wish to have treaty relations with the reserving state the reservation has no effect the entire treaty remains without effects between those two states. Vienna Convention’s regime on reservation is said to be tilted in favour of the reserving state so much that many have claimed that allowing for reservations ends up “ruining” treaty regimes. Swiss reservation in Belilos. A second attempt to restore the balance between reserving states and their partners was pioneered by the Nordic states, which started to add to their objections the statement that the reserving state “shall not benefit” from its reservation. But that’s problematic it is not up to the Nordic states to start to rewrite the Vienna Convention. It would also mean that reservations could be separated from the instrument of ratification to which they were attached a state would become bound without the reservation it insisted upon unlikely to be acceptable to sovereign states. Pellet suggests that reservations are the price to pay for living in a world of pluralism. Interpretation The very process of interpretation can roughly be seen as having three distinct aims: 1. Interpretation is about discovering the objective meaning of a treaty; 2. Interpretation is not so much about discovering what a text means, but rather about what its drafters had in mind when drafting it; 3. Interpretation is predominantly concerned with realizing the goals of the drafters. These have given rise to three distinct methods of interpretation: 1. Textual approach. At least two disadvantages: it would seem to presuppose that words have an inherent meaning of their own, and since treaties are often concluded against a background of profound disagreement (“disagreement reduced to writing” according to Allot) the terminology used is not all that unequivocal. [“sustainable development”] 2. Historical method. With the great drawback that it leaves everything static. Another problem is that relying on legislative intent may rule out the political desires or ambition of states that did not exist independently when the treaty was drafted (of the 193 current members of the UN only 51 participated the drafting of the Charter). Historical method presupposes both that historical records are available and hat everyone agrees on what qualifies as historical records. 3. Teleological approach, concentrating on what the drafters aimed to achieve. The drawback is that an interpretation that is too teleological runs the risk of becoming unrecognizable to its parties, and may lose some of its political legitimacy. The Vienna Convention, in art 31, produces a sensible compromise between the textual and teleological approaches treaties shall be interpreted in accordance with the ordinary meaning to be given to the words in their contexts, and in light of the treaty’s object and purpose. The application of treaties The Vienna Convention treats interpretation as an aspect of the application of treaties, surrounding its provisions on interpretation by articles dealing with application more strictly. States can conclude treaties on all sort of topics, the one caveat being that they cannot conclude treaties which would conflict with jus cogens norms. The Vienna Convention creates a presumption that treaties apply in principle to the entire territory of a state, unless the treaty provides otherwise (particular relevance for colonial states). There will be a presumption that treaties have no retroactive effect, unless the treaty provides otherwise. In case of conflict art 30 VCLT if the parties to those treaties are identical then the later in time (lex posterior) will prevail. Things get really difficult when the parties are not identical one cannot apply a temporal provision. The consensus position is arguably what has become known as the “principle of political decision” state A should Choose whether to honour its commitments toward B or C, and compensate for the “losing” party. It would have been possible to approach treaty conflict not as a temporal matter, but as one of hierarchy. The hierarchy idea is embedded in art 103 of the UN Charter which has been confirmed by art 30 VCLT. Alternatively conflict can be approached as a matter of substantive conflict in this case the classic maxim lex specialis derogat lex generalis often warrants application. The VCLT did not opt for this possibility difficult to determine whether a treaty is the special one or the general one. The absence of a general rule allows wise political decision to be taken. When it comes to the personal dimension of treaties the Vienna Convention is fairly clear treaties are only binding upon the parties to them can create neither rights nor obligations for third parties without their consent. Art 35 and 36 with respect to obligations the consent must be express and in writing; with rights the regime is more relaxed, consent may also be expressed by acting in accordance with the right. Grey area situation where the behaviour of two or more states creates a so called objective regime good example: the creation of the Antarctic regime (1959). Treaty revision The most formal way is through amendment art 40 VCLT amendment by definition involves all parties to the original treaty. If only some parties are concerned the convention speaks of a modification between those parties inter se it is generally permitted as long as it does not deprive others of rights under the original version of the treaty concerned. Amendment (as well as modification) goes trough different stages. An amendment must be proposed. States are asked twice for their opinion, once while adopting the amendment, and once while deciding to approve ratification of the amendment. The main legal question is what happens if an amendment is indeed ratified by most parties but not by all. The situation differs from treaty to treaty. Some treaties specify that amendments only enter into force for all parties, even though acceptance by a majority suffices for the amendment to enter into force (the UN Charter). Others suggest that amendments only enter into force for the states that accept them, with the result that those not accepting them remain bound by the old version of the treaty this is not always practicable as it creates two regimes within one. 34 Many treaties change over time by means of less formal methods. Interpretation may be subject to change. Organizations may have competencies that are not explicitly written down in the constituent treaty. Even without formal amendment or modification treaties may become unrecognizable. To some extent this is a good thing it allows treaties to adapt themselves. The drawback is that informal change is not conductive to stability. Validity and invalidity The Vienna Convention’s provisions on the factors that may invalidate a treaty relate to defects in a state’s consent to be bound, with one exception. The jus cogens provision of article 53 stipulates that a treaty can be void if there is a problem with its substance. Art 46 to 50 list factors that may invalidate a treaty. The parties can also agree that although something went wrong, but they don’t want to see their treaty invalidated. It is different with art 51-53: if the circumstances mentioned there occur, the treaty will automatically be invalid here invalidity operates by law. Things that may render a treaty invalid under art 46-50 include such activities as bribery, errors (not linguistic) and bad faith (not mentioned explicitly). Art 46 is of some interest provides that in certain instances a violation of domestic treaty-making rules may end up in the invalidity of a treaty. Such a violation of domestic procedure “may not be invoked”, except in specific circumstances, if it concerns a rule of fundamental importance and if the violation was manifest. The bigger cognitive problem resides in the definition of “manifest violation”. Art 51 and 52 deal with issues of “higher” politics. The basic thought is that treaties procured on the basis of coercion are void. Art 51 situation of coercion of state representatives (unlikely because many people are involved). Art 52 coercion of the state example: military invasion. The question at the Vienna Conference was whether the notion of coercion would also cover instances of economic or political pressure. But art 52 is limited to military pressure it was said that the exercise of economic an political pressure was to be condemned, but without this leading to tangible legal consequences. Peace treaties are almost by definition the result of coercion (“approve or face the consequences”). If force is used in violation of the UN Charter it is coercion and invalidity results, if force is used in conformity with the UN Charter, the resulting peace treaty will not be regarded as having been concluded by means of coercion. Jus cogens rule a treaty concluded in violation of a peremptory norm is void. Termination and suspension While an invalid treaty is one that has no legal effects whatsoever, a terminated treaty is one whose legal effects have come to an end through various means. The easiest way when parties agree that their treaty must come to an end. A treaty may also terminate by the operation of law. Suspension is a different phenomenon it does not signify the termination of an instrument but the temporary deactivation of a regime (much the same modalities). To achieve termination by agreement there are various techniques. States can previously agree that the treaty will be of limited duration and include an expire clause. States can provide (rare) that a treaty will be terminated once the common object has been achieved. However is controversial if there is no specific form of government prescribed. In the 19th century this took the form of making a distinction between civilized and uncivilized states. More recently it has been proposed that only liberal democracies be recognized as proper states not without problems. First it remains unclear who is to determine whether a regime qualifies as a liberal democracy and on the basis of what standards. Second some of the world major powers might not qualify. Capacity to enter into international relations This was a helpful requirement in the days of colonialism, and the Montevideo Convention (1930s) could not avoid being a child of its time. Colonized territories were typically not considered capable of entering into relations with other states. Sometimes this basic idea was ignored with political expedients (India and Philippines). Colonialism gave rise to various types of relations between colonizer and colonized and did so in hugely unreliable terminology. Some territories were nominally independent, but protected by Western powers protectorates. A lighter form of sovereignty was often described as “suzerainty”. The League of Nations added to the confusion by creating mandate territories (administered by Western powers but subject to the League of Nation’s authority) a practice that continued with the UN as “trusteeships” until the last formally designated trusteeship (Palau) gained independence in 1994. Nowadays the requirement is not considered all that relevant. Recognition of states (or governments) The Montevideo Convention not only listed the requirements for statehood but also referred to recognition of statehood the most complicated and politicized aspect of statehood. It is unclear what exactly is recognized state or government? The legality of a government or its practical existence (recognition de iure or the facto)? What the precise legal aspects of recognition are? The Montevideo Convention embodied the so called declarative theory of recognition and provided that recognition was of no legal relevance whatsoever. Under the declarative theory the act of recognition should be used merely to specify that in the opinion of other states, entity X meets the requirements of statehood. Such declaration is not necessary. The rival theory is the constitutive theory since the community of states is essentially a political community, membership is dependent on acceptance by the existing members recognition is vital. Biafra in 1967 it proclaimed independence after a bloody war of secession with Nigeria, only to discover that it did not meet with recognition from more than a handful of states and within three years it became part of Nigeria again. There is some reason to believe that in practice, the constitutive theory may be the stronger one, if only because it is next to impossible for a state to survive without recognition (and however recognition is essentially a political act). The legal criteria offer some guidance decisions on whether to recognize or not are eminently political decisions, predominantly guided by political motivations. When states engage in recognition, it is not always with a view to recognizing statehood. 34 Recognition of governments can also take place either the jure or de facto and here it is the intention of the recognizing state that decides. De jure recognition signifies that a government has risen to power in a legitimate way. De facto recognition signifies that while a government may be in power the recognizing state is not very pleased with the way the government came into power. Entering into treaty relations does not constitute implied recognition and does not constitute implied recognition when the treaty partners themselves exclude this. While recognition is in principle a unilateral pact, which affects bilateral relations, it is accepted that admission into the UN marks something like a collective recognition a state admitted as a member of the UN is accepted as a legitimate member of the community of states also because admission into the UN signifies approval by at leas two thirds of the UN’s member states including the five major powers on the Security Council. The legal effects of recognition do not extend to the level of intergovernmental relations, treaty relations will take place with or without recognition. Recognition and non recognition affect the lives of individuals. South Sudan seceded from Sudan in 2011. Before secession South Sudan was a more or less autonomous part of Sudan, but two civil wars suggested that there war little love lost between the central government and the people of South Sudan. A referendum about secession took place in 2011 and 98% of the electorate voted for independence and independence was declared. South Sudan was admitted into the UN, recognized already by some eighty individual states (the first of these was Sudan secession occurred with Sudanese consent). Kosovo was part of the Socialist Federal Republic of Yugoslavia and of Serbia. Kosovo was administered for a while by the UN Mission in Kosovo, and declared independence in 2008. Yet general recognition has not come Kosovo is recognized by seventy-six states and by Taiwan, but while these states include the USA, UK Germany and France, other important major powers are missing China, Russia and Serbia consent of the “parent state” makes life a lot easier. The break-up of Yugoslavia provided international lawyers with lots of material on statehood recognition and state succession, in particular two developments stand out. Badinter Commission issued a number of opinions on issues such as state dissolution, the applicability of the right of self determination and how this affects the earlier internal boundaries and state succession. The Commission declared that the principle of uti possidetis earlier internal boundaries in principle continue to exist after independence or dissolution should be considered a binding general principle. In late 1991 the EU adopted a set of guidelines of recognition of the new states in Easter Europe. The EU stipulated that new states should only be considered if they respected existing boundaries, if they accepted disarmaments commitments, guaranteed the rights of minorities and displayed a commitment of democracy, the rule of law and human rights. Acquisition of territory A first mode, long since discarded, was discovery discovery gave rise to a title, which could be perfected by further acts. This only worked on the presumption that the discovered territory was uninhabited or that the original inhabitants were of lesser status than their European discoverers. Hubert argued that at the “critical date”(the moment of cession) (Island of Palmas case), discovery alone was not sufficient the exercise of effective government was far more important. IL does not contain any rule outlining how to identify the critical date. The notion of effective government emphasized by Hubert in Palmas, owed much to two concepts borrowed from Roman law. Under occupatio (occupation) someone assumes ownership over a good that was not earlier subject to ownership in territorial cases this is res nullius. Under prescriptio (prescription) ownership is assumed despite rival claims. The exercise of authority over an extended period of time, accompanied by the will to do so (animus occupandi), preferably uncontested. Currently occupation and prescription are no longer considered terribly relevant, because the use of force is strongly prohibited under IL military conquest is unlikely to result in titlte to territory. A re-drawing of boundaries is quite common after major wars, resulting in changes in ownership. The USA enlarged its territory following disputes with Spain and Mexico. More peaceful modes also exist. Cession one state handing over territory to another, usually in exchange for a sum of money or for another piece of territory. Peaceful as cession may be, it can play a forceful role in oppression much of the colonization of Africa involved cession. In some cases territory was not sold but leased. Another peaceful way of acquiring territory is to submit territorial disputes to adjudication and leave it to a court or arbitrator to decide. Many of the cases that reach the ICJ have to do with boundaries and territory. Internalized territory Political circumstances sometimes give rise to what may be referred to as internationalized territory territory placed under the authority of a group of states acting together (Berlin after WW2, Kosovo…). Territory that is internationalized may grant a state access to open seas (Danzig). A different manifestation is the regime concerning Antarctic in 1959 many states came together and decided to “freeze” any claim and administer Antarctic together. Such constructions create situations or regimes between groups of states which will aggect others without their consent. Statehood: continuity and change Once a state exists, there is a very strong presumption that it will continue to exist. The reduced effectiveness of government doesn’t affect its statehood. If ineffectiveness of government led to loss of statehood then quite a few established states might be at risk. It is possible for statehood to change, and at least four methods of change can be distinguished: 1. South Sudan illustrates that a new state may come into being on the basis of secession. Peacefully or also following a bloody war. The main characteristic of secession is that the old parent state continues to exist and continues to do so under the same name and with the same legal identity, but with a reduced territory. 2. Decolonization this resembles secession but a defining distinction is that the former colonies are based elsewhere in the world and not contiguous with the metropolitan area. 34 The Council can order military action, but cannot adopt a global tax. The dividing line between administrative and legislative measures is a thin one. 3. The UN also comprises a secretariat, headed by the Secretary-General. The secretariat is ordained to be impartial but the secretary general does have a role to play beyond mere administration his tasks includes bringing matters to the attention of the Security Council. 4. Economic and Social council coordinating the activities of the UN family. 5. The Trusteeship Council was responsible for supervising the administration of trusteeship territories. 6. ICJ there is a strong institutional connection between the leading organization and the World Court. Other subjects If states are the original subjects of IL and have full capacity, and if IOs too have in principle full capacity under IL, the legal status of other entities is less clear and less extensive. Little can be said in general terms, except to repeat that legal subjects status is often constituted by the very act it legitimizes. Other NGOs have been instrumental in encouraging states to conclude conventions, without enjoying a formal right of initiative. States and IOs rely on NGOs to provide them with information concerning for example environmental disasters or human rights violations. Other entities may occupy a historical position as subject of IL the Holy See, can conclude treaties (so called “concordats”) and also has diplomatic missions, the Holy See representative is not referred to as ambassador, but as nuncio. It enjoys diplomatic relations with many states and is a party to such general IL documents as the 1961 Vienna Convention on Diplomatic Relations. It is not a member of the UN. Final remarks The big challenge for IL is not so much to guarantee cooperation and communication between states but rather between functional “regimes”: the trade regime, the security regime and other functional regimes. What is clear is that states, once recognized, are full subjects, and that IOs are capable of performing many international legal acts. Recognition is the homage that politics pays to law. Once recognized, law governs international relations, but the decision on who gets to participate and in what way, is only partially regulated by IL. 5 – Jurisdiction, powers and immunities States, being sovereign, can in principle do within their territories as they please. In IL language, it is often said that states have jurisdiction over their territories, and that this jurisdiction is, in principle, exclusive and unlimited. In practice things are not quite as dramatic states sometimes have to compete with other states to be able to prosecute the same acts. Historically states shall not subject other states and their representatives to their jurisdiction hence the existence of state immunity (or sovereign immunity) and of diplomatic privileges and immunities. Five principles States can typically claim jurisdiction on the basis of five (overlapping) principles not laid down in any multilateral treaty. What typically happens is that a national criminal code specifies a list of offences, and academic commentators deduce that this particular code evidences one or the other IL’s principles. While IL allows domestic law to be based on any of these principles or a combination it doesn’t bind states. A treaty may provide for universal jurisdiction in respect of a particular crime (universal jurisdiction is the only one of the principles that sometimes finds itself explicitly mentioned, probably because still considered controversial). Many treated are concluded precisely with a view to coordination in case of jurisdictional conflicts. The first 3 principles correspond to the 3 defining elements of statehood since a state is defined by having territory, a population and a government jurisdiction enables it to exercise authority over territory, over its population and so as to protect its government. In addiction since some territory is outside the jurisdiction of any single state, some ideas had to be developed to cover events happening in the interstices between state jurisdictions the emergence of a principle of universality. Some state have accepted the principle of passive personality or jurisdiction but it is a recent invention. Territoriality The fons et origo of jurisdiction of states is the principle of territoriality sovereignty and territory go hand in hand. Things get difficult when two or more states are involved. Problems behaviour originated in A’s territory but the effects were felt in B. Decision of the PCIJ in the Lotus case was based on objective territoriality. The Court could only do so by ignoring that collision took place on the high seas under the law of the sea, in the case of collisions taking place on the high seas, the states that can exercise jurisdiction are the flag state of the ships concerned, or the state of nationality of the accused. Nationality If the principle of territoriality is undisputed, so too is the principle of nationality. States can claim authority over their nationals, no matter where they are the more common field of application is criminal law. In case of dual nationality there will usually be a dominant nationality whose state will be keener to claim authority than the other. Protection It is generally accepted that states can claim jurisdiction over activities that endanger them, even if those activities take place elsewhere and are ascribed to non-nationals. Examples planning of a coup d’état, immigration fraud, also attacks on diplomats abroad. Passive personality A recent addition, controversial. A state can prosecute anyone who harms its nationals, no matter where this occurs. The passive personality principle takes the nationality of the victim as its starting point idea that injuring a citizen of a state is similar to injuring the state. 34 Highly controversial as it sends the message to the other state that its legal system is not good enough. Universality The most interesting of the principle is that of universal jurisdiction. Under this idea, some crimes are so abhorrent that all states can legislate and prosecute, regardless of the involvement of their territory or nationals. Historically in response to the emergence of piracy. Universality has been utilized in connection with gross violations of human rights most influential case, of the US Court of Appeals, is Filartiga v Peña-Irala (1980). Dr Filartiga’s son had been tortured and killed in Paraguay by the then chief of police of Asuncion, Peña-Irala. Filartiga brought a civil case on the basis of a largely dormant piece of legislation, the 1789 Alien Tort Claims Act which provided for jurisdiction over torts (not crimes) committed “in violation of the law of nations or a treaty of the US”. The lower court declined, but the Court of Appeal decided to apply the Alien Tort Claims Act. It thereby exercised universal jurisdiction deciding a case without there being any grounding in any of the other principles. The one thing left for the court was to hold that torture was indeed a “violation of the law of nations”. In 2004 the US Supreme Court decided to put a limit on the flurry of litigations started after the Filartiga decision, by holding that the Alien Tort Claims Act only covered serious violations of the most accepted human rights. One other limitation had always been implicit the cases were brought by individuals who had taken up residence in the USA, so there would be some connection to that country. Belgium’s genocide law of 1993 made Belgium a judicial supermarket. Belgium amended its law so as to introduce some connection to the country itself. Universal jurisdiction helps to bring an end to impunity for gross human rights violations. Some drawback it runs the risk of becoming an exercise in “looking back in anger”; all sorts of practical concerns (field trip to interview witnesses and gather evidence) wealthy country may afford this but poorer states may not. The exercise of universal jurisdiction runs the risk of becoming a fig leaf for the exercise of political power rich Western states prosecuting those individuals who offend the standards of those rich Western states. Universal jurisdiction is bound to remain controversial few treaties actually make universal jurisdiction compulsory. It is of some importance to distinguish universal condemnation of a crime from the possibility of universal jurisdiction. The most instructive example is the Genocide Convention which prohibits genocide, but does not provide for universal jurisdiction art VI specifies that suspects of genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed”. Extraterritorial jurisdiction States sometimes claim jurisdiction over acts occurring outside their boundaries. If any of the other principles can be invoked, then this causes few problems, but sometimes the exercise of extraterritorial jurisdiction is rendered problematic. The best known example is the US anti-trust law the US courts have assumed jurisdiction over acts done elsewhere if those acts would affect the US market the “effects doctrine”. violated IL and the Court agreed. Substantive norms, even if they were recognized as jus cogens operated differently form procedural devices such as the rule on state immunity. According to the Court there was no conflict between jus cogens and rules on state immunity no sense in which either could be considered to be superior “The two sents of rules address different matters”. Immunity determine whether a national court has jurisdiction, but that question is different from the question concerning the lawfulness of the activities at issue. Heads of state and others Derived from the idea of sovereign immunity leaders of states are still immune from jurisdiction, while in office. Confirmed by the state of customary IL in 2002 Arrest Warrant case. Attention was focused on the possibility of prosecuting political leaders for their contribution to mass atrocities (Pinochet in Chile, Milosevic in Yugoslavia, Jean Kambanda in Rwanda). Art 7 of the ICTY Statute lifts the immunity of political leaders, including heads of state and government, as does the art 6 of the ICTR Statute. This allowed the prosecution of Kambanda and Milosevic. The fact that the statutes of the ICTY and ICTR explicitly lifted the immunity of political leaders can be seen as an affirmation that without such provision, the customary rule is still that immunity applies. (Pinochet case) The House of Lords basing on the 1984 Torture Convention, which creates universal jurisdiction for torture and says nothing at all about immunity, it suggested that the very creation of universal jurisdiction would be nullified if immunities prevailed the Torture Convention had to be construed so as to lift immunities, at least once political leaders had left office. Diplomatic privileges and immunities Diplomats represent their states abroad, and in order to do so properly, should be free from concerns about harassment or arrest. IL recognized that diplomats, their immediate families and other working in or at an embassy enjoy certain privileges and immunities, and those rules have largely been codified in the 1961 Vienna Convention on Diplomatic Relations. The convention entered into force in 1964 187 parties one of the most widely ratified international conventions. The convention makes a distinction between four kinds of persons: 1. Diplomats proper “having diplomatic rank” 2. Technical and administrative staff 3. Service staff 4. Private staff The level for diplomats is higher than for the other categories. The convention devotes a number of provisions to the diplomatic mission and other non personal objects such as correspondence. Diplomatic relations are established by mutual consent the accreditation of the head of mission depends on his or her acceptance by the host state. States need not provide reasons for refusal to accept certain individuals and are at liberty to declare individual diplomats persona non grata, without having to provide reasons. This is the price to pay for immunity diplomats are immune from prosecution, but if suspected of 34 crimes they can always be expelled. Sending them off is often done for more or less political reasons. The mission (= embassy) is inviolable. Domestic authorities may not enter except with the ambassador’s permission or in extreme cases the permission of the sending foreign minister. This is a strict obligation. Case in 1980s shots were fired from the Libyan embassy in London, killing a police officer. The inviolability extends to the furnishings and property, as to the means of transport of the mission, and also applies to the private residence of diplomats. Archives and documetns of the mission are inviolable, mission enjoys free communication for all official purposes inviolability of diplomatic mail and diplomatic bag. Those who are of diplomatic rank enjoy immunity from criminal jurisdiction in the receiving state, immunity from administrative an civil jurisdiction, except in certain circumstances (when the diplomat acts as executor of someone’s will). They are also inviolable, exempt from social service charges in the receiving state, and from all dues and taxes (some exceptions). They pay taxes to their home states. Much the same applies to the family of the diplomat “those forming part of his household”. Much the same applies to the technical and administrative staff except that their immunity from prosecution extends only to official acts. Member of the service staff enjoy official act immunity, exemption from taxation on their salaries and exemptions from social service charges and private servants of the missions enjoy a more limited scope: exemption only extend to taxes on their salaries. All this is subject to an important principle the principle of nationality discrimination. In the same way as diplomats representing states can claim privileges and immunities, so too can officials of IOs or state delegates to such organizations. There is no equivalent treaty to the 1961 Vienna Convention, but most IOs have headquarters agreements with their host states which outline the immunities and privileges of staff, delegates and organization itself. Typically the status of international civil servants and delegates to organizations is quite comparable to that of state diplomats and embassies, but the underlying theory is more clearly spelled out as “functional” privileges and immunities are necessary to enable the organization to function. It is commonly accepted that a diplomatic mission abroad is not a small bit of territory of the sending state this “exterritorial” theory is widely discarded. Final remarks The scope of activities of IOs is surrounded by the concept of competences.