Jan Klabbers, International Law, Sintesi del corso di Diritto Internazionale

Scarica Jan Klabbers, International Law e più Sintesi del corso in PDF di Diritto Internazionale solo su Docsity! lOMoAR cPSD|2805715 SINTESI COMPLETA DI Jan Klabbers, International Law Esame di INTERNATIONAL LAW (Libera Università Internazionale degli Studi Sociali Guido Carli - LUISS) Anno accademico 2020-2021 lOMoAR cPSD|2805715 THE SETTING OF INTERNATIONAL LAW Private international law regulates individual conduct with a transboundary (transfrontaliero) element, public international law is often said to regulate relations between states. Many of the rules of IL have an effect not only on states but also on other entities, like international organizations. All international lawyers utilize some kind of theory of IL. This can be highly pragmatic, IL should be regarded from that perspective as a technical discipline, providing the tools for statesmen (statisti). Or it can be a highly sophisticated and politically self-conscious theory, IL viewed as a beacon (faro) of hope. Or it can be a nationalist theory that starts with national self-interest, IL is often viewed a an intruder (intruso). 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 think 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 (dovrebbe) 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 (inciampando) on the territory the European 1 lOMoAR cPSD|2805715 This is now structurally impossible: IL is not capable of doing both at the same time and as a result is vulnerable to both arguments. The discussion is bound to go on forever, unless and until states reach some kind of agreement. Asking the ICJ for an opinion will prove useless in the absence of any clear political accord: all the Court can do is to declare either that the use of nuclear weapons is generally illegal but sometimes legal. The trick then resides in finding out what the word “sometimes” means. IL is eventually the continuation of politics. It offers a framework and a vocabulary for the conduct of politics, but does not, and cannot, offer any solutions. Since IL can be seen to continue political debate, instead of settling it, what often matters in addition to the precise rules and principles of IL are the identity and mindset of the people taking decisions, and the conditions under which this political debate can take place. This has generated an interest among international lawyers in political philosophy, in particular in theories of deliberative democracy (back to Macchiavelli). Lawyers started to look for guidance to the Aristotelian tradition of virtue ethics, a tradition where what matters is not only that rules exist but also the character traits of the individuals who apply those rules. IL in international relations theory Whether one thinks IL is useful or not, often depends on the view one has of international politics generally. - Realists → tend to view IL as largely irrelevant: the international system is characterized by a struggle for power between states, and states will do anything to further their self-interests, IL either reflects state interest or it is violated. - Liberal institutionalists → are not as ready to dismiss IL: it can be of relevance, if properly designed to take states’ lust for power into account. Starting from similar premises to the die-hard realists they have identified that IL may be helpful in some walks of life (trade and investment) because legal rules tend to create certainty and stable expectations, law may help reduce transaction costs. If other non-legal mechanisms could have similar advantages or even be more beneficial for the user, then law would cease to play a role. - Law and economics approach, prominent in US academia → “law as economics”: approach that takes its cue not so much from political science but from economics, in particular micro-economics. Rational actors act with profit maximization as their main goal. States will sometimes be inclined to adopt common rules, because common rules might lead to greater profit maximization. But is it really the case that states always act rationally? And that rationality goes hand in hand with profit maximization? The risk is that such an approach ends up denying, of actively undermining, the normative side of all things legal: if the law does not maximize profits, then some other route ought to be chosen (even brute force). - Final approach → so called constructivist approach: takes IL very seriously. Constructivist are more inclined to view IL as modelled on a private law conception, IL is not just about prohibiting things but also about facilitating behaviour, it allows states to conclude alliances and it helps political dialogue. IL delivers the framework and vocabulary that helps make international politics possible. Law helps to construct society. The relevant question is not the realist question of whether law constrains, but whether it enables: social life. 4 lOMoAR cPSD|2805715 Globalization, global governance and IL The emergence of globalization has strengthened the connection between law and economics. There is general agreement that economic globalization is a key element in globalization and that the existence of global economic relations demands a global legal framework. With globalization comes localization. Globalization has also come to be accompanied by what is sometimes referred to as global governance: the exercise of authority on the global level. Globalization and global governance pose challenges not just by throwing up new fields for regulation, but also by forcing international lawyers to rethink the tools of their trade. 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 behave 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. The function of international law (slides) Article 1 UN Charter→ The Purposes of the United Nations are: • To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; • To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; • To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and • To be a center for harmonizing the actions of nations in the attainment of these common ends. 5 lOMoAR cPSD|2805715 THE MAKING OF INTERNATIONAL LAW 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. International law doesn’t have a specific document specifying how it is made, the statute of ICJ contains a listing of instruments that the court may apply in deciding cases (the list is not exhaustive, is possible that there are sources not mentioned in the art. 38 statute ICJ). • Lotus case In 1926, two ships Boz-Kourt (Turkish flag) and Lotus (French flag) collided on the high seas, off the Turkish coasts. The Boz-Kourt was cut in two, eight Turkish died and the Turkish authorities started a criminal proceeding against the first officer of the Lotus and the captain of the Boz. Both were found guilty. French authorities claimed that turkey lacked the required jurisdiction to prosecute a foreigner for acts committed outside Turkish territory. The court discussed the nature of international law→ IL governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in convention or by usages generally accepted as expressing principles of law and established to regulate the relation between these co-existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of states cannot therefore be presumed. Since no prohibition could be found in IL, turkey had not violated IL. The court here laid down the idea of international law as permissive system: behaviour must be considered permitted unless and until it is prohibited. • 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. 6 lOMoAR cPSD|2805715 Unilateral declarations 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 ( a state that has formally recognized another state cannot later deny having done so, the recognition as such doesn’t give rise to tangible rights or obligations). The leading cases on unilateral declarations are the Nuclear tests cases: after France had started nuclear testing in French Polynesia and 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, and this placed the court in a difficult position, for while it wasn’t doubt that the states didn’t have to accept nuclear fall-out, it was also true that there was no general rule against nuclear testing. Several French government officials had made public declarations to the effect that if things went well, testing could soon come to an end, and the France’s Foreign Minister told to the UN general assembly that “we have now reached a stage in our nuclear technology that makes it possible for us to continue our programme by underground testing, and we have taken steps to do so as early as next year”. 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. Australia and New Zealand could thus rely on this promise, which effectively meant that the case no longer had an object. Other possible sources and the renewal of sources doctrine The two major sources of international law, custom and treaty, both work on the assumption of regular, formalized entities: states. In theory the idea that states act through formally designated organs and representatives, come to some form of agreement, and their agreements should have legal effect. In theory the making of international law could be subjected to democratic scrutiny, and it’s surely no coincidence that in most democratic states the conclusion of treaties is subject to parliamentary approval, in particular if those treaties can come to be directly effective in the domestic legal orders. 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. Moreover, much authority is exercised by entities that aren’t related to states; this applies to large companies, but equally to non-governmental entities. Many intergovernmental organizations set standards concerning what, to their minds, constitutes desirable action. Many of the instruments arising from international organizations are formally non- binding recommendations. Network governance → soft law. The international law lacks a proper criterion for distinguishing between law and non-law. Hierarchy of sources Lex specialis derogat generali Lex posterior detogat priori Superior norms (jus cogens) 9 lOMoAR cPSD|2805715 Jus Cogens Major change in the 1960s: socialist and developing countries propose the ides that certain rules should be granted a higher ranking. This concept was included within the Vienna Convention on the Law of Treaties. Peremptory norms of international law/jus cogens rules are: norms from which no derogation is permitted and that can only be modified by a subsequent peremptory norm of international law. Treaties v. jus cogens Art. 53: Treaties conflicting with a peremptory norm of general international law (“jus cogens”)→ A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Art 64: Emergence of a new peremptory norm of general international law (“jus cogens”) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Art 66(a) provides for resort to the ICJ in the event of disputes on the content of a jus cogens rule. Treaties v. customary law Limitation of the VCLT: the provisions on jus cogens can only be invoked by States that are Parties to both the VCLT and the treaty that in its opinion is contrary to jus cogens. The problem is mitigated by: - The existence of customary rules on the invalidity of treaties (any State directly affected by a treaty contrary to jus cogens, whether or not party to the said treaty, might invoke its invalidity); - The gradual emergence of a customary rule on peremptory law (does not include the ICJ compulsory jurisdiction, which is instead present in the VCLT) . Community obligations and community rights In general, international rules even if they address themselves to all the States (customs) or to groups of States (treaties) confer rights or impose obligations to pair of States only. However, there are today also rules of international law that provide obligations that are incumbent upon each State towards all the other States of the international community and which are in no way reciprocal. The International Court of Justice (ICJ) in one of its famous judgement - the Barcelona Traction Case of 1970 - traced a long- lasting distinction between international obligations of States declaring that: “[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; their obligations are erga omnes. [...] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law [...]; others are conferred by international instruments of a universal or quasi- universal character. Characteristics of community obligations/rights: 10 lOMoAR cPSD|2805715 • They protect fundamental values; • They are obligations erga omnes; • They are attended by a correlative right; • This correlative right may be exercised by any (contracting) State, whether or not it was materially or morally injured by the violation; • The right is exercised on behalf of the entire international community (or community of States Parties) for the purpose of safeguarding fundamental values. Legal effect of jus cogens rules The treaty or customary rule contrary to jus cogens is null and void. A treaty provision possessing a dubious scope has to be construed in a sense that is consistent with a jus cogens rule. States are bound to withdraw recognition of another State that has emerged as a result of aggression, systematic violation of human rights or of the rights of minorities, etc. Inconsistency with a jus cogens rule makes a reservation inadmissible 11 lOMoAR cPSD|2805715 Others are supposed to present so-called full powers: documents emanating from the competent domestic authorities (typically the foreign minister), specifying that the person concerned is empowered by his home state to participate in various acts relating to the conclusion of treaties. It may include authority to sign, or it may be limited to negotiating. Full powers may also be dispensed with (art 8 VCLT). The two main ways of expressing consent to be bound by treaties are signature and ratification. Unfortunately signature plays a double role: - it can express consent to be bound - often merely the first step towards ratification, signifying that agreement on a text is reached without expressing the state’s consent to be bound. In the past, signature involved a promise to ratify, there was a clear expectation and consequently something of a duty to ratify existed. This has become unsustainable with the rise of parliamentary democracy, a duty to ratify would be difficult to agree with democratic preoccupations. Nowadays if a treaty remains silent, mere signature probably suffices. If and when a treaty provides for ratification, then this is “of vital importance” (ICJ), but if no such provision is made then the default rule would seem to be that signature suffices. The state cannot do what it wants before ratification → art 18 VCLT (“interim obligation”) suggests that a state may not engage in behaviour which would “defeat the object and purpose” of the treaty concerned. The signatory is free at all times to make known an intention not to become a party (to “unsign”), but art 18 does create a good faith obligation (obbligo di buona fede) not to weak the treaty’s raison d’être (ragion d’essere). The interim obligation works well with contractual agreements but less well with law making treaties. It is no coincidence than that courts have redefined art 18 when it comes to law making treaties and have focused not so much on the effect of behaviour, but rather on whether the acts complained of manifested nasty intention. Useful example → Opel Austria decision of EU’s CFI (now General Court). Art 35 Treaties providing for obligations for third States An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. Art 36 Treaties providing for rights for third States A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. Case law: North Sea Continental shelf cases (1969) Case concerning the delineation of the North Sea continental shelf involving the NL, FRG and DK. NL and FRG concluded two bilateral treaties in 1964, and DK and FRG concluded two treaties in 1965. Did some of the rules of the 1958 Geneva Convention on the Continental Shelf apply to non- parties? DK and NL argued that FRG (which had signed but not ratified the 1958 Geneva Convention on the Continental Shelf) had: “by conduct, by public statements and proclamations, and in other 14 lOMoAR cPSD|2805715 ways,...unilaterally assumed the obligations of the Convention; or manifested its acceptance of the conventional regime”. ICJ rejected this contention on the facts of the case but did not absolutely rule out any possibility of such a process. “Only a very definite, very consistent course of conduct on the part of the State”. Reservations The most important provisions of the Vienna Convention are those dealing with reservations to treaties: unilateral acts by which individual states wish to modify or exclude part of a treaty. It allows states to commit themselves without getting hurt, it allows them to join regimes without having to make dramatic domestic policy changes, and it is a tool for flexibility. It remains up to the parties to a treaty to decide how to handle reservations. States may also agree that reservations are allowed to some provisions but not to others. Before WW2 the general rule on reservation was simple: states could make reservations to treaties, provided those reservations were accepted by all their treaty partners → requirement of unanimity, and it handed a veto to all treaty partners. The rise of human rights treaties after WW2 suggested that there was a drawback (inconveniente) to this way of doing things, it might result in states not joining regimes despite their participation being very useful. For the Genocide Convention (1948) the General Assembly of the UN was uncertain how to deal with proposed reservations made by the USSR, related to article IX of the convention, and concerned the possible role of the ICJ in enforcing it. Since these states had never recognized the jurisdiction of the ICJ they were reluctant to grant the ICJ jurisdiction to enforce the Genocide convention. This resulted in two camps: one favoured the universality of the regime and the other side claimed that integrity was of the utmost importance (di massima importanza). The ICJ stated that unless the parties themselves agreed otherwise, reservations to treaties should be deemed permissible as long as they were consistent with the object and purpose of the treaty concerned. While it might be useful to employ the ICJ for purposes of enforcement, this is not thought to be absolutely critical (cruciale). One would either have to accept that treaties might have multiples objects and purposes, or accept that the identification of object and purpose would be possible only on an unhelpfully high level of abstraction. How does one determine whether a proposed reservation is compatible with the object and purpose of a treaty? One option is to have a unified and centralized system for doing so, but no such system exists, the determination is made by all treaty partners individually. The Vienna Convention drafts four different sort of response in art 20. 1. Acceptance → a state can expressly accept a reservation made by another state (rare). 2. Silence → if a state remains silent, then art 20 par 5 VCLT ascribes consent to its position, if a state doesn’t react within 12 months it is considered to have accepted the proposed reservation. (silence means yes) 3. A state may object to a reservation but without wishing to jeopardize (mettere a repentaglio) their treaty relations with the reserving state → the VCLT determines that despite the objection the relations between two states will include the reservation. 15 lOMoAR cPSD|2805715 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 and the entire treaty remains without effects between those two states. Vienna Convention’s regime on reservation is said to be tilted (inclinato) in favour of the reserving state, so much that many have said that allowing for reservations ends up “ruining” treaty regimes. In the ECtHR case law (giurisprudenza) suggested that since it could make binding determinations about the rules of European convention, consequently it could also make determinations concerning the admissibility of reservations. 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’s 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. A third attempt has been to bring the matter to te attention of the ILC (International law commission) which appointed one of its members, Pellet, who said that is undesiderable to change the convention’s regime on reservations, the problem is not so much in the convention, but in the absence of agreement among states. States make reservations, most probably, when they cannot get their way during the negotiations, they lose out and the only way to protect themselves is by making reservations. Pellet suggests that reservations are the price to pay for living in a world of pluralism. La riserva indica la volontà dello stato di non accettare certe clausole del trattato o di accettarle con alcune modifiche, oppure secondo una determinata interpretazione. Così facendo tra lo Stato autore della riserva e gli altri Stati contraenti, si forma l’accordo solo per la parte non investita dalla riserva. Ovviamente la riserva ha senso per i soli trattati multilaterali, perché nei trattati bilaterali, lo Stato che non vuole assumere certi impegni deve solo proporre alla controparte di non includerli nel testo. Perciò, l'istituto della riserva, serve a facilitare la larga partecipazione degli Stati ai trattati multilaterali. Interpretation The very process of interpretation can roughly (approssimativamente) be seen as having three distinct aims: 1. Interpretation is about discovering the objective meaning of a treaty; 2. Interpretation is 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 (dato luogo) to three distinct methods of interpretation: 1. Textual approach. Aiming to clarify the objective meaning of the text. 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. [e.g. “sustainable development”: none has ideas about the meaning, so everyone can read their own favourite meaning] 2. Historical method. 16 lOMoAR cPSD|2805715 are involved). Art 52: coercion of the state. E.g. military invasion. The question at the Vienna Conference was whether the notion of coercion would also cover instances of economic or political pressure. Art 52 is limited to military pressure, it was said that the exercise of economic or 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. If a treaty concluded in violation of a mandatory norm (jus cogens) 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. The easiest way is when parties agree that their treaty must come to an end or the end is the law that decides about the end. 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 or that a treaty will be terminated once the common object has been achieved. Other techniques include the replacement of an old treaty by a new one between the same parties (and the old one must be considered terminated). Art 59 of the Vienna Convention suggests that an older one can be terminated by a new agreement to terminate, regardless of provisions to replace it with a new one. There is the possibility of desuetude (consent plays an important role): a treaty that has not been applied by parties for a long time because none of them wants to apply it may be considered to have fallen into disuse, but when a treaty is not applied because the circumstances for its application do not rise, the desuetude conclusion cannot be drawn. The Vienna Convention offers three possible justifications for unilateral termination: the first of those is the classic contractual idea that the violation by A means that B may be released from its obligations, but only a material breach may be invoked. It is not the gravity of the breach, but the importance of the provision breached. Art 60 recognizes that some multilateral treaties have a public law character and cannot be reduced to bilateral sets of rights and obligations, it does so by granting all parties to the treaty the right to act in response to a material breach. Art 61 allows for termination upon a supervening impossibility of performance (same function as “forza maggiore” or “Act of God” clauses in contract law). Most spectacular way of terminating a treaty is by invoking a fundamental change of circumstances. The great attraction of this doctrine (known as the rebus sic stantibus doctrine) is that it suggests that treaties are only binding as long as they are convenient. The ICJ has been very reluctant in applying, invoking three criteria: 1. the circumstances concerned must have been an essential basis for the parties’ consent, 2. the change must have been unforeseen (imprevedibile), 3. the change must “radically transform the extent of the obligations still to be performed under the treaty”. 19 lOMoAR cPSD|2805715 THE SUBJECTS OF INTERNATIONAL LAW Rights and obligations must apply to someone, it is through subjects doctrine that these rights and obligations under IL are allocated. The main subjects of IL are states, for centuries states were held to be the only subjects, save few oddities (stranezze) (Holy see, Maltese Order) which would be considered subjects for historic reasons and because states generally treated them as subjects. It is now generally recognized that entities such as intergovernmental organizations are to be regarded as subjects of IL, confirmed by the ICJ in the 1949 Reparation opinion. The global legal order clearly counts states and international organizations among its subjects. The question is whether other entities are so recognized: IL has no formal criteria for admission to “subject status”. One may ask oneself whether an entity enjoys direct rights or obligations under IL. If so it is probably safe to say it ranks as a subject of IL. From this perspective individuals are usually seen as subjects of IL, as individuals may enjoy rights directly under IL. It is also increasing recognized that individuals may owe obligations directly under IL. But individuals do not always act alone, they tend to organize themselves in all sorts of groups (National liberation movements, minorities, companies, NGOs…). Yet none of these is unequivocally accepted as a subject of IL, the very category has become something of a political aspiration, for recognition as a subject of IL amounts to a certain degree of acceptance of its goals. Being accepted as a subject implies recognition of political legitimacy. It is impossible to discuss subject status without referring to recognition. Important corollary: the status of legal subject may be very limited, the very exercise of a legal right may constitute subject status while simultaneously being evidence of it. The most important entities having legal personality under international law are: 1. States 2. Insurgents 3. Sui generis entities 4. International Organizations 5. National liberation movements 6. Individuals States States are the main subjects of IL and are generally considered to be sovereign: they need not accept any authority from above or from anyone else unless they choose to do so. Sovereignty is not a natural concept but is socially constructed, sovereignty itself does not signify very much: it doesn’t give rise(origine) to rights or obligations. States are a relatively recent phenomenon. The state became the dominant form of political organization because it had a big advantage: states together could guarantee that their authority would be uninterrupted, whereas the authority of city states never covered the countryside surrounding the city. This is reflected in the criteria that IL posits for statehood, these are often derived from a convention concluded in the 1930s in Montevideo: the American Convention on Statehood. Art 1 lists four requirements that are often considered to be a good starting point for any discussion of statehood and considered as codifying customary IL. 20 lOMoAR cPSD|2805715 Following the Montevideo Convention states should have: a population, territory, a government and the capacity to enter into relations with other states. Population First requirement is that state needs to have a permanent population. How the population got there is considered irrelevant, as the fact that the population is large or small. Territory States should have territory that does not belong to any other sovereign state. The idea of a cyberstate is difficult to conceive. That is not to say that a territory should be completely fixed, the only important criterion is the existence of a core territory (as most states have boundary disputes with their neighbours). Effective government The two remaining criteria are more substantive. State must have an effective government, although the Montevideo Convention itself does not use the adjective “effective”. The central government have to be original, independent and capable of exercising an effective control over the population. Effective government served to allow other states to contact someone if things were going wrong. If a territory lacks effective government there is no one to contact or hold responsible. A state can be accepted as such only when it is in a position to guarantee that law and order will be upheld. This is not to say that IL is very concerned with the precise form of government, as long as law and order can be guaranteed, IL is satisfied. 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 and 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. 21 lOMoAR cPSD|2805715 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 given for rent. 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…) or under the authority of an international organization. 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 affect 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 (assomiglia) secession, but a defining distinction is that the former colonies are based elsewhere in the world and not contiguous with the metropolitan area. 3. States may merge or unite or be reunited (Germany, Yemen, Tanzania). Many currently existing states owe their existence to smaller entities coming together. 4. States may dissolve (Yugoslavia, USSR). Dissolution would seem to be the total break-up of the previous state, with none of the new states continuing the identity of the old state. Yet (eppure) in the dissolution of USSR, a special position was carved out (scavata) for the Russian Federation, to avoid the complete disappearance of the USSR in the Security Council, it was thought better to treat Russia as a special case. Russia was treated as the legal continuation of the USSR in the Security Council. Problem of continuity of treaty. Vienna Convention of 1978 doesn’t say much art 16) newly independent states may start their existence with a “clean state”. Convention pays tribute to decolonization, aims to compensate former colonies for the injustice of colonialism. In case of merger or unification the presumption is that existing treaties continue to remain in force 24 lOMoAR cPSD|2805715 (art 31) unless the parties agree on a different solution; much the same applies to separation (secession or dissolution) under art 34. State successions do not affect boundary treaties or “other territorial regimes”. The Convention needed fifteen ratifications to enter into force, and even this took years to achieve. The convention does have its use, it establishes guidelines for the handling (gestione) of state successions (not very detailed). It does have the great merit of providing diplomats and statesmen with a vocabulary for discussing issues of state succession, in practice states will decide on these issues on the basis of mutual agreement. What happens to citizen of a state that ceases to exist? No general multilateral convention exists as yet. Individuals will have the nationality of the state on whose territory they habitually reside. Membership of IOs is also affected by a succession of states, the basic principle is that membership is personal. Case study: The Turkish republic of Norther Cyprus “Cyprus has been divided since 1974 when Turkey invaded the north in response to a military coup on the island which was backed by the Athens government ..... In 1974 the island was effectively partitioned with the northern third inhabited by Turkish Cypriots and the southern two-thirds by Greek Cypriots. A "Green Line" - dividing the two parts ... - is patrolled by United Nations troops. The UN drew up the Green Line as a ceasefire demarcation line in 1963 after intervening to end communal tension. It became impassable after the Turkish invasion of 1974, except for designated crossing points. In 1983 the Turkish-held area declared itself the Turkish Republic of Northern Cyprus. The status of Northern Cyprus as a separate entity is recognised only by Turkey, which keeps around 30,000 troops in the north of the island.” “The Court ... notes that it is evident from international practice and the condemnatory tone of the resolutions adopted by the United Nations Security Council and the Council of Europe's Committee of Ministers that the international community does not recognise the “TRNC” as a State under international law. The Court reiterates the conclusion reached in its Loizidou judgment (merits) that the Republic of Cyprus has remained the sole legitimate government of Cyprus”. “Having effective overall control over northern Cyprus, (Turkey’s) responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, .... Turkey's “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey. Case study: Taiwan/Formosa Taiwan (Formosa): Resolution 2758 (XXVI) “THE GENERAL ASSEMBLY, • Recalling the principles of the Charter of the United Nations, • Considering the restoration of the lawful rights of the People's Republic of China is essential both for the protection of the Charter of the United Nations and for the cause that the United Nations must serve under the Charter. • Recognizing that the representatives of the Government of the People's Republic of China are the only lawful representatives of China to the United Nations and that the People's Republic of China is one of the five permanent members of the Security Council, Decides to restore all its rights to the People's Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United 25 lOMoAR cPSD|2805715 Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it. 1967th plenary meeting, 25 October 1971”. International organizations It is generally accepted that IOs play a fundamental role in global affairs and in IL. IOs are usually defined as intergovernmental organizations, created by states, usually by means of a treaty, in order to exercise a task or function that states themselves are unable or unwilling (non vogliono) to perform, for example the exercise of collective security (UN), trade (WTO), or development (World Bank). The first IOs were created with a view to managing problems of communication, on international waterways (Rhine commission 1815), or with a view to other means of communication: postal traffic, telegraph, railroad. IOs started to become important players in particular after WW1, when their potential to manage global security was tested. Organizations would further gain popularity after WW2 with the creation of the UN. The leading theory about IOs is referred to (definita) as functionalism, the underlying idea is that whereas states are organized on a territorial basis, organizations are built around functions. Rights, powers, privileges and immunities are necessary to enable them to exercise those functions, and nothing more. Much IL is created by or within IO. Many human activities are somehow within the province of an IO, with one significant exception: the environmental protection. The industrialized states are ready to explore green alternatives and urge less developed states not to make the same mistakes, emerging industrial powers claim a right to industrialize no matter the environmental costs. The environment generally is part of a programme conducted by the UN (UNEP). Organizations are the creatures of their member states. IOs possess international personality when: the founding fathers intended to create an autonomous body or the organization enjoys de facto autonomy from the Member States. Plenary organs are typically organs for debate and discussion rather than quick decision making. Since plenary organs will usually only be in session once a year or even less, many organizations will have an executive organ to handle urgent matters and possibly matters within their own delimited sphere of competence (typical example is the UN Security Council whose main task is to secure international peace and security). Most decisions require a majority of nine votes (out of 15), including the “concurring vote” of the permanent members. This is known as the latter’s veto right, and a constant topic of debate, in that many feel that a privileged position for a handful of states is unfair, while the privileged position of the five permanent members (USA, Russia, China, France and UK) is historically understandable, it has lost quite of its legitimacy. It is arguable that France and UK should no longer be seen as superpowers. The EU could possibly also claim superpower status in its own right but, as it is not a state, it cannot join the UN, the membership is only open to states. 26 lOMoAR cPSD|2805715 CH. 5 – JURISDICTION 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 sovrapposti) principles, not laid down (previsti) 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. IL allows domestic law to be based on any of these principles or a combination it doesn’t bind states, they are under no obligation to accept the principle of universal jurisdiction, except and to the extent that 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, its 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, this led to 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, signify that sovereignty and territory go hand in hand (di pari passo). Things get difficult when two or more states are involved, problems as behaviour originated in A’s territory but the effects were felt in B, it’s generally accepted that both states can claim jurisdiction. Decision of the PCIJ in the Lotus case was based on objective territoriality, after a Turkish and French ship had collided on high seas, the Courdt held that the effects of the collision were felt in Turkey and so Turkey can claim jurisdiction. 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 (entusiasta) to claim authority than the other. 29 lOMoAR cPSD|2805715 Protection It is generally accepted that states can claim jurisdiction over activities that endanger them (li mettono in pericolo), 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, the idea is that injuring a citizen of a state is similar to injuring the state. Highly controversial because 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 derived in response to the emergence of piracy. Universality has been utilized in connection with gross violations of human rights, the 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, allowing claims without any connection with Belgium 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 30 lOMoAR cPSD|2805715 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”). European states have resisted this practice with the so called “blocking statutes”. Yet the CJEU itself has started to be as aggressive as US courts: in the Woodpulp case, it fined four large wood pulp producers for violating EU competition rules, despite the circumstance that all four where located outside EU. ECtHR Human rights treaties provide protection to everyone within their jurisdiction, this seems to mean that protection is not limited to a state’s territory strictly speaking, but also extended to other settings. But the court seems to suggest that the “legal space” created and protected was, in principle, limited to the parties’ territories. Loizidou case: Turkey might be responsible for its behaviour in the Turkish parts of Cyprus, both Cyprus and Turkey were parties to the convention. Bankovic case: the convention did not extend outside the states parties to the convention, former Yugoslavia was not a convention party and so the inhabitants had no pre-existing rights under the convention. Concurrent jurisdiction Several states may be able to claim jurisdiction over one act, universality principle is not usually invoked for common crimes. In cases of concurrent jurisdiction it’s a problem to figure out which state has the stronger claim, the best cards are held by the state holding the suspect in custody, unless states want to conduct trials in absentia they cannot proceed without a suspect: states will have to ask for extradition. Some treaties stipulate an obligation to either prosecute or extradite (aut dedere aut judicare), e.g. the 1999 Terrorism Financing Convention. Powers of IOs IOs lack their own territory and lack their own population, so their authority must find a different basis. The leading theory is that organizations are established on a functional basis, their authority derives from their function or functions, and this is usually captured by claiming that IOs can exercise legal 31 lOMoAR cPSD|2805715 The fact that the statutes of the ICTY and ICTR explicitly lifted (solleva→ sospende) 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 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 (arredi) and property, as to the means of transport of the mission, and also applies to the private residence of diplomats. Archives and documents 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. 34 lOMoAR cPSD|2805715 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. 35 lOMoAR cPSD|2805715 THE INDIVIDUAL IN INTERNATIONAL LAW For centuries, IL didn’t think of individuals in other than a highly abstract sense. Individuals were citizens of states, IL was the law between states, so they were objects to IL but not subjects, they weren’t considered to be capable of rights and obligations under IL. States could treat their citizens as they pleased, only towards citizens from other states there were an obligation to respect some basic principles. Individuals are more and more recognized as subjects of international law because they are holders of human rights under certain treaty provisions that are also granting to them the right to petition international bodies and holders of international obligations (in particular to refrain from committing international crimes). From slavery to human rights The first issues which directed the attention of IL to individuals were slavery and the slave trade. By the end of the century slavery had become generally outlawed in the western hemisphere. The 1885 General Act of the Berlin Conference, known for having regulated the “scramble for Africa”, contained at the art. 9 a provision emphasizing that slave trading was prohibited in IL, and the Africans territory may not be used as a market or means of transit for the trade in slaves’. Five years later the Brussels Conference, devoted to ending slavery, where the preamble of the declaration underlined that what followed was a collection of measures intended to put an end to the Negro Slave Trade by land as well as by sea, and to improve the moral and material conditions of existence of the native races. By 1926 a Slavery Convention could be concluded under auspices of the League of Nations, roundly (esplicitamente) condemning slavery and the trade in slaves. The League of Nations was instrumental in creating the first instrument for the protection of minorities. This was the direct consequence of the Versailles Peace after WWI, boundaries had been redrawn started including minorities. While the intention of stimulating the self determination of nations and peoples in Europe had come to a naught (nulla), at least the sentiment inspired the conclusion of treaties for the protection of these national minorities: states were only allowed to join the League of Nations once they had committed (impegnati) to minority protection. The minorities treaties and the Slavery Convention could be seen as protecting human beings, they did so treating humans as groups, and by casting humans as victims. After WW2 there was a changing attitude, humans started to be seen not just as members of groups, but as individuals in their own right; this marked the birth of international human rights law. The idea, born in an era of totalitarianism, was that individuals needed to be protected against their own governments, consequently HR apply in relations between government and governed, rather than in relations between individuals. This idea had a hesitant start, the UN Charter contains only few references to HR. Ensuring respect for HR is one of the purposes of the UN and articles 55 and 56 provide the UN with the tools to formulate HR policies. The real breakthrough came in 1948 when Universal Declaration of Human Rights was adopted by the General Assembly, is technically not considered as a legally binding document, but its influence has been enormous. The Declaration contains a set of rights said to be of a universal character, notions such as freedoms of expression, of religion and of assembly, but also less obvious ones, as the right to have paid holidays. 36 lOMoAR cPSD|2805715 Many HR have difficult time being applied in a specific manner. HR cannot be analogized to contractual rights or intellectual property rights, those are rights that a court can guarantee in a meaningful way, but how a court can guarantee the right to life? They can’t prevent people to getting killed or from contracting diseases. At least the right to life can be understood as entailing, for instance, an obligation on the government to launch an investigation into suspicious deaths. Construed.as a set of procedural obligations, it means that ECtHR doesn’t need to take a stand on the great and controversial moral issues involving life, such as abortion, euthanasia or assisted suicide. Group rights Individual rights are often said to be based on human dignity, but individuals don’t exist in a vacuum. They are inevitably defined by the groups they are part of, their families but also their communities. It’s sometimes claimed that civil and political rights form the first generation of HR, while economic, social and cultural rights make up the second generation. The so called third generation of HR refers to collective rights. The first manifestation was the treaties concluded by minorities. After WWII and the Holocaust, in 1948 there was the Genocide Convention. Its aims were to prevent and punish genocide, defined as violents acts with the intent to destroy a national, ethnical, racial or religious group. The problems are that violence against other groups doesn’t qualify genocide and is difficult to prove the intent to destroy. Often mention is made of a specific intent (dolus speciali) which goes above and beyond the intentions already present in the act of violence themselves. Thus art.2 provides that deliberately inflicting certain conditions on a group is an example of an act which may amount to genocide. Other collective rights include the right to self-determination, but also, it’s sometimes claimed, such rights as the right to a clean environment. Indigenous peoples may have collective rights to enjoy their culture. Minorities may have a right to be educated in their native language and perhaps, even in some cases, arrived to political autonomy or self-government within the framework of an existing state. Another issue is how the group right relates to individual rights; is a religious minority entitled to force its religion on young adults who have been born to religious parents but won’t to live church without leaving the community altogether (tutto insieme)? such an issue arises in Canada in the 1970s, when Canada’s Indian Act made it impossible for a Canadian Indian woman, to return to her tribe of her birth after her divorce from a non-Indian man. The legal provision at issue in this case was art. 27 ICCPR which aims to protect the collective rights of a group to enjoy its culture by means of creating an individual right member of the group. Self-determination Individuals derive much of their identity from the groups they are embedded in while we are born alone and die alone, in the meantime we are part of a family, a community, to school together. Since individuals derive their identity from the groups they are a part of, such groups may also require protection. This sentiment is all the more prominent if and when such groups are under threat (minaccia). A minority abused by majority may need a legal protection, such protection has been looked for IL. The right to self-determination entails that identifiable groups have a right to determine for themselves how they wish to be politically organized. 39 lOMoAR cPSD|2805715 Under the influence of colonization, this right became enshrined (sancito) in the two UN HR covenants of 1966 and was confirmed in the Declaration of Principles in 1970. Under this declaration, self-determination can take the form of independent statehood, association or integration with another state, or some other political status. It is generally considered a rule of customary IL and the ICJ referred to self-determination as an erga omnes principle. Two major problems associated to self-determination: - The identification of the “self”: who bears the right to self-determination? One might think about sharing some objective factors such as language, ethnicity or history. But this doesn’t work, e.g. Americans and Australian share the same language but they aren’t one people. Where objective factors are under-inclusive or over-inclusive, attention shifts to subjective factors: a people is a people if this is the group’s self-identification. It has been noted that groups are often socially constructed, they are not authentically existing communities, but have been created by means of mass media or propaganda. - The main claim related to it is a claim of secession, but that in turn is difficult to reconcile with the stability of existing statehood. The right of self-determination of one group may conflict with the right to continued statehood of another group, and in absence of any hierarchy on IL, the result is bloodsheds rather than peaceful secession. It may be more fruitful to regard the right of self-determination not so much as leading to a right of secession, but as leading to either “internal self-determination” or as a right to political participation on equal terms for the minority. Nationality Typically, domestic law chooses one of two main methods for granting nationality: - Jus sanguinis: children will acquire the nationality of their parents, regardless of where they are born, following the bloodline. - jus soli: nationality is granted to everyone born on a state’s territory. IL doesn’t yet have to say much about the granting of nationality, excepting by setting limits to the freedom of states. About the situations of dual nationality, the current trend in Western Europe is to be strict, if people emigrates, for instance, and take on the nationality of their new state of residence, they lost automatically their old nationality. Taking on a new nationality is made more difficult, in many states individuals have to take exams showing some knowledge of the local history and culture, or mastery of the local language. Nationality determines whose passport the individual can carry, the right to diplomatic protection can only be extended to nationals, and political rights (as right to vote) are often tied to nationality. One exception is created by EU, which has invented its own notion of citizenship, complementary to the national one. EU citizens in distress outside the EU may be able to ask for help from the consulates or embassies of other member states, and this citizenship also comes to affect the right to diplomatic protection. 40 lOMoAR cPSD|2805715 The right to have rights? Stateless persons, refugees and migrants Hannah Arendt suggested that rights are often dependent on the notion of citizenship. Before the introduction of HR in international instruments, were typically granted to citizens of states. The stateless are no members of any community, and thus have few or no rights and no rights relating to the participation in public affairs, such as the right to vote or to run for an office. The relevant question whether people have “the right to have rights” to begin with. Some HR instruments had tried to solve the problem providing protection not just to citizens of contracting parties, but to everyone who comes within the jurisdiction of the instrument concerned. Art 1 ECHR provides that parties shall secure to everyone within their jurisdiction the rights enshrined (sanciti) in the convention. The HR of those have left their native community: under the Refugee Convention only those who flee for fear of political persecution may qualify as refugees and consequently obtain refugee status. This leave out those who flee for economic reasons (poverty, malnutrition) that aren’t considered refugees and the convention is applied only to those who cross boundaries, who remains within his territory is considered internally displaced person. The 1951 refugee convention was born after WWII and originally was limited to protecting those who have fled (fuggiti) the Nazi horrors and the Stalinist terror. Later the convention was complemented by a protocol concluded in 1967 which broadened the protection to other settings. The central provision is the art. 33 of the Refugee Convention about the prohibition of non- refoulement (non respingimento): “No Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Some of western states have started to treat refugee application offshore, on the questionable argument that the non-refoulement principle only applies to refugees who have alreadu entered their territory or have assigned the first screening of potential refugees to private companies, such as airlines. In such cases, individuals may be sent away before actually being able to present their case, and since they are sent off by private companies, there is no administrative decision they can appeal to, and the state can escape responsibility by claiming that decision was made by a private company. Art. 2 Refugee Convention points out that refugees have responsibilities towards the state that accepts them, and art. 9 authorizes a suspension of the rights of refugees in times of emergency. Since the scope of HR is based on jurisdiction rather than its territory, refugees may find protection under HR conventions, for instance, when located in a state party to the ECHR, under art. 6, refugees should be given access to courts. Migrants too are protected by the HR instruments prevailing the country where they reside, but there are some differences and for that reason has been concluded a convention on migrants’ rights. The labour rights are an important and necessary group of rights. While here too much is left to domestic law, some labour standards have been formulated on the international level, under the auspices of the ILO (international labour organization). The ILO was born after WWI and the creation was inspired by the fear that working people would en masse opt for communism unless their situation were improved. 41 lOMoAR cPSD|2805715 A special case is provided by insurrectional movements, their conduct is unlikely to be attributable to the sitting government representing; IL prescriber that the state will be held responsible should the insurrectionists succeed. Circumstances precluding wrongfulness Articles 20-25 of the articles on state responsibility. The circumstances preclude wrongfulness but don’t make the original obligation go away. Subjective situations (the conduct is responsive to another state’s conduct): • Consent of the State injured • Self-defence • Countermeasures in respect of an international wrongful act (an act that takes place in response to another wrongful conduct) Objective situations: • Force majeure • Distress (alternative courses of action exist, but would demand sacrifice of the actor concerned) • State of necessity in case of an “essential interest” when there is a “grave and imminent peril” for the State concerned (art. 25), this is to protect a vital state interest Consequences of the responsibility The obligations of the responsible State must: • cease the wrongdoing (art. 35) • offer assurance of no-repetition (art. 36) • offer full reparation (art. 37) For material damage: restitution in kind, compensation. For moral damage: satisfaction. Art. 35 of the articles on state responsibility provides the restoration of the status quo ante. Failing this, reparation may take the form of compensation, and sometimes satisfaction is considered sufficient (art. 36 and 37). The function of the reparation is not to punish, but to repair and is based on the idea that is inappropriate to punish the sovereign. Restitution, the main form of reparation, includes the cessation of the wrongful act. In the case of status quo ante is not possible to be restored, the compensation is an useful alternative. The third form of reparation is satisfaction, this may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality. This is always useful in connection with moral damage. The idea of punishment is abandoned, art. 37 prescribes that satisfaction shall not be humiliating. Responsible to whom? In IL obligations are typically bilateral. The law of state responsibility thinks primarily in terms of bilateral obligations, even if there are some exceptions as the HR treaties. 44 lOMoAR cPSD|2805715 When are involved common interest of the international community or collective interests, art. 48 of the articles on state responsibility allows others to invoke the responsibility of the wrongdoing state. With some obligations any state, whether injured or not, can act against the wrongdoing state, and this is a far cry from the traditional horizontal system of bilateral relations. Some obligations are not just owed towards one’s treaty partners or other individual states under customary IL, but also owed towards to the international community of states as a whole – so called obligations erga omnes. The concept of erga omnes obligations initially didn’t attract attention, but over time has come to be regarded as one way in which the common interest may find protection. All states are under an obligation to refrain from recognizing the illegal situation, they are under an obligation not to render aid or assistance to the wrongdoing state, and to ensure compliance by that state. The idea of allowing any state to intervene in order to stop gross injustices (genocide, ethnic cleansing) retains strongly seductive quality. Another controversial idea is that states could commit crimes and thus be held criminally responsible. This was controversial not only because presupposed a public law element, but also because introduces a punitive element. In other words, aggravated responsibility arises when a State violates a rule laying down a “community obligation” that is: • Either a customary obligations erga omnes protecting such fundamental values as peace, human rights, the protection of the environment, etc. • Or an obligation erga omnes relevant for the contracting parties to a multilateral treaty protecting these values. Any other State (or State Party), whether or not it was materially or morally damaged by the wrongful act, can invoke the responsibility of the wrongdoer, hence pursuing a community interest. Responsibility of IOs IOs were set up to exercise functions delegated by their member states, so if they happened something wrong, the member states could, at least in theory, be held responsible. For a long time it was thought that a responsibility regime for IOs was not so necessary. When debtors of ITC (international tin council) approached its member states for compensation, they invoked the separate legal personality of the council in order to escape liability. As a result, international lawyers started thinking about a set of rules on the responsibility of IOs, ILC began working in 2000, appointing Gaja as a special rapporteur on the topic. The work was very difficult for two considerations pulling in opposite directions: - The rules on responsibility must follow the rules on state responsibility, applying the same 2 basic principles of attribution and internationally wrongful act - IOs are typically composed of states and perform functions delegated by states, but they are not identical to states, they differ in some fundamental aspects as they have no territory, no sovereign jurisdiction, and so… IOs are bound by the rules of general IL, but there are not all that many rules that an IO can violate. In 2011 ILC adopted Articles on the Responsibility of International Organizations, but their status in IL is unclear. To the extent that the articles follow the Articles on State Responsibility, they are authoritative, and possibly have the force of customary law. IOs can best be held responsible by borrowing notions from administrative law. 45 lOMoAR cPSD|2805715 Individual responsibility IL has for century recognized something similar to the responsibility of individuals for their conduct, because states are abstractions that cannot act except by means of people of flash and blood (in carne ed ossa). Individuals will be held responsible directly under IL without domestic law functioning as an intermediary. The distinction compared to the responsibility of states and IOs is in the distinction between primary and secondary rules hardly works. Shared responsibility? A focus on individual responsibility ignores the underlying framework that sometimes facilitate gross crimes. Conversely focusing on state responsibility tends to ignore the role, sometimes decisive, of individuals. 46 lOMoAR cPSD|2805715 Court cases involving states can be divided into five stages, the court must: 1- Figure out if the court has jurisdiction to decide the complaint 2- Check if the complaint is admissible 3- Indicate whether interim measures of protection are called for 4- Proceed to the merit 5- (Eventually) Decide on the compensation Jurisdiction There isn’t such thing in IL as truly compulsory jurisdiction, states will have to consent to the jurisdiction of international courts and tribunals. In some cases, they do so by joining a regime that has a court with compulsory jurisdiction. In most cases, joining a regime doesn’t automatically subject a state to the jurisdiction of a court that may operate within that regime, for instance, under the various UN HR conventions, a state can be a party without accepting the optional protocol that would provide the quasi-judicial treat bodies (their work resembles of a court but their decisions are considered not legally binding). Art. 36 ICJ “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: • the interpretation of a treaty; • any question of international law; • the existence of any fact which, if established, would constitute a breach of an international obligation; • the nature or extent of the reparation to be made for the breach of an international obligation. All cases which the parties refer to it The parties can conclude an agreement in which they submit the dispute to the ICJ’s jurisdiction. The court have to verify the reality of both state’s acceptance, if it’s not certain dismisses the case. This because if a state isn’t convinced the matter should go to the ICJ, will not very inclined to respect the judgement, so is better have no judgment than have one that will be disrespected. All matters specially provided for … in treaties and conventions in force Quite a few treaties envisage that when a dispute arises concerning the interpretation or application of the treaty in question, the ICJ may be seized. The typical formula in a jurisdictional clause provides the JCJ with jurisdiction in case of a dispute involving interpretation or application of a convention. Sometimes the jurisdictional clause is laid down in a substantive treaty provision, sometimes also can it be part of an optional protocol. The optional clause The drafters of the statute in 20s were convinced that states should accept, without further ado (senza ulteriori indugi) the ICJ’s jurisdiction as compulsory. All states were invited in art 36 par. 3 to declare to accept as compulsory the court’s jurisdiction. 49 lOMoAR cPSD|2805715 This would mean that if a dispute involves two states and both issued such a declaration, the court would have jurisdiction. This seemed a good idea but much of the work was removed by allowing states to insert all sorts of clauses and conditions, and since the system works only in case of reciprocity. Reciprocity in the case of declarations accepting the compulsory jurisdiction enables a party to invoke a reservation to that acceptance which it hasn’t expressed in its own declaration but which the order party has expressed in its declaration. Some optional clause declarations exclude disputes with some particular groups of states: e.g. USA maintained the declaration in force but carved out an exception for disputes involving multilateral treaties with other American states (Nicaragua Case). Sometimes states may be inclined to exclude issues that they anticipate to be controversial, e.g. Canada introduced environmental legislation and immediately amended its optional clause to exclude the new legislation from the jurisdiction of the ICJ. Automatic reservations: clauses in a declaration by which a state claims that it will accept the ICJ’s jurisdiction except for matters failing within that state’s domestic jurisdiction or related to its national security, to be decided by the state itself. Here too reciprocity applies, which means that a state with such an automatic reservation, should it bring a case against another state, cannot prevent that other state from invoking its own automatic reservation against it. Since optional clause declarations are unilateral undertakings by states, they are free to amend or withdraw them in any time, but the court has held that amendments or withdrawals cannot take immediate effect. Transferred jurisdiction The ICJ is legally the continuation of PCIJ, so if states referred to the PCIJ’s jurisdiction that is transferred to the ICJ. Art 36 ICJ “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice”. Forum prorogatum The court can exercise its jurisdiction based on an ad hoc acceptance. If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of subsequently accepting such jurisdiction to enable the Court to entertain the case: the Court thus has jurisdiction as of the date of acceptance under the forum prorogatum rule. Admissibility The ICJ has an inherent power to decline to exercise jurisdiction for the safeguard of the judicial function. Courts will not normally hear cases brought by anonymous plaintiffs. The customary law recognizes some limits to the freedom states to bring complaints to The Hague, the most relevant are the exhaustion of the local remedies and the rule concerning the nationality of complaints. 50 lOMoAR cPSD|2805715 If the situation is at the inter-state level alone, there is something proper about not allowing conditions of admissibility to intervene and possibly prevent a peaceful, judicial solution The only situation then where admissibility conditions rend to come into the picture is when states exercise what is often referred to as diplomatic protection on behalf of their nationals. Exhaustion of local remedies States cannot bring cases to the ICJ unless the individual (or entity) concerned has tried all relevant legal remedies in the state where the wrong has occurred. This is based on two policy considerations: - it gives the accused state a chance to rectify things before the matter is taken to the international level - prevents diplomatic channels from clogging up (intasare) The nationality of complaints States can only bring complaints on behalf of their nationals, be they individuals or companies. The idea is that wrong against the individual or companies is an affront against the dignity of the state of nationality. Nottebohom case mid 1950s : ……………. If only because the granting of nationality is usually left to states, it’s not for the ICJ to decide on the validity of naturalization. The “genuine link” requirement had largely used in case of dual nationality. Interim measures of protection It may sometimes happen that the court Is asked to order a state to stop behaving in a certain way, so as not to endanger any rights prior to a final decision by the court. Discussion on the legal nature of interim measures: under art. 4 ICJ seems that such measures are not binding but this is not the only possible reading of the art 4, another argue that since the article is concerned with protecting the rights of the parties during proceedings, they must by their very nature be compulsory. Compensation The court has the possibility, if it finds that one of the parties has violated its obligation and the other has suffered financial or other losses, to order compensation. Miscellaneous issues Non-appearance (contumacia) The ICJ statute contains a provision (art. 53 ICJ) ordering the court, in case of non-appearance, to make sure that the applicant’s claim is well founded in fact and law. Third parties and the court International legal disputes are typically structured and conceived of as bilateral disputes. Art. 59 ICJ provides that the decision of the Court has no binding force except between the parties and in respect of that particular case. Under the art. 62 ICJ, if a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene, in order to protect its interests. 51 lOMoAR cPSD|2805715 Collective security After WWI, the League of Nations Covenant came close to providing for a collective security mechanism but did so still in hesitant terms. Art. 11 of the Covenant prescribes “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations”. The language suggests the link between collective sanctions and collective security, seems that the collective sanctions concern first and foremost the scourge (flagello) of war. The article didn’t specify which organ of the League should take the action, or what sort of measures could be taken. Moreover art. 16 provided that the League’s member states could take economic sanctions against aggressor states but left both decision-making and execution to the member states themselves. The international community got a second chance drafting the UN Charter and created a much more effective system. Art. 39 of the UN Charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Those measures fall into three groups: Under art. 40 UN Charter the Council can take provisional measures, in order to safeguard the rights of the parties. In practice the Council has rarely took provisional measures but ordered measures under artt. 41 and 42 UN Charter that have the same conserving effect as provisional measures and can be ordained for any period of time. Art. 41 refers to measures not involving the use of force (severance of diplomatic relations, interruption of economic relations, …..) Art. 42 even allows all forcible measures. The idea was that member states would place troops at the UN’s disposal which would act at the behest of the Security Council to implement forcible measures, in practice no such force has ever been created. As a result, the Council authorizes member states to take any action necessary to repel an aggressor state. This system works only if Security Council identifies any threat to the peace, breach of the peace, or act of aggression; the other way around no collective actions will take place. Here the veto power of the 5 permanent members is often maligned. The veto is very often maligned but its creation was based on the thought that if the global community wants peace and security to be restored and maintained. Art 25 provide that the Members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter, so such decisions are binding for states. Is unclear whether the words “in accordance with the present Charter” refer to decisions of the Council, or to implementations by member states. The standard practice of “authorizing” actions provokes two fundamental legal issues: - if the UN merely authorizes action, can it still be called an UN action? The answer is “depends” on the scope of UN control: if the action is in reality an action by a single state (or a group of states) without any UN involvement, then the action can hardly be deemed UN action. UN authorization may help to legitimate what would otherwise be possibly unlawful use of force. - Is the authorization limited in time? The practice of the Council is to leave this open. 54 lOMoAR cPSD|2805715 Triggering (attivare) collective action The collective security system is activated if Security Council identifies any threat to the peace, breach of the peace, or act of aggression. But, what does “an aggression” means? An act of aggression is whatever IL says it is, but this is not of much help. In practice, the Council has not limited itself to the armed conflicts. The council proceeded by suggesting that also non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security. The General Assembly in 1974 adopted a more traditional approach trying to fill the gap of the art 39 about the definition of aggression: listed a number of events would constitute aggression. The risk was that any of these activities would automatically be condemned, regardless of the circumstances and intention behind them, but there is a saving clause: those acts don’t constitute aggression if they are in accordance with UN Charter. The Charter, unfortunately, is not very precise on what constitutes aggression, so is a circular and inadequate provision. Since there is no delimitation in the Charter in respect of art 39, it’s hard to find any limits that the Council could transgress. The Council has the discretion to identify or not an “art. 39” situation, and non-identification can have many causes. There is no obligation for the Council to identify a threat to the peace, breach of peace or act of aggression. The role of General Assembly To avoid the cases in which the Council is stuck in the veto, General Assembly found a mechanism: within the limits of its power, the Assembly too could authorize the use of force against aggressor states. Since the power of the Assembly are limited to recommendations (except on topics internal to the running of the UN organization), it follows that the Assembly cannot order peace operations, but can at best recommend them. Its decisions are not binding. Where the Council can, under art. 25, impose operations against a member state’s will, Assembly operations need the consent of the state concerned. Peacekeeping is not formally regulated in the UN Charter, but has been created in practice, a typical example of the UN implied powers. The biggest political problem arises the financing of the peacekeeping: should the peacekeeping operations be paid from the regular UN budget? The Assembly referred the matter to the ICJ for an advisory opinion and the court said yes. Peacekeeping UN’s peacekeeping force: United Nations Emergency Force (UNEF). The UN’s Secretary-General from 1953 to 1961 formulated a number of principles of peacekeeping: it is a temporary action, to be carried out in complete impartiality, without the 5 permanent members of the Security Council delivering troops, under unified UN command and it requires the consent of the host state. The impartiality requirement sometimes proved difficult to maintain, it’s difficult to stay impartial in the face of naked aggression. Over the years the concept of peacekeeping has evolved considerably, it has become customary to speak not merely of peacekeeping but also of peace-building; in 2006 the UN created a new sub- organ: the Peace-building Commission to address that issue. 55 lOMoAR cPSD|2805715 Individual sanctions Since the UN is an IO consisting of member states, it stands to reason to expect that the addresses of its decisions should be those member states. Decisions, whether taken by the Council or by the Assembly, were invariably addressed to the member states because, on any conception of IO, the UN has no authority over anyone but its members. This is confirmed by the art. 2 par. 6 of the UN Charter which provides that the UN shall seek the assistance of non-members states in activities related to peace and security, it cannot simply presume that those states are bound by whatever the UN decides. The most common form of sanctions is those affecting individuals. This is a reply to the classic critique that sanctions against states are not precise because they tend to victimize the population, without actually getting at the individuals who are considered involved in oppression or aggression. Hence, the invention of “targeted sanctions” with the aim of the establishment of limits on the freedom of movement of individuals. Individuals become blacklisted, the practice has provoked a lot of criticism: the individuals blacklisted have none of the formal guarantees of a fair trial and once an individual is on the blacklist, the UN has no legal procedures available for contesting the blacklisting. Hence, it’s often suggested that such sanctions are a violation of HR by not offering guarantees of fair trial and any possibility for appeal. EU regulation implements the Security Council decisions and decisions from relevant sanctions committee. Limits to the Security Council? Since the end of the Cold War, the Council has become very active, and some of its decisions have even come close to being legislative in nature. Art 25 of the UN Charter suggests that members are bound to give effect to Council action in accordance to the present Charter, but remains unclear whether this refers to Council action, or to the obligation of the members to implement Council action. It would be anomaly if the UN sponsored HR treaties and held governments to account for unjust behavior, while all the time ignoring HR standards itself. 56 lOMoAR cPSD|2805715 held, would be more in line with the law on the state responsibility which, after all, holds states responsible even for the ultra vires acts of their officials and organs. It is sometimes posited that self-defence may also take the form of attempts to rescue nationals abroad. On such view self -defence is justified not only when state’s territory is under attack, but also when its national (residing abroad) are under attack. Other claim that rescuing national abroad would be an independent right under customary international law. Art 51 envisages both collective and individual self-defence, and thereby allows for the creation of self-defence alliances. For example, Art 5 NATO stipulates that and armed attack against one of the members may be seen as an armed attack against all of them and gives the other members the right to come in defence of the attacked state. → this article was invoked after the attack on the twin towers on 9/1; NATO’s members states agreed that those events represented an attack on the USA and that therefore they were legally justified in helping the USA. (ex ante agreement) It is possible also to create ad hoc alliances. Humanitarian intervention Even though the Charter does not specify it in so many words, states are entitled to use force for humanitarian reasons. The most recent was NATO’s intervention in the former Yugoslavia in 1999 to compel Serbia to stop committing atrocities against the population of Kosovo. In the absence of authorization by the Security Council, the position seems to be that humanitarian intervention is prohibited, but if that occurs and seems morally justified or legitimate, the world community grudgingly (a malincuore) accepts it. It shifts the discussion from a legal debate to a morality one, but without providing guidance as to when intervention would be justified and under what conditions. For this reason, the debate has taken a new dimension since in 2001 the Canadian sponsored International Commission on Intervention and State Sovereignty (ICISS) launched the idea of states having a responsibility to protect oppressed people, including against their own governments. Under this idea (called R2P: responsibility to protect) states have the responsibility to protect individuals. Where they fail to exercise this responsibility within their own boundaries, others are entitled to step in, at least when it concerns genocide or ethnic cleansing. Compared to the humanitarian interventions, under the R2P the international community should not just intervene to stop on-going atrocities but should also help to prevent atrocities from occurring and should also be involved in rebuilding war-torn (devastato dalla guerra) societies, if necessary by means of establishing a long-term presence. Under R2P sovereignty becomes conditional and ultimately subjected to approval by the international community. Terrorism IL has always found it problematic to present a universally accepted definition of terrorism, despite attempts to do so going back to the ‘20s, in the aftermath of WWI. Part of the problem is that terrorism tends to be politically motivated, resulting in the circumstance that what some regard as acts as acts of terrorism may be regarded by others as romantic acts of resistance. The international community has aspired to combat terrorism in two ways. The first has been to focus on the prohibition of specific acts of terrorism, regardless of the motivation behind them or the status of the perpetrator. On the other strand the approach has been focused on acts related to and facilitating terrorism. 59 lOMoAR cPSD|2805715 Emblematic is the 1999 International Convention for the Suppression of the Financing of Terrorism, which makes it a punishable offence to provide or collect funds for terrorist activities. The Council of EU sponsored the conclusion of the 2005 Convention on the Prevention of Terrorism, which contains provisions on recruitment of terrorists, training terrorists and public provocation. The 1977 Council of Europe Convention for the Suppression of Terrorism mainly aims to create a special regime for terrorism in extradition law, stipulating for instance that terrorists act cannot qualify as political offences and thus result in terrorism suspects escaping from extradition. The attack on New York’s WTC on 11th September 2001 suggested that there were still holes in the network of conventions, allowing terrorists to operate from a handful of states. In order to counter this, the Security Council adopted its Resolution 1373 on 28th September 2001: member states of the UN are under an obligation to prevent and suppress the financing of terrorist acts criminalize the collection of provision of founds, freeze assets, refrain from all kinds of support to terrorist acts, deny sage haven and prosecute and punish terrorist suspects. The Security Council crated a set of legal obligations for all its member states, going beyond what many hold to be the limits of its power and breaking the classic idea of state sovereignty, according to which states cannot be obliged to do things without their consent. It could be argued that states gave their consent when they joined the UN and agreed to accept and carry out the decisions of the Security Council, but on the other hand in Resolution 1373 the Council comes so close to legislating that it acts ultra vires and member states cannot be expected to accept and carry out ultra vires decisions. After the 11th September 2001 the Security Council unanimously adopted a resolution in which it recognized the right to self-defence against terrorist acts. The end of armed conflict Not all armed conflict comes to an end by means of a peace treaty. Typically, during armed conflict, there may be negotiated ceasefires and armistices, or the end may be a formal surrender, The war between Iraq and Kuwait too was concluded by means of a resolution of the Security Council. The declarations of war have become rare in inter-state conflict, so has the term “peace treaty” come into disuse in relations between states. Expressions such “agreement on the normalization of relations” tend to be preferred. Peace treaties continue to be concluded following civil conflicts. Typically, such agreements do not merely bring conflict to an end, but also contain provisions on reconstruction and transitional justice. 60 lOMoAR cPSD|2805715 THE LAW OF ARMED CONFLICTS Definitions: - Jus ad bellum: law relating the right to wage war - Jus in bello: rules on how force can legally be used - Jus post bellum: reconstruction after hostilities (special regimes) The distinction between war and peace is not nearly as clean as It once may have been, it is difficult to say where peace ends, and war begins. International humanitarian law International humanitarian law is the body of rules and principles applicable in armed conflicts to limit means and methods of warfare, protect those who do not or no longer take part in the hostilities and balance military need with humanity. The law of armed conflicts has historically been divided into two groups: the first is about instruments containing restrictions on the conduct of hostilities, the second are provisions to protect victims. Four conventions concluded in Geneva in 1949, the total body of rules also comprises two additional protocols to the Geneva conventions, concluded in 1977 (Protocol I and Protocol II). The law of Geneva is designed to safeguard military personnel who are not or are no longer taking part in the fighting and persons not actively involved in hostilities, particularly civilians. The 1993 Chemical Weapons Convention outlaws the production, stockpiling and use of chemical weapons. The law of armed conflict is informed to the sentiment not to multiply the evils of war, so should not cause unnecessary suffering. Two principles play a key role: - Principle of distinction: combatants and civilians should be treated separately, as should military and civilian targets, this means that civilians may never be the object of attacks. - Principle of military necessity: not to cause unnecessary suffering to combatants. These two principles have been fleshed out in the rules of the law of armed conflict, and this is the Geneva conventions aim: - Convention I: the amelioration of the condition of the wounded and sick in armed forces in the field. - Convention II: the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea. - Convention III: the treatment of prisoners of war (must all times be humanely treated). - Convention IV: to the protection of civilian persons in time of war. The IHL aims not only to protect civilians from being killed or hurt by direct military activities, its protection also extends to works and installations cultural objects and to the environment. Under additional protocol I is prohibited to commit hostile acts on historic monuments, work of art or places of worship (art. 53), dykes and nuclear power plants should not be attacked if doing so may result in severe losses among the civilian population (art. 56) and the natural environment should be protected against widespread, long-term and severe damage (art. 55). Cultural property finds protection in a convention concluded in 1954, another convention concluded in 1977 prohibits the military use of environmental modification techniques (any 61 lOMoAR cPSD|2805715 attack is entitled under the law of self-defence to cross the host State’s borders and deploy armed force on its territory for the purpose of taking effective military action in self-defence against the armed group that presents the threat”. International law governing the extraterritorial use of force: the issue of self-defence and Imminence. The Caroline formula: a threat is “instant, overwhelming, leaving no choice of means, and no moment for deliberation”. “while the United States appears to accept that resort to anticipatory self-defence is constrained by the principle of imminence, it interprets this standard as a flexible one that incorporates considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians and the likelihood of heading off future disastrous attacks”. International human rights “International human rights law prohibits arbitrary killing. This prohibition is reflected in specific treaty obligations and forms part of customary international law ... Outside situations of armed conflict, the use of deadly force by the State is lawful only if strictly necessary and proportionate, if aimed at preventing an immediate threat to life and if there is no other means of preventing the threat from materializing. It follows that lethal remotely piloted aircraft attacks will rarely be lawful outside a situation of armed conflict”. The implementation of international humanitarian law in a non-international armed conflict  Geographical scope  The intensity and protraction of the conflict  The degree of organization of the parties - Organized armed groups «According to ICRC, examples of direct participation include taking part in a direct act of violence; transmitting information for immediate use in an armed attack; transporting equipment in close proximity to an attack; and acting as a guard, intelligence agent or lookout. Conduct that does not cross the ICRC threshold for direct participation includes the commercial sale of equipment or supplies, publication of propaganda, recruitment, financing of terrorism, hiding weapons, helping fighters to escape capture and supplying fighters with food, lodging or logistical support.” (§ 70). The principles of distinction, proportionality and precaution and the accuracy of targeting intelligence. IHL and IOs The question is if IOs are bound to respect the rules of IHL. Say that IOs are bound by those conventions because most or all of their member states are bound means to reject the idea that IOs have their own legal personality but say that are free to act and might be seen as an invitation to the other party to the conflict to do the same, and thereby be counterproductive. The non-governmental Institute de Droit International adopted a resolution in 1975 urging the UN to deliver a statement that it considered itself bound by the Geneva conventions. In 1999 Secretary-General Kofi Annan issued a bulletin (bollettino) outlining observance by UN forces of IHL. 64 lOMoAR cPSD|2805715 However, even if IOs can be considered could by IHL, the structure of both those organizations and of the mission they engage in makes the attribution of responsibility difficult. If an individual peacekeeper violates a rule of IHL, the question is often whether it involves the state concerned, whether it involves NATO and whether it involves the UN. IHL and privatization Mercenaries are not protected under IHL. The UN has sponsored a convention against the recruitment, use, financing and trading of mercenaries in 2001, which criminalizes acts related to mercenarism. Under art. 47 Protocol I A mercenary is any person who: - is specially recruited locally or abroad in order to fight in an armed conflict; - does, in fact, take a direct part in the hostilities; - is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; - is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; - is not a member of the armed forces of a Party to the conflict; - has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces”. More common these days is the use of so-called private militaries companies. For holding a state responsible for the conducts of them there may be three elements: 1- The company exercises governmental authority; 2- The company operates under State control; 3- The State has a due diligence obligation that no international law violations occur within its jurisdiction. Foreign occupation Hostilities can stop temporarily in the case of foreign occupation, in such cases the law of occupation is triggered and continues to apply as long as the occupation continues or is recognized as constituting occupation and doesn’t become normalized. The law lacks clear criteria for distinguish between foreign occupation or annexation (became part of another territory), also because the time factor may come to play a role: what starts out as illegal occupation may come to be legalized by the passage of time in conjunction with acceptance, acquiescence and recognition. The occupying power cannot just do as it pleases, it has to respect certain international legal norms toward the civilian population, most notably those derived from IHL and HRL. The 1907 Hague Regulations is a mini-constitution for the occupation administration: Art. 43: the occupant shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Art. 50: addresses childcare and education Art. 53: prohibits the destruction of property Art. 55: supply of food and medication. 65 lOMoAR cPSD|2805715 These provisions are not absolute, Geneva Convention IV generally applies to armed conflict, and hence, the duties of the occupying power tend to be circumscribed by military necessity. Jus post bellum and post-conflict governance Jus post bellum is about the transition back to peace, is focused on the post-conflict peace: peace agreements should include all stakeholders in order to be legitimate, there should not be onerous reparations or harsh punishment on states for having committed aggressions, and so on.. The post-conflict governance is about the idea that after a conflict the area is best governed, at least for a while, under international auspices→ STATE-BUILDING. For example, after WWI various forms colonies were deemed not yet fit to stand on their own feet, and came to be administered as mandate territories, governed by a different state under the auspices of the League of Nations. IL may also have a role to play after dictatorship comes to an end, in situations that are sometimes referred to as “transitional justice”. Typically, the state will be in need of a new constitution, a new system of private law, in particular if the end of the dictatorship is accompanied by a shift in political ideology (as in eastern Europe in ‘90s). In such circumstances, IOs can offer advice. Wars against phenomena Wars without readily identifiable enemies, this applies to the proclaimed war on drugs, but mostly to the war on terror. The reason is that drugs and terrorism are unacceptable and should be fight. Regular police operations are deemed unsatisfactory, ineffective or unproductive, was has to be declared against these phenomena. In such cases regular criminal law and the legal guarantees that come with it under the rule of law (e.g. fair trial) do not apply. Since the particular enemy is not a particular entity but rather a phenomenon, the rules of IHL may not apply. This has been a potent justification for incarcerating individuals suspected of terrorism, in particular at Guantanamo, those incarcerated were characterized as “unlawful enemy combatants” and initially deprived of habeas corpus and not considered as prisoners of war. 66 lOMoAR cPSD|2805715 Transboundary police cooperation One reason why international crime control operates below the radar screen is that much of it is done by its immediate practitioners (police officers, prosecutors), rather than through high level political initiatives. An example is that Interpol started its existence, in the 20’s, as a gathering of police officers, and that its member states still predominantly send police officers as delegates to meetings of Interpol plenary body. Another reason why international crime control is so often overlooked is that it is highly dispersed or decentralised. There are different treaties in place dealing with different topics. The trade in drugs is treated as a matter of national security, justifying even a high profile and expensive war on drugs. The central legal instrument is the 1988 UN convention against illicit traffic in narcotic drugs and psychotropic substances, that obliges the parties to criminalize a vast range of activities related to drugs. The parties also agree to treat the offences listed in the convention as extraditable and must provide the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings for purposes which include tacking evidences, executing sources and seizures, examining cites and providing information. Assistance may be refuse on grounds of security or public order, but the refusal must be justified and does not apply to bank secrecy. The 2000 Un convention against transnational organized crime concluded in Palermo aims at combating the frameworks in which serious crime can take place, in particular by criminalizing money laundering and corruption. Extradition Extradition is the transfer of an individual from one state to a state that aims to place the accused on trial, is typically a formalized process involving either the diplomatic services of the states concerned or their judicial authority and is based on an agreement. Most extradition treaties are still bilateral in nature although the European convention on extradition 1957 has been of some importance. Extradition is strongly influenced by consideration of reciprocity. (You accede to my requests, and I will accede to yours). Many extradition treaties contain similar provisions, most are based on the principle of double criminality (individuals will only be extradited for offence that are prohibited in both states), principle of speciality, the provision that individuals should not be extradited for political activities or military offences. Many European states have abolished the death penalty, so they are not keen to extradite to states where the death penalty is a real possibility and reserve the right to refuse extradition unless ensured by requesting state that the death penalty will not be imposed. States are not considered to be under any obligation to extradite in the absence of an extradition treaty and may often exclude the extradition of their national. In some situations, in particular relating to terrorists acts, treaties have come to embody the principle aut dedere aut judicare : either extradite or prosecute. The purpose of such a clause is to make sure that terrorists cannot seek refuge in states which no extradition treaty exists. Abduction and deportation There are no real alternatives to extradition. Deportation is not a carefully regulated process and lacks the sort of due process guarantees that are legitimately associated with liberal criminal prosecution and extradition. 69 lOMoAR cPSD|2805715 THE SEAS, THE AIR AND OUTER SPACE Outline of the maritime regime The law of the sea is governed by customary law and the 1982 Convention on the Law of the Sea (Montego Bay Convention, UNCLOS). The Convention divides the seas into a number of maritime zones, states can exercise functional or exclusive jurisdiction over some of these zones. Inside a state’s territory, its internal waters (rivers, lakes and canals) are considered part of the national territory. Closest to the coastline, considered a part of a state’s territory too, there is the territorial sea. This may be accompanied by a contiguous zone, an exclusive fisheries zone or, most commonly, an exclusive economic zone (EEZ). Beyond the EEZ there are the high seas, deemed to be res communis – common property. The entry into force of UNCLOS marked the creation of a separate court: the International Tribunal for the Law of the Sea, located in Hamburg. Internal waters Include rivers, lakes, canals, bays and ports. Full and exclusive jurisdiction of the coastal State. Ships have no right of innocent passage or of entering into ports for other States in absence of a treaty provision to that effect, while it is generally conceded that there is a presumption that ports and waterways are open to foreign merchant ships, this presumption has not crystallized into a customary right. Exception: ships in distress, only when human life is at risk. For Internationalized waters: specific regimes established by relevant treaties (ex. Suez Canal, Panama Canal) providing the canal as free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag. Territorial sea and contiguous zone The territorial sea is up to 12 nautical miles from the baselines (low-water line along the coast as marked on large-scale charts officially recognized by the coastal state): art. 5. Derogation for States with a deeply indented and cut into coast: the method of straight baselines can be used (Art. 7.1). Full sovereignty of the coastal State with the only exception that states have to allow innocent passage (not prejudicial to the peace, good order or security of the coastal state) of foreign merchants’ ships and warships. Sometimes, due to geographical configurations, territorial waters also function as international straits (ex. Strait of Gibraltar or strait of Hormuz): right of transit passage for ships and aircraft with no special conditions of innocence. The contiguous zone is up to 24 nautical miles from the baseline. The coastal State may prevent and punish infringements of its customs, fiscal, immigration, or sanitary regulations committed within its territory or its territorial sea. This zone must be claimed by States. 70 lOMoAR cPSD|2805715 Exclusive economic zone (EEZ) It may extend up to 200 nautical miles from the baselines. The coastal State enjoys sovereign rights in natural resources present there, whether living or not: exploring, exploiting, conserving, and managing living and non-living natural resources; establishing artificial islands and installations; conducting marine scientific research; protecting the marine environment. There is no freedom of fisheries in the EEZ. Since the EEZ usurped part of the high seas, landlocked states (senza sbocco sul mare) felt that the creation of EEZ has worked to their disadvantage; consequently was reached a complicated compromise in the UNCLOS: landlocked states have the right to participate on a equitable basis, the same is for “geographically disadvantaged states” (the ones with small coast, bordering semi- enclosed, and so on…) EEZ must be claimed by states. Continental shelf Natural prolongation of a coastal State’s land territory into the sea, before it falls away into the ocean depths. Continental shelf may extend 200 miles off the coast and covers the seabed and subsoil. The continental shelf is generally accepted to belong to coastal states as prolongation of their territory whether they want it or not. The coastal State has limited rights to the exploration and exploitation of the natural resources of shelf (essentially oil and minerals of the seabed) but not on the suprajacent waters. High seas The high seas are a good available to all the States. Each State enjoys freedom of navigation and overflight, of laying submarine cables and pipelines, of fishing, of conducting scientific research and of constructing artificial islands and installations. Prohibited activities are the slave trade; the illicit transport of narcotics, unauthorized broadcasting and piracy (art.118 UNCLOS). States have a general obligation to cooperate in combacting these activities. On the high seas the flag state has, in principle, exclusive jurisdiction over things happening on board. This covers enforcement jurisdiction too, art. 97 UNCLOS provides that penal measures may be instituted by the flag state or by the state of nationality of the responsible individual. The right of «hot pursuit»: it must be uninterrupted (art. 111 UNCLOS). The deep seabed The international seabed and the concept of the common heritage of mankind. International seabed: soil and subsoil under the high seas; it is rich in mineral nodules: manganese, nickel, copper, and cobalt. 5 principles are incorporated in the concept of the «common heritage of mankind»: - Absence of a right of appropriation; - Duty to exploit the resources in the interest of mankind; - The obligation to explore and exploit for peaceful purposes only; - The duty to pay due regard to scientific research; - The duty to protect the environment. Creation of the International Seabed Authority. 71 lOMoAR cPSD|2805715 OSCE (Organization for Security and Cooperation in Europe) Is a sui generis organization because is not a fully-fledged international organization: lack of a uniform legal status; there are participating States vs. Member States and Draft Convention on the International Legal Personality, Legal Capacities, and Privileges and Immunity (2007) Goals Address a wide range of security- related concerns through a comprehensive approach: 1. Politico-military dimension 2. Economic and Environmental dimension 3. Human dimension History 3-7 July 1973: first stage of the CSCE, held at Ministerial level, Helsinki 1 August 1975: 35 CSCE Participating States signed the Helsinki Final Act 30 May – 23 June 1989: first meeting of the Conference on the Human Dimension 19-21 November 1990: 35 CSCE Participating States signed the Charter of Paris for a New Europe 15 June 1993: appointment of the first CSCE Secretary General 1995: CSCE became OSCE following the Budapest Ministerial Council 13 May 2004: appointment of a Special Representative on Trafficking in Human Beings 27-28 June 2009 – launch of the “Corfu Process” 1 August 2015 – 40th anniversary of the signing of the Helsinki Final Act + 2016 Chairmanship - Germany 2017 Austria Special mission to Ukraine 2018 Italy - Chairmanship Structure 57 Participating States. 11 Partner States – The Mediterranean and Asian Partners of Co-operation – Algeria, Tunisia, Morocco, Egypt, Jordan, Israel, Afghanistan, Australia, Japan, the Republic of Korea, Thailand. Partner Organization – the United Nations, the European Union, the Council of Europe, NATO. Decision-making bodies Summit: meetings of Heads of State or Government of OSCE Participating States. Ministerial Council: meetings of Foreign Ministers of OSCE Participating States. Permanent Council: regular body for political dialogue among representatives of all OSCE Participating States. Forum for Security and Co-operation: autonomous decision-making body on military stability and security. Chairmanship: held for one year by and OSCE Participating State and headed by the Foreign Minister of that State. Troika: current, preceding and future Chairmanships. OSCE Parliamentary Assembly: offering parliamentary input. Personal Representatives to the Chairperson-in-Office: tasked by the Chair to work on preventing and managing conflicts. Executive Structures Secretariat: provides operational and administrative support to field operations and other institutions. Secretary General: heads the OSCE Secretariat in Vienna, elected to a three-year term. 74 lOMoAR cPSD|2805715 Office for Democratic Institutions and Human Rights, ODIHR: promotes democratic election, respect for human rights and the rule of law. Representative on Freedom of the Media: provides early warning on violations of free expression. High Commissioner on National Minorities: provides early warning and take early actions to prevent ethnic tensions from developing into conflict. OSCE-related bodies Joint Consultative Group: deals with questions related to the compliance with the provisions of the Treaty on Conventional Armed Forces in Europe Open Skies Consultative Commission: consists of the representative of each of the 34 Participating States that have signed the Open Skies Treaty Court of Conciliation and Arbitration: a mechanism for the peaceful settlement of disputes OSCE in the field South-Eastern Europe: Albania, Bosnia and Herzegovina, Kosovo, Montenegro, Serbia, Former Yugoslav Republic of Macedonia Eastern Europe: Moldova, Ukraine, Russian Checkpoints Gukovo and Donetsk South Caucasus: Yerevan Central Asia: Ashgabat, Astana, Bishkek Activities Three dimensions: politico/military, economic and envirnmental and human. ODHIR OSCE Executive Body established in 1991 and based in Warsaw, Poland. Active throughout Europe, the Central Asia and North America, Caucasus. Employs nearly 150 staff from 30 countries . Funded through a core budget approved annually by participating States, as well as through voluntary contributions. Assists OSCE Participating States to ensure full respect for human rights and fundamental freedoms and abide by the rule of law, promotes principles of democracy, builds, strengthens and protects democratic institutions and enhances dialogue among States, governments and civil society. 75