INTL Y2.2 Case Law Week 7-13 PDF

**[Case law week 7-13]** **[Week 7: The Reception of International Law in Domestic Legal Orders]** Subjects/Questions for Class Discussion: \- Enforcement of International Law: General Introduction \- How is international law ordinarily applied? Which state organs are responsible for such applic...

**[Case law week 7-13]** **[Week 7: The Reception of International Law in Domestic Legal Orders]** Subjects/Questions for Class Discussion: \- Enforcement of International Law: General Introduction \- How is international law ordinarily applied? Which state organs are responsible for such application? \- What is monism/dualism and why is the distinction relevant? \- What is a self-executing obligation? \- How are the terms 'enforcement of international law' and 'international dispute settlement' related? \- What is a 'dispute' and how is the term different in legal contexts? Required Reading: \- E. Denza, 'The Relationship between International and National Law', in M. D. Evans, \*International Law\* (6th Ed., Oxford University Press, 2024) Chapter 14 or earlier editions (e.g., 5th Ed., 2018, Chapter 13). \- L. van den Herik, 'Diplomatic vs Judicial International Dispute Settlement' (8 min 33 sec, available online). [Powerpoints ] Learning Outcomes \- Discuss how international law is ordinarily applied. \- Examine the distinction between monism and dualism. \- Consider the difference between the terms: 'enforcement of international law' and 'international dispute settlement.' \- Consider the difference between diplomatic and judicial methods of dispute settlement. **[The Reception of International Law in Domestic Legal Orders]** Recap: In what ways is the international legal system different from domestic systems? \- Lack of Central Authority: The horizontal structure of the international community. \- States are sovereign, independent, and equal. \- Legal functions are decentralized. \- States have wide-ranging freedom of action based on the principle of consent. \- No Sovereign Legislative Body: \- States create the rules of the international legal system through treaties and the formation of customary law. \- No Global Government/Executive: \- There is no international police force or comprehensive system of law enforcement. The UN Security Council plays a limited role. \- No System of Courts with General Compulsory Jurisdiction: \- The International Court of Justice (ICJ) can only exercise its jurisdiction if states consent to disputes being submitted. **[Do States Obey International Law?]** \- Louis Henkin: \"Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.\" \- Humphrey Waldock: \"International law is normally observed.\" Regular Application of International Law \- \*\*Article 26 VCLT\*\*: Every treaty is binding upon the parties and must be performed in good faith. \- \*\*Article 27 VCLT\*\*: A party may not invoke its internal law as justification for failing to perform a treaty. **[Conditions of Application of International Law]** \- Conditions are determined by domestic legal orders: \- Bringing domestic rules into conformity. \- Adopting new legislation or administrative regulations. \- No automatic nullification of domestic law obligations. \- International law looks mainly to the result. **[Theoretical Approaches: Monism]** \- \*\*Unitary Legal System\*\*: Two versions: \- \*\*Supremacy of Municipal Law\*\*: International law serves as guidelines. \- \*\*Supremacy of International Law\*\*: International law prevails in case of conflict; no need for transformation into domestic law. **[Theoretical Approaches: Dualism]** \- International and domestic law are distinct systems. \- Different subjects: States vs. individuals. \- Different sources: Customary law, treaties vs. statutes. \- International law cannot directly address individuals without being transformed into national law. \- \*\*Modern Perspective\*\*: The dualistic view is no longer entirely valid; international norms can directly address individuals. **[Application of International Law: Self-Executing Norms]** \- Self-executing norms are provisions of treaties that can be directly applied by domestic legal systems, providing remedies in specific cases. **[Ensuring Compliance: Overview]** \- \*\*Enforcement\*\*: Mechanisms to guarantee the application of international law against state will. \- \*\*Dispute Settlement\*\*: Processes to resolve legal disputes between states or international organizations. **[Mechanisms for Enforcement of International Law]** \- Legal rules on state responsibility. \- Collective enforcement mechanisms. \- Self-help measures (e.g., countermeasures, use of force in self-defense). **[Types of Enforcement Mechanisms]** \- Decentralized and institutionalized. \- Non-coercive and coercive. \- Diplomatic and judicial/quasi-judicial. **[Meaning of a Dispute]** \- A disagreement over legal points or facts that must be settled through legal norms (PCIJ, ICJ cases). **[The UN Charter and Dispute Settlement]** \- \*\*Article 2(3)\*\*: All members shall settle disputes by peaceful means. \- \*\*Chapter VI\*\*: Details obligations for peaceful dispute resolution. \- \*\*Chapter VIII\*\*: Provides for regional arrangements in maintaining international peace and security. **[Peaceful Settlement of Disputes]** \- A fundamental principle of the international legal order. \- Disputes must be resolved peacefully, although no specific method is mandated. **[Diplomatic Methods of Dispute Settlement]** \- \*\*Negotiation\*\*: Direct discussions without third-party involvement. \- \*\*Good Offices and Mediation\*\*: Involvement of third parties to encourage agreement. \- \*\*Inquiry\*\*: Fact-finding processes to establish circumstances of a dispute. \- \*\*Conciliation\*\*: Impartial examination and suggestion of settlement terms by a commission. **[Legal Methods of Dispute Settlement]** \- \*\*Arbitration\*\*: Disputes resolved by ad hoc tribunals based on international law. \- \*\*International Court of Justice (ICJ)\*\*: Principal judicial organ of the UN for settling disputes and giving advisory opinions. \- \*\*Other Courts and Tribunals\*\*: Include UNCLOS mechanisms, WTO dispute settlement, and international investment tribunals. [Case law] [BridgeFund Commercial - IJssalon 15\" (youtube.com)](https://www.youtube.com/watch?v=LmbKb-hgqdg) **Week 8: International Responsibility and sanctions** Topics for Class Discussion 1\. Circumstances Precluding Wrongfulness in ARSIWA \- Definition: Explore the circumstances that negate wrongfulness in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). \- Conditions of Application: Discuss the specific conditions under which these circumstances apply. \- \*\*Legal Effects\*\*: Analyze the implications of these circumstances on state responsibility. 2\. Shared Responsibility \- Definition: Define shared responsibility in the context of international law. \- Examples: Provide examples of situations where shared responsibility applies. 3\. Responsibility of International Organizations \- Conditions: Under what circumstances may international organizations be held responsible for internationally wrongful acts? 4\. Sanctions vs. Countermeasures \- \*\*Definitions\*\*: Clarify what sanctions are and how they differ from countermeasures. \- \*\*Examples\*\*: Provide real-world examples to illustrate the differences. 5\. UN Security Council (UNSC) Practice \- Evolution: Discuss how the practice of the UNSC has evolved in the adoption of sanctions over time. 6\. Aggravated Responsibility \- Definition: Define aggravated responsibility and discuss its significance in international law. Required Reading \- \*\*E. Denza\*\*: \"The Relationship between International and National Law\" in M. D. Evans, \*International Law\* (6th ed., Oxford University Press, 2024), Chapter 14 or earlier editions (5th ed., 2018, Chapter 13). \- \*\*L. van den Herik\*\*: \"Diplomatic vs Judicial International Dispute Settlement\" (8 min 33 sec, available online). Mandatory Readings/Materials \- \*\*A. Henriksen\*\*: \*International Law\*, 4th edition (Oxford University Press, 2023) (sections 7.4, 7.5, 7.7, and 7.9 of Chapter 7; section 13.3 of Chapter 13). \- \*\*J. Crawford\*\*: "The International Law Commission's Articles on State Responsibility: Past and Future" (Audiovisual Library of International Law, available online) (min 12:45 to 22:14 and 30:05 to 32:15). \- \*\*ICJ Case\*\*: Gabcikovo--Nagymaros Project (Hungary/Slovakia) \[1997\] ICJ Rep 1997, 7 (paras. 78-87). Reference Material \- \*\*Articles on the Responsibility of States for Internationally Wrongful Acts, 2001\*\* (available online) (arts. 1-18; 20-27; 40-41; 46-48; 49-54). \- \*\*Articles on the Responsibility of International Organizations, 2011\*\* (available online) (specific references in PowerPoint slides). \- \*\*UN Charter (1945)\*\*: Chapter VII, arts. 39 and 40. [Powerpoints ] **[Primary Rule of International Responsibility]** An international obligation may be violated by a subject of international law (IL) bound by it. This violation triggers the concept of international responsibility. **[Key Concepts in International Responsibility]** 1\. \*\*Juridical Relations\*\* \- \*\*First Juridical Relation\*\*: A state is bound by an international obligation. \- \*\*Second Juridical Relation\*\*: A breach occurs when a state fails to fulfill its obligation, resulting in wrongful conduct. 2\. \*\*Elements of Wrongfulness\*\* \- \*\*Right/Obligation\*\*: States are subjects of international law, and these rights and obligations are grounded in customary law, general principles of law, and international treaties. \- \*\*Wrongfulness\*\*: The violation of an international obligation by a state is considered wrongful if it results in harm to the rights of other states or international entities. **[\*\*Main Features of International Responsibility\*\*]** International responsibility is a secondary legal concept, arising only when a primary obligation is violated. The following criteria must be met: \- \*\*Attribution of Conduct (Article 4)\*\*: The wrongful act must be attributable to a state. \- \*\*Breach of Obligation\*\*: The act or omission must constitute a breach, but it does not necessarily have to cause immediate damage. \- \*\*Non-Relevance of Domestic Law (Article 3, 32)\*\*: Domestic law does not affect the determination of international responsibility. \- \*\*Special Provisions for Jus Cogens and Erga Omnes Obligations (Articles 40, 41, 48)\*\*: Certain peremptory norms (jus cogens) and obligations owed to the international community as a whole (erga omnes) have special provisions under international law. ***\*\*Determining International Responsibility\*\**** ***\*\*Subjective Element: Attribution of Conduct\*\**** Attribution is central to determining whether a state is responsible for a breach. The following criteria guide attribution: 1\. \*\*Organs of the State (Article 4)\*\* \- This includes all branches of government---legislative, executive, and judicial---regardless of whether the conduct was within their authority or ultra vires (outside their power, Article 7). 2\. \*\*Persons or Entities Exercising Governmental Authority (Article 5, 9)\*\* \- Even if these actors are not formally state organs, they may still be attributed conduct if they are empowered by the state to act on its behalf. 3\. \*\*Organs Placed at the Disposal of Another State (Article 6)\*\* \- When a state places its organs at the disposal of another, actions by those organs may be attributed to the state that provided them. 4\. \*\*Insurrectional Movements (Article 10)\*\* \- Actions of insurgents may be attributed to the state if they reach power and assume governmental functions. 5\. \*\*Conduct Adopted or Controlled by the State (Articles 8, 11)\*\* \- A state may be responsible for actions it directs, approves, or adopts as its own, even if carried out by another entity. **[\*\*Objective Element: Breach of Obligation\*\*]** A state is considered to have breached its international obligation if it violates a specific duty under international law. The following are essential elements in establishing a breach: \- \*\*Timing\*\*: The state must be bound by the obligation at the time of the breach. \- \*\*No Minimum Level of Gravity Required\*\*: The breach does not require a minimum level of gravity, though the seriousness of the breach may affect the consequences. \- \*\*Types of Breaches\*\*: \- \*\*Actions\*\*: For example, the Nuclear Tests case (New Zealand v. France, 1974). \- \*\*Omissions\*\*: Failure to take required action, as in the Gabcikovo-Nagymaros Project (Hungary v. Slovakia, 1997). \- \*\*Failure to Prevent\*\*: For instance, the lack of due diligence in preventing genocide (Bosnia v. Serbia, 2007). \- \*\*Endorsement\*\*: A state may be responsible if it endorses or supports wrongful conduct (e.g., U.S. v. Iran, 1980). **[\*\*Circumstances Precluding Wrongfulness\*\*]** Certain circumstances can preclude the wrongful nature of an act, but they do not eliminate the obligation to repair any damage caused. These include: 1\. \*\*Consent (Article 20)\*\* \- A state\'s action may not be wrongful if it occurs with the consent of the affected party. 2\. \*\*Self-Defence (Article 21)\*\* \- A state may act in self-defence in response to an armed attack (under Article 51 of the UN Charter), but it must meet the criteria of necessity, immediacy, and proportionality. 3\. \*\*Countermeasures (Article 22, 49-54)\*\* \- A state may take countermeasures to induce another state to comply with its obligations, but they must be temporary and proportional to the injury suffered. 4\. \*\*Force Majeure (Article 23)\*\* \- This occurs when an unforeseeable and irresistible event beyond a state\'s control causes the breach. 5\. \*\*Distress (Article 24)\*\* \- If a state commits a wrongful act to save human lives in situations of distress, the act may not be considered wrongful, provided the danger to life was not caused by the state's own actions. 6\. \*\*Necessity (Article 25)\*\* \- A state may act out of necessity to safeguard an essential interest, but only if the conduct does not seriously affect the interests of other states involved. **[\*\*Consequences of International Responsibility\*\*]** Once a breach is established, the state responsible for the violation is expected to restore the legal order through specific remedies. The following consequences may arise: 1\. \*\*Cessation of the Wrongful Act (Article 30(a))\*\* \- The state must cease the wrongful conduct and assure non-repetition of the act. 2\. \*\*Guarantees of Non-Repetition (Article 30(b))\*\* \- The responsible state may be required to provide guarantees that it will not repeat the wrongful act in the future. 3\. \*\*Reparations (Article 31)\*\* \- The state must make reparations, which can take the following forms: \- \*\*Restitution (Article 35)\*\*: Restoring the situation that existed before the wrongful act. \- \*\*Compensation (Article 36)\*\*: Financial compensation for harm caused. \- \*\*Satisfaction (Article 37)\*\*: A formal acknowledgment of the wrongful act or other symbolic reparations. **[\*\*Enforcement and Compliance Mechanisms\*\*]** There are several ways in which states may enforce compliance with international obligations and address breaches: 1\. \*\*Decentralized Enforcement: Countermeasures (Articles 49-54)\*\* \- States, particularly injured states, may take countermeasures to pressure the responsible state into compliance. These measures must be proportional and temporary. 2\. \*\*Institutionalized Enforcement: Sanctions (Articles 55-56)\*\* \- The imposition of sanctions may be authorized by international organizations (e.g., the UN Security Council). These sanctions require a structured legal framework and typically apply to member states. **[\*\*Relevant UN Charter Provisions: Enforcement of International Responsibility\*\*]** \- \*\*Article 41\*\*: The UN Security Council may impose measures not involving the use of force to enforce its decisions, such as economic sanctions and diplomatic severance. \- \*\*Article 42\*\*: If non-forcible measures are inadequate, the Security Council may authorize the use of armed force to maintain or restore international peace and security. \*\*Examples of International Responsibility in Practice\*\* 1\. \*\*Bild GmbH & Co. KG v. Germany\*\* \- The European Court of Human Rights ruled that Germany violated the right to freedom of expression by ordering a major news website to remove footage of a police arrest. 2\. \*\*Powell & Rayner v. United Kingdom\*\* \- The European Court found that noise pollution from aircraft violated property rights and interfered with the peaceful enjoyment of property. 3\. \*\*Srebrenica and UN Protection\*\* \- In 1993, the international community declared Srebrenica a UN-protected zone after promises of protection were made by the UN, but the subsequent massacre raised questions about the effectiveness of such international guarantees. **[\*\*Conclusion\*\*]** International responsibility is a fundamental aspect of international law, ensuring that states are held accountable for breaches of their international obligations. The complex interplay of subjective and objective elements, along with the range of legal remedies and enforcement mechanisms, underpins the international legal order. Whether through countermeasures, reparations, or institutionalized sanctions, the goal remains to restore legal order and prevent future violations. [Case law ] **Gabčíkovo-Nagymaros Project (Hungary/Slovakia)** In the Gabčíkovo-Nagymaros case, Hungary and Slovakia submitted a Special Agreement to the ICJ regarding the Budapest Treaty on the barrage system. The 1997 judgment ruled that Hungary could not suspend the project, while Slovakia could proceed with a provisional solution but could not fully operationalize it. The Court ordered both parties to negotiate in good faith and determined that Hungary owed Slovakia compensation for damages from its abandonment of the project, while Slovakia owed Hungary for its actions. In 2017, both countries agreed to discontinue further proceedings but reserved the right to seek additional judgments later. **[Week 9]** **[Powerpoint ]** [\\] **\*\*1. International Courts and Tribunals: A Few General Points\*\*** \- \*\*Adjudication as an exception\*\*: International courts are not the default mechanism for resolving disputes. They are typically used as a last resort after other methods have failed. \- \*\*Third-party adjudication\*\*: Refers to 'loss of control' for the disputing parties, as an external body (the court) makes the final decision. \- \*\*Not exhaustive\*\*: Courts do not always address every aspect of a dispute, and they focus on legal solutions, not political ones. \- \*\*Options\*\*: Parties can explore different mechanisms for resolving disputes. \- \*\*Rigid and costly\*\*: Judicial processes are formalized and can be expensive. \- \*\*Limitations\*\*: International courts do not always work for every dispute type, especially those involving sensitive or non-legal issues. **\*\*2. General Features of International Courts\*\*** \- \*\*Peaceful settlement mechanism\*\*: International courts are part of the broader system for peaceful dispute resolution under \*\*Article VI\*\* of the UN Charter. \- \*\*Unique jurisdiction\*\*: The \*\*International Court of Justice (ICJ)\*\* is the only inter-state tribunal with a general jurisdiction. \- \*\*Geopolitical independence\*\*: The ICJ is the only UN body based outside the geographic spheres of influence of the member states. \- \*\*Influence on international law\*\*: The ICJ plays a central role in the development and clarification of public international law. **\*\*3. Structure and Organization of the ICJ\*\*** \- \*\*Judicial body\*\*: The ICJ consists of \*\*15 judges\*\*, elected by the \*\*General Assembly\*\* and the \*\*Security Council\*\*, for \*\*nine-year terms\*\*. \- \*\*Selection criteria\*\*: Judges are selected from a list maintained by the Permanent Court of Arbitration (PCA) and must represent a diverse range of civilizations and legal systems. \- \*\*Ad hoc judges\*\*: Up to \*\*2 ad hoc judges\*\* may be appointed for specific cases where necessary. \- \*\*Leadership\*\*: The President and Vice-President are elected for \*\*three-year terms\*\*. \- \*\*Administrative support\*\*: The \*\*Registry\*\* supports the Court\'s operations. **\*\*4. Governing Texts for ICJ Operations\*\*** \- \*\*Key documents\*\*: \- \*\*United Nations Charter\*\* \- \*\*Statute of the Court\*\* \- \*\*Rules of Court\*\* \- \*\*Resolution on judicial practice\*\* \- \*\*Practice Directions\*\* **\*\*5. ICJ Jurisdiction: General Issues\*\*** \- \*\*Article 38 ICJ Statute\*\* defines the sources of law the Court relies on: \- \*\*International conventions\*\* (treaties) \- \*\*International custom\*\* \- \*\*General principles of law\*\* (recognized by 'civilized nations') \- \*\*Judicial decisions\*\* and \*\*teaching of highly qualified publicists\*\* (subsidiary means) **\*\*6. Types of Jurisdiction\*\*** \- \*\*Jurisdiction Ratione Personae (Personal Jurisdiction)\*\*: \- Only \*\*States\*\* can be parties to ICJ cases, with limited exceptions. \- \*\*States Parties to the UN\*\* can bring cases before the Court, but individuals may also be involved in certain situations. \- \*\*International Organizations (IOs)\*\* may participate under certain conditions. \- \*\*Jurisdiction Ratione Consensus (Consent-based Jurisdiction)\*\*: \- The ICJ only has jurisdiction when \*\*States consent\*\* to it (Article 36.1 of the ICJ Statute). \- Consent can be through: \- Jurisdiction clauses in treaties \- \*\*Optional Clause Declarations\*\* (Article 36.2) \- Special agreements or \*\*forum prorogatum\*\* (Article 36.5) \- \*\*Treaties for peaceful settlement of disputes\*\*: \- Examples: \*\*General Act for the Pacific Settlement of International Disputes (1928)\*\*, \*\*Inter-American Treaty (1948)\*\*, \*\*European Convention (1957)\*\*. \- States may agree to refer certain disputes to the ICJ under these agreements. **\*\*7. Jurisdiction: Detailed Issues\*\*** \- \*\*Compromissory Clauses\*\*: \- Disputes over the \*\*interpretation\*\* or \*\*application\*\* of a treaty can be referred to the ICJ. For example, cases like \*\*Nicaragua vs. United States\*\* and \*\*Bosnian Genocide\*\*. \- \*\*Optional Clause Declarations\*\*: \- States may accept ICJ jurisdiction by making declarations under \*\*Article 36.2\*\*, agreeing to compulsory jurisdiction with other States that accept the same. \- There are often \*\*reservations\*\* and exceptions that can complicate matters, especially in multilateral disputes. \- \*\*Jurisdiction Ratione Materiae (Subject-matter Jurisdiction)\*\*: \- A \*\*dispute\*\* must exist: There must be a clear disagreement on a legal issue. \- A mere assertion of a claim or denial is insufficient; a legal dispute requires actual opposition from the other party. **\*\*8. The Monetary Gold Principle (Admissibility)\*\*** \- \*\*Monetary Gold Case\*\*: Albania\'s claim over gold seized by Germany during WWII affected not only Albania's interests but also the interests of other parties (France, UK, and USA). \- The \*\*Monetary Gold Principle\*\* asserts that the ICJ cannot hear a case if a third-party State\'s interests are integral to the dispute, and that party has not consented to the Court\'s jurisdiction. **\*\*9. Procedure in Contentious Cases (I): Application\*\*** \- \*\*Commencement\*\*: States initiate proceedings by submitting an \*\*application\*\* (written notification) to the ICJ, specifying: \- The \*\*legal grounds\*\* of jurisdiction. \- The \*\*nature\*\* of the dispute. \- The \*\*facts\*\* of the case. \- Communication to the \*\*UN Secretary-General\*\*. **\*\*10. Procedure in Contentious Cases (II): Written Proceedings\*\*** \- \*\*Hybrid system\*\*: A blend of \*\*continental\*\* and \*\*Anglo-American\*\* legal systems. \- \*\*Written pleadings\*\*: Both parties submit written arguments (one or two rounds). The Court may set deadlines. \- \*\*No late submissions\*\*: After the written proceedings are closed, no new documents can be submitted. **\*\*11. Procedure (III): Incidental Proceedings\*\*** \- \*\*Preliminary objections\*\*: Raised if a State challenges the Court\'s jurisdiction or the admissibility of the case. \- \*\*Provisional measures\*\*: Temporary measures to prevent harm before the final judgment. \- \*\*Intervention\*\*: Third parties can join if their legal interests are affected by the case. \- \*\*Counter-claims\*\*: The defendant may raise counterclaims if related to the original dispute. **\*\*12. Provisional Measures\*\*** \- \*\*Article 41 of the ICJ Statute\*\* allows the Court to issue provisional measures to preserve the rights of the parties before a final judgment. \- These measures are issued if there is a \*\*prima facie\*\* jurisdiction and a \*\*plausible case\*\* for the applicant. \- \*\*Urgency\*\*: Provisional measures are urgent and aimed at preventing \*\*irreparable harm\*\*. **\*\*13. Intervention (Third States)\*\*** \- \*\*Interest of a legal nature\*\*: A third party may intervene if their legal interests might be affected by the Court's decision. \- \*\*Binding judgment\*\*: A judgment can affect third parties even if they are not formally a party to the case. \-\-- \*\*14. Counterclaims\*\* \- The ICJ allows counterclaims only if they are \*\*jurisdictionally connected\*\* to the original dispute. \- \*\*Connection in fact\*\*: The facts must be related (same geographical area or time period). \- \*\*Connection in law\*\*: The claims must be based on the same legal principles or treaties. \*\*15. Judgment and Implementation\*\* \- \*\*Language of judgment\*\*: The judgment is delivered in the official languages (English or French). \- \*\*Compliance\*\*: Article 94 of the UN Charter mandates that States must comply with ICJ judgments. \- \*\*Res judicata\*\*: The ICJ judgment is binding only between the parties involved and for that specific case. \- \*\*Enforcement\*\*: Implementation often requires further actions, such as negotiations, reparations, or demarcation, and may depend on the willingness of the parties to comply. **[Case law]** ICJ, The International Court of Justice Handbook (Sections 21-27, 33-43, 49-70, and 77-78) The International Court of Justice (ICJ) Handbook provides a comprehensive overview of the court's structure, functions, and jurisdiction. Here is a summary of the key points covered in the specified sections: 21-27: Structure of the ICJ and Its Composition - Composition: The ICJ consists of 15 judges, elected for a nine-year term by the General Assembly and Security Council of the United Nations (UN). The judges must represent the world\'s major legal systems, ensuring a diverse and comprehensive approach to international legal matters. - Judicial Independence: The judges are independent and do not represent their countries. They serve in their personal capacity and are tasked with resolving legal disputes between states, advising on legal questions referred by authorized UN bodies, and interpreting international treaties and conventions. 33-43: Jurisdiction and Procedures - Contentious Jurisdiction: The ICJ\'s contentious jurisdiction enables it to settle legal disputes between states that voluntarily accept its jurisdiction. This is based on the principle of consent --- states must agree to the court\'s jurisdiction either through treaties, declarations, or special agreements. - Advisory Jurisdiction: The ICJ can also provide advisory opinions on legal questions referred to it by UN organs and specialized agencies. While these opinions are not binding, they carry significant weight in international law. - Competence and Jurisdictional Clauses: States can recognize the ICJ\'s jurisdiction either unconditionally or conditionally. Some states limit their acceptance of the court's jurisdiction to certain types of disputes or specific areas of law (e.g., territorial disputes, human rights, or environmental law). 49-70: Procedure and Operations - Filing a Case: When a state wishes to bring a case before the ICJ, it must submit a written application detailing the dispute, the legal grounds, and the jurisdictional basis. The court then notifies the opposing party, and both parties submit written pleadings, followed by oral arguments. - Role of the Registry: The ICJ Registry supports the judges and ensures the smooth operation of the court. It acts as the administrative arm of the court, responsible for maintaining the court\'s records, managing documents, and ensuring that procedural rules are followed. - Interim Measures: In certain cases, the ICJ can issue interim measures, directing parties to cease or refrain from certain actions during the pendency of the case to preserve the rights of the parties involved. These measures are binding on the parties. - Judgments: The ICJ's judgments are final and binding on the parties involved. However, enforcement of ICJ decisions relies on the UN Security Council, which can be slow to act or may not take action if one of the permanent members exercises its veto. 77-78: Enforcement and Compliance - Compliance with Judgments: The enforcement of ICJ decisions is largely dependent on the political will of the states involved. If a state fails to comply with a judgment, the other party may request the UN Security Council to enforce the ruling, although this process can be hindered by the political dynamics of the Security Council. - Sanctions for Non-Compliance: While the ICJ does not have its own enforcement mechanism, non-compliance may lead to diplomatic, economic, or political consequences, as the failure to comply with an ICJ ruling can damage a state\'s reputation and relationships within the international community. 2\. A. Henriksen, *International Law* (4th edition, Oxford University Press, 2023) (Section 12.4 of Chapter 12) In Section 12.4 of Chapter 12, Henriksen explores the relationship between international law and the International Court of Justice (ICJ), focusing on its role in the settlement of disputes and the interpretation of legal principles in the context of international relations. Key Themes in Section 12.4: - The ICJ as the Principal Judicial Organ of the UN: The ICJ is the main judicial body of the United Nations and plays a crucial role in the peaceful resolution of disputes between states. It functions under the authority of the UN Charter, specifically Chapter XIV, and is tasked with settling legal disputes and providing advisory opinions on legal questions. - Consent-Based Jurisdiction: As noted, the ICJ\'s jurisdiction is primarily based on the consent of states. This consent can be expressed through various means, including treaties, declarations of acceptance of the court\'s jurisdiction (e.g., Article 36(2) of the ICJ Statute), and special agreements between states. - Types of Jurisdiction: - Contentious Cases: The ICJ resolves disputes between states regarding issues like boundary disputes, the use of force, human rights, and environmental protection. - Advisory Opinions: The court may offer advisory opinions on legal questions referred to it by UN bodies or specialized agencies. These opinions are influential in the development of international law but are not binding. - Importance of State Sovereignty: A key issue in international law is the tension between state sovereignty and the enforcement of international legal norms. While the ICJ has the authority to make binding decisions in contentious cases, it is up to the state parties to comply with these rulings, and non-compliance can often lead to diplomatic or political challenges. - International Legal Principles: The section also touches on the ICJ's role in interpreting and applying fundamental international legal principles, such as the prohibition on the use of force, respect for human rights, and the principles of justice and equity in resolving disputes. 3\. UN Charter (1945) Chapter XIV; ICJ Statute (Articles 2-4; 9; 34-38; 41, 43; 59-60; 65) UN Charter, Chapter XIV (The International Court of Justice): - Article 92: The ICJ is the principal judicial organ of the UN. - Article 93: All UN members are automatically parties to the ICJ Statute, though they may opt out of certain provisions. - Article 94: Requires states to comply with ICJ decisions, and the UN Security Council is tasked with enforcing compliance. ICJ Statute: - Article 2-4: The court is composed of 15 judges, elected by the General Assembly and Security Council, with equal representation from the world's major legal systems. Judges must serve impartially and independently. - Article 9: Sets out that judges shall be elected for a nine-year term and are eligible for re-election. - Article 34-38: These articles define the court's jurisdiction, which depends on the consent of states. They establish procedures for states to bring cases before the court and how they can accept or deny jurisdiction. - Article 41: The ICJ can prescribe provisional measures to preserve the rights of the parties pending final judgment. - Article 43: Provides that states must carry out the court's decisions in cases where they have been found to be in violation of international law. - Article 59-60: Article 59 states that decisions are binding only on the parties involved in the case, and Article 60 addresses the possibility of a judgment being revised. - Article 65: Allows the ICJ to provide advisory opinions on legal questions referred to it by authorized UN bodies or specialized agencies. Summary: The ICJ Handbook provides an extensive look at the structure, jurisdiction, and operations of the International Court of Justice. It emphasizes the role of the ICJ in resolving disputes between states and its advisory jurisdiction in providing opinions to UN bodies. The court\'s jurisdiction is based on consent, and while its decisions are binding, enforcement depends largely on the political dynamics within the UN Security Council. Henriksen\'s *International Law* highlights the significance of the ICJ in international law, particularly its relationship with state sovereignty and the role it plays in interpreting core principles like the use of force and human rights protection. It also notes the tension between the court\'s judicial authority and the voluntary compliance of states. Finally, the UN Charter and ICJ Statute establish the framework within which the ICJ operates, focusing on the court's jurisdiction, the importance of judicial independence, and the requirement that states comply with the court's rulings, backed by the authority of the UN Security Council for enforcement. **[Week 10]** **[Powerpoint ]** \#\#\# The Role of the State Throughout History The role of the state has evolved significantly over time, influenced by economic, social, and political developments. \- \*\*19th Century\*\*: During this period, the primary focus of states was on maintaining law and order within the country and protecting national territory from external threats and invasions. The state's responsibilities were largely centered on defense and governance. \- \*\*Post-Industrial Revolution\*\*: As industrialization took hold, the role of the state expanded. Governments began to take on additional tasks, such as providing public services to citizens and addressing economic inequalities through wealth distribution. The state\'s role shifted toward ensuring not only order and defense but also economic stability and social welfare. \- \*\*Contemporary Role\*\*: In modern times, the state has continued to provide essential public goods and services. These services now encompass a wide range of functions, including welfare programs, healthcare, education, infrastructure, and more. The state is seen as a central player in managing the well-being of its citizens and ensuring the provision of public services. \#\#\# Topics of Administrative Law Administrative law is a branch of law that governs the actions of administrative agencies and their relationship with the public. The key topics in administrative law include: 1\. \*\*Administrative Authorities and Their Servants\*\*: These are the entities and individuals responsible for carrying out the functions of the state. 2\. \*\*Powers of Administrative Authorities\*\*: The scope and limitations of the powers exercised by these authorities, which may include regulatory, enforcement, and decision-making powers. 3\. \*\*Procedural Rules\*\*: Administrative authorities are subject to rules that ensure their actions are lawful, fair, and transparent. 4\. \*\*Substantive Requirements\*\*: Public authorities must adhere to specific legal standards in their decision-making processes to ensure consistency, fairness, and legality. 5\. \*\*Judicial Protection\*\*: Administrative law provides mechanisms for individuals to challenge administrative actions in court, ensuring accountability and compliance with legal standards. \#\#\# Instruments and Powers at the Disposal of Public Administration Public administration plays a vital role in serving the public interest. Key aspects of the tools and powers available to public administration include: \- \*\*Legislative Empowerment\*\*: The legislature grants administrative bodies the authority to make decisions and implement policies. \- \*\*Effective Policy Implementation\*\*: Administrative bodies carry out policies through various means, including: \- \*\*Juridical Acts\*\*: Legal actions, which can be either general (affecting large groups) or specific (addressing individual cases). \- \*\*Factual Acts\*\*: Practical, often administrative actions aimed at achieving specific policy objectives, such as issuing permits or enforcing regulations. \- \*\*Competences\*\*: The administrative body's scope of authority to act on behalf of the state. \- \*\*Public and Private Law\*\*: Administrative bodies operate within both public law (which governs the relationships between the state and individuals) and private law (which governs relationships between private entities). \#\#\# Public Law vs Private Law In liberal political orders, the state holds a dual role, balancing its responsibilities as both a facilitator of freedom and a potential limiter of individual liberty. \- \*\*Public Law\*\*: Public law concerns the state's exercise of power and governs its relationships with citizens. It includes constitutional law, which defines the structure and fundamental principles of the state, and administrative law, which regulates how the state exercises its powers in practice. \- \*\*Private Law\*\*: Private law governs the relationships between individuals and private entities, covering areas such as contracts, property, torts, and family matters. \#\#\# The Co-Originality Thesis by Jürgen Habermas In his work, philosopher Jürgen Habermas argues that freedom and authority are co-original in modern liberal democracies. This concept reflects the notion that political freedom requires the existence of a framework of authority that is legitimate and subject to checks and balances. This co-originality is central to understanding the relationship between individual liberties and state power in constitutional frameworks. \#\#\# Public Law: Constitutional and Administrative Law \- \*\*Constitutional Law\*\*: This branch of law defines the basic structure of the state, the rights of individuals, and the core values that underpin the legal system. Over time, constitutional law has expanded beyond its traditional focus on state organization to encompass broader issues of civil rights and governance. \- \*\*Administrative Law\*\*: Administrative law serves to implement constitutional principles through the regulation and enforcement of laws and policies. It continuously adapts to meet the needs of society, evolving to reflect changes in governance and administration. \#\#\# Administration Within the Trias Politica The theory of \*\*Trias Politica\*\*, or the separation of powers, is central to modern democratic systems. This concept, proposed by Montesquieu, argues that to prevent abuse of power, governmental powers should be divided into three branches: the legislature, the executive, and the judiciary. These branches serve as checks on one another, ensuring that no single branch becomes too powerful. \- \*\*Example in Practice\*\*: The construction of a new power plant in an industrial area may require compliance with environmental laws and regulations. The legislature sets the laws, the administration enforces the laws and issues permits, and the judiciary ensures that the executive remains within legal boundaries. \#\#\# Public Administration Public administration involves the management of government functions and the implementation of policies. Key aspects of public administration include: \- \*\*Civil Servant Employment\*\*: Civil servants are employed under legal guarantees that protect their tenure, with exceptions made for cases of serious misconduct. \- \*\*Merit-Based Recruitment and Promotion\*\*: Public sector employment is based on merit, with promotions awarded through a combination of seniority and performance. \- \*\*Standardized Pay and Benefits\*\*: Public sector pay is typically more standardized than in private enterprise, and employment conditions are designed to ensure fairness and equity. \- \*\*Public Management Reforms\*\*: In recent years, public administration has become more flexible, focusing on performance-based indicators and adapting to new challenges, including privatization in certain sectors. \#\#\# Administrative Law Beyond the State Border Historically, administrative law was viewed as a system specific to individual states, with little cross-border influence or comparison. However, today there is growing recognition of \*\*Comparative Administrative Law\*\* due to globalization and the interconnectedness of modern societies. \- \*\*Reasons for Change\*\*: Factors such as globalization, the rise of international communication (e.g., the internet), and cross-border issues in areas like health, safety, and environmental protection have led to the need for comparative approaches in administrative law. \#\#\# European Administrative Law European administrative law operates within a framework of \*\*multilevel governance\*\*, where decision-making occurs at both national and European levels. \- \*\*Direct Administration\*\*: Some EU laws are adopted and executed directly at the EU level. \- \*\*Indirect Administration\*\*: Other EU laws are implemented through national administrations, with both European and national authorities playing a role in areas such as food safety, traffic regulation, and nature conservation. \#\#\# Global Administrative Law With globalization, the need for global administrative law (GAL) has become evident. GAL refers to the regulatory frameworks that manage cross-border governance and administrative actions on a global scale. \- \*\*Purpose\*\*: GAL addresses the challenges posed by global interdependence, regulating areas like environmental protection, trade, law enforcement, and intellectual property. \- \*\*Accountability Deficit\*\*: One of the main issues in global administrative law is the \*\*accountability deficit\*\*, where decisions made at the global level may lack democratic oversight or transparency. This has led to calls for new mechanisms of accountability to ensure that global administrative bodies operate in a fair and transparent manner. In sum, administrative law, both within states and at the global level, plays a crucial role in managing the functions of government, ensuring accountability, and adapting to the challenges of a rapidly changing world. **[Case law ]** 1\. B. Kingsbury, N. Krisch, and R. B. Stewart, \"The Emergence of Global Administrative Law\" (2005) In this influential article, Kingsbury, Krisch, and Stewart discuss the growing importance of Global Administrative Law (GAL) in the context of globalization. They explore how the rise of transnational governance and the proliferation of international regulatory bodies have created a need for new frameworks of accountability and transparency at the global level. Key points include: - Globalization and Governance: As international institutions and bodies (e.g., the World Trade Organization, UN, EU) assume increasing regulatory powers, there is a need for rules that ensure these global actors are held accountable for their actions. This includes establishing standards for transparency, participation, and legal accountability in decision-making processes. - Administrative Structures Beyond the Nation-State: Global administrative bodies are emerging to deal with global issues such as environmental protection, trade, human rights, and intellectual property. These bodies often operate outside of traditional national legal systems, raising questions about how to enforce the rule of law and democratic principles at the global level. - Emergence of Global Administrative Law: GAL is defined as the legal mechanisms, principles, and practices that seek to provide accountability for the actions of global administrative bodies. It involves the application of standards such as reasoned decision-making, transparency, participation, and access to judicial review, which are typically found in national administrative law but are adapted for the global stage. - Accountability and Legitimacy: One of the central issues discussed is the accountability deficit in global governance. Global administrative bodies often operate without the same levels of democratic oversight that exist in national legal systems, leading to concerns about legitimacy and the potential for abuse of power. The authors argue that as globalization continues, the development of GAL will be essential in ensuring that transnational administrative actions are both effective and accountable. 2\. C.W. Backes and M. Eliantonio, "Administrative Law" in *Introduction to Law* (2nd ed., 2017) In their contribution to *Introduction to Law*, Backes and Eliantonio provide a detailed overview of administrative law as a key area of public law. They focus on how administrative law governs the relationship between the state (through its administrative authorities) and individuals or entities under its jurisdiction. The authors explore the role of administrative law in regulating the exercise of public power, ensuring accountability, and safeguarding individual rights. Key points include: - Defining Administrative Law: Administrative law is concerned with the rules, procedures, and structures that guide the actions of administrative bodies. It serves as a check on executive power and regulates the relationship between the state and its citizens, ensuring that decisions made by public authorities are legal, fair, and consistent. - Sources of Administrative Law: The main sources of administrative law include statutes, regulations, and case law. These create the framework within which administrative bodies operate, outlining their powers, duties, and procedures. - Administrative Powers and Controls: Administrative law addresses the extent and limits of administrative powers. It also ensures there are mechanisms for individuals to challenge the actions of public authorities, often through judicial review, to ensure that public bodies do not exceed their powers or act arbitrarily. - Public Participation and Accountability: A significant aspect of administrative law is the promotion of public participation in decision-making. This includes the right of individuals to be informed and to participate in administrative processes, as well as the ability to challenge administrative decisions through appeals or judicial review. Transparency and accountability mechanisms are crucial for ensuring that administrative authorities act within the law and respect citizens\' rights. - The Evolution of Administrative Law: The field of administrative law has evolved to address modern challenges, including the increasing complexity of governance and the growing role of international and supranational organizations. Administrative law now often extends beyond national borders to regulate cross-border activities and global governance issues. - Reforms in Public Administration: The authors also highlight contemporary trends in public administration, such as the movement towards New Public Management (NPM), which emphasizes efficiency, flexibility, and performance-based accountability in the public sector. Summary Comparison - Global Administrative Law (GAL): Kingsbury, Krisch, and Stewart focus on how administrative law is evolving on a global scale to regulate transnational governance. They emphasize the need for accountability in international bodies, particularly in the context of globalization. GAL focuses on ensuring transparency, participation, and judicial review in global administrative processes, which is becoming more significant as global governance expands. - National Administrative Law: Backes and Eliantonio provide an overview of traditional administrative law at the national level. They discuss how administrative law ensures the rule of law in the public sector, governs the relationship between the state and citizens, and guarantees accountability through mechanisms like judicial review. The article also touches on reforms in public administration and the increasing importance of transparency and efficienc **[Week 11]** General Principles of Administrative Law The role of the administration in modern legal systems has evolved significantly over time, leading to an expansion in its tasks and competences. Today, the administration has been granted more powers to regulate various sectors, but with these powers comes increased freedom in their exercise. Despite this greater autonomy, the use of public power varies significantly between different areas of law, each presenting distinct challenges and requirements. - Tax Law: Characterized by limited discretionary power. The administration\'s actions are more strictly controlled by law, with little room for subjective judgment or flexibility. - Land-use Plans: In contrast, land-use planning provides more discretionary power, allowing the administration to make decisions based on a range of factors, including public interest and long-term planning goals. Key Aspects of Administrative Decision-Making When the administration makes decisions, it is bound by several important principles: 1. Legal Boundaries: The administration must act within the conditions and limits explicitly outlined in the applicable legal rules. This ensures that public power is not exercised arbitrarily. 2. Respect for Fundamental Rights: The administration must respect the fundamental rights of those affected by its decisions, ensuring that these rights are not unjustly infringed upon. 3. General Principles of Administrative Law: In addition to the specific legal rules, the administration must also consider general principles of administrative law, which serve as overarching guidelines for ensuring fairness, transparency, and accountability in the decision-making process. The Origin of General Principles of Administrative Law The general principles of administrative law have their origins in case law. Over time, there has been a movement towards their codification, with European legal systems recognizing broadly similar principles. These principles aim to limit the discretion of administrative bodies, ensuring that power is not abused and that public decisions are made fairly and responsibly. Notably, these principles arose out of a need to prevent the misuse of discretionary power by administrative authorities. As Backes and Eliantonio (2017) explain, the general principles of administrative law are designed to control administrative actions, set boundaries on these actions, and provide safeguards against the misuse of public powers. They play a crucial role in protecting the rights of individuals and preventing excessive emphasis on general interest at the expense of private rights. Discretionary Power in Administrative Law Discretionary power refers to the freedom of choice granted to a decision-maker within the framework of legal guidelines. While discretion allows for flexibility in decision-making, it must be exercised responsibly and not arbitrarily. As Endicott (2018) points out: - The decision-maker must act in the public interest, while also respecting the private interests of individuals affected by the decision. - Discretionary power does not mean unchecked authority but rather means that the decision-maker is entrusted with making choices that align with both public needs and individual rights. Advantages and Disadvantages of Discretionary Power The use of discretion offers several benefits, but it also presents challenges: - Advantages: Discretion allows for flexibility, enabling government policies to be implemented effectively and adapting decisions to the needs of individual cases. - Disadvantages: However, discretionary power can be misused, potentially putting citizens at the mercy of administrative decisions. It also opens the door to inconsistent decision-making, as individual administrators may interpret the scope of discretion differently. The principles of administrative law, such as procedural fairness, are crucial in mitigating these risks. They ensure that administrative power is exercised justly and within clear boundaries, protecting individual rights and maintaining public trust. Protecting Rights Through Administrative Law The application of general principles of administrative law is essential for protecting individuals against the potential abuse of public power. These principles strike a balance between promoting the public good and safeguarding private interests, ensuring that the administration does not overstep its boundaries or disregard fundamental rights. Procedural and Substantive Principles of Administrative Law Administrative law encompasses both procedural and substantive principles: 1. Procedural Principles: These principles govern the decision-making process itself, ensuring that individuals\' interests are considered and that the process is transparent and fair. Procedural principles focus on how decisions are made, including the involvement of affected parties and adherence to legal procedures. 2. Substantive Principles: These principles relate to the content of the decisions or measures taken by the administration. They ensure that administrative decisions are not only procedurally fair but also substantively sound and aligned with the law. Procedural Principles at the EU Level The European Union recognizes several procedural principles that govern administrative actions. One of the most significant is the principle of \"Good Administration,\" which has evolved through case law and is now embedded in EU law: - Early Case Law: The Court of Justice of the European Union (CJEU) has referred to concepts like 'good,' 'sound,' and 'proper' administration in its rulings (e.g., Case 32/62, Joined Cases 1-57 and 14-57, Case C-255/90 P). - General Principle of EU Law: Article 6(3) of the Treaty on European Union (TEU) acknowledges the principle of good administration as a foundational element of EU law, guiding institutions and member states in their exercise of public power. Good Administration in EU Law The EU's commitment to good administration is further clarified in Article 41 of the Charter of Fundamental Rights (CFR), which guarantees every person the right to have their affairs handled impartially, fairly, and within a reasonable time. This right includes: 1. Right to be Heard: Individuals must be given an opportunity to present their case before any decision affecting them adversely is made. 2. Right of Access to One's File: Individuals have the right to access the documents relevant to their case, subject to considerations of confidentiality and business secrecy. 3. Duty to Provide Reasons: Administrations are obligated to explain the reasons behind their decisions, ensuring transparency and accountability. The Duty of Care is a core feature of good administration, as outlined in Article 41(1) CFR. The administration must carefully review the relevant facts and legal elements of a case before making decisions. This duty prevents arbitrary actions, ensures fair treatment, and helps avoid conflicts of interest. Hearing and Access to One's File The principle of fair hearing, or \"audi alteram partem,\" is crucial in administrative law. It guarantees that individuals have the right to participate in proceedings that may affect their interests. This right includes access to their case file, enabling them to understand the decision-making process and challenge the decision if necessary. In conclusion, the general principles of administrative law, both procedural and substantive, are essential tools for ensuring fairness, transparency, and accountability in administrative decision-making. They provide mechanisms to prevent the misuse of power and protect the rights of individuals in the face of complex governmental processes. Reasoning of Decisions (Art. 41(2)c) CFR) One of the fundamental principles of administrative law is the requirement for the administration to provide clear and thorough reasoning for any decisions made. This duty to give reasons ensures that individuals affected by administrative decisions understand the rationale behind those decisions and are able to defend their rights. The key components of this principle include: - Obligation to Provide Grounds: The administration must clearly state the reasons behind the actions or decisions taken. - Clear Reasoning: The reasoning must be presented in a transparent manner, ensuring that the affected parties can comprehend the justification for the decision. - Right to Defend Rights: Providing clear reasons allows individuals to assess whether their rights have been properly considered and take appropriate steps to defend them if necessary. Why Do We Need This Procedural Step? The obligation to give reasons for decisions is a crucial procedural step, both from a legal and practical perspective. Sir Harry Woolf (1990) highlighted its importance, noting, *"I regard the giving of satisfactory reasons for a decision as being the hallmark of good administration."* This step ensures that decisions are not made arbitrarily and that the administration is held accountable. - Informed Decisions: For the parties affected, understanding the reasoning behind a decision clarifies why they have either won or lost a case. This transparency fosters trust in the administration. - Mind Concentration for Decision-Makers: For decision-makers, the requirement to justify their decisions forces them to concentrate on the evidence and ensure that their decisions are soundly based. It reduces the risk of arbitrary or poorly considered decisions. - Fairness: Fairness requires that those affected by a decision should not be left in doubt as to the reasoning behind it. Knowing the reasons for a decision allows affected parties to assess whether their rights have been infringed and whether the decision was made according to law. What Are the Reasons to Give Reasons? The duty to provide reasons for administrative decisions serves several important functions: - From the Affected Parties' Perspective: Giving reasons ensures that individuals know why the decision was made and what factors influenced it. This transparency enables affected parties to assess whether the decision was justified or whether they should challenge it. - From the Decision-Maker's Perspective: Requiring decision-makers to provide reasons for their actions encourages careful thought and consideration. It ensures that decisions are not made impulsively or arbitrarily and forces decision-makers to justify their actions, which enhances the accountability of the administration. Article 296 TFEU and Case Law Article 296 of the Treaty on the Functioning of the European Union (TFEU) establishes the legal obligation for EU institutions to provide reasons for their decisions. It states:\ *\"Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests, or opinions required by the Treaties.\"* This requirement ensures transparency and accountability in EU decision-making. In Case C-269/90 TU München v Hauptzollamt München Mitte (1991), the Court emphasized that the statement of reasons must be clear and unequivocal. It must outline the reasoning behind a decision in a way that makes it understandable to the parties involved and enables them to defend their rights and access judicial review. This case highlights the importance of transparency and clarity in administrative reasoning, ensuring that individuals are fully informed of the rationale behind administrative measures. Transparency of Information The principle of transparency is closely linked to the duty to give reasons. Sunshine laws and freedom of information acts exist in many jurisdictions, ensuring that government-held information is accessible to the public. These laws are critical to ensuring a fair and accountable administration, as well as fostering an informed, participatory democracy. Transparency in administrative decision-making helps prevent the abuse of power by providing the public with insight into the decision-making process. - Exceptions to Transparency: These laws also govern the exceptions to the general rule of transparency, balancing the need for public access to information with concerns such as national security, commercial confidentiality, or the protection of individual privacy. Right of Access to Documents -- EU Level At the EU level, the right to access documents is enshrined in Articles 42 of the Charter of Fundamental Rights (CFR) and 15(3) of the Treaty on the Functioning of the European Union (TFEU). Regulation 1049/2001, based on Article 15 TFEU, provides the general framework for public access to EU documents. This regulation outlines the rules for accessing documents held by EU institutions. 1. Scope of Regulation 1049/2001 (Art. 2): The regulation applies to all documents held by EU institutions, including those that have been drawn up or received by them in the course of their activities. 2. EU Institutions Covered (Art. 1(a)): The regulation applies to all EU institutions, such as the European Parliament, European Commission, and the Council of Ministers. These bodies are required to provide access to documents that fall within their responsibilities. 3. Definition of a \"Document\" (Art. 3(a)): A document is defined as any content, regardless of the medium (written, electronic, or audiovisual), that concerns matters within the institution's area of responsibility. This broad definition ensures that citizens have access to a wide range of relevant information. 4. Beneficiaries of Access (Art. 2(1)): The right of access applies to any EU citizen and to any natural or legal person residing or having its registered office in a Member State. This ensures that individuals and organizations in the EU have the right to access public documents, promoting transparency and accountability in EU governance. Exceptions to the Right of Access While there is a general right to access documents, there are exceptions, both absolute and relative, to protect sensitive information: 1. Absolute Exceptions (Art. 4(1)): EU institutions must refuse access to documents if disclosure would harm important public interests. These include: - Public security - Defence and military matters - International relations - Economic and financial policy - Protection of privacy and integrity of individuals 2. Relative Exceptions (Art. 4(2)): Access may also be refused if it could undermine the protection of: - Commercial interests, including intellectual property - Court proceedings and legal advice - The purpose of inspections, investigations, or audits However, if there is an overriding public interest in disclosure, these exceptions can be overridden. In summary, the duty to provide clear reasoning for decisions, the principle of transparency, and the right of access to documents are critical components of administrative law. These principles ensure that public administration operates in a fair, accountable, and transparent manner, fostering trust and safeguarding the rights of individuals within the system. They also support the principles of democracy by allowing citizens to participate fully in governance processes and hold authorities accountable for their decisions. **[Week 12]** Procedural and Substantive Principles Last week, the focus was on Procedural Principles, including Good Administration, the Duty to Give Reasons, and Transparency. These principles ensure that decisions are made in a fair, transparent, and reasoned manner. This week, we shift to Substantive Principles, which address the content of decisions, not the process by which they are made. While procedural correctness is vital, it is equally important that the content of administrative decisions aligns with the limits of government powers. Substantive Principles: Motivation The substantive aspects of administrative law ensure that government decisions are not only procedurally correct but also substantively justifiable. These principles are focused on maintaining fairness, legality, and reasonableness in the content of administrative decisions. It is crucial that decision-makers understand the limits of their powers and ensure their decisions do not exceed the boundaries set by law. - Challenging Unreasonable Decisions: Public administration must be subject to challenge if it makes decisions that are incorrect, unjust, or unreasonable. This safeguard ensures that governmental powers are used within legal limits. - Limits of Governmental Powers: As F. Bignami points out, public administration must operate within the bounds set by laws, often passed by parliaments or through executive decrees. The role of the courts is to enforce these limits, preventing arbitrary or tyrannical actions by the government. Rule of Law The Rule of Law is a foundational principle in administrative law. It ensures that all government actions, including administrative decisions, must be grounded in law. The concept of the Rule of Law implies that the government cannot exercise powers beyond those granted to it by law. It also entails that administrative actions should respect basic rights and adhere to established legal frameworks. - Public Goals and Competences: According to Backes & Eliantonio, the Rule of Law allows administrative authorities to pursue public goals, but they must do so within the competences provided by the legislator. These competences are not unlimited; they must be used within the boundaries of the law, ensuring that government actions do not overstep. - Sovereignty of the People: Sovereignty resides with the people, and governments can only exercise the powers that have been conferred upon them by law. This principle ensures that governmental actions are always subject to legal scrutiny and that there are limits to how much power the government can exercise. Legal Limits on Government Actions The Rule of Law requires that there be legal limits on the actions of the government. These limits apply at all levels of government and are essential for preventing the abuse of power. Governments can only act where they have legal authority, and this applies not only to major decisions but also to the most basic administrative actions. Legality Principle At the heart of the Rule of Law is the Legality Principle, which dictates that the government's competence to act must always be grounded in legislation. The legislature provides the instruments that the administration uses to carry out its tasks. This principle ensures that administrative actions are not arbitrary, but rather, are based on clear and established legal foundations. - Legislation Sets Limits: The Law also defines the limits of governmental powers, ensuring that the administration can only act within the scope defined by the legislature. This principle is crucial for maintaining the balance of power and ensuring that the government acts within its lawful bounds. Rule of Law in the EU The Rule of Law is central to EU law as well. It ensures that administration is held accountable before the courts, both procedurally and substantively. This principle is enshrined in the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union (TEU). - Article 263(2) TFEU: This article grants jurisdiction to the Court of Justice of the European Union (CJEU) in cases brought by Member States, the European Parliament, the Council, or the European Commission, where there has been an infringement of competence, procedural requirements, the Treaties, or misuse of power. - Article 19(2) TEU: This article outlines the role of the Court of Justice of the European Union (CJEU), which is responsible for ensuring that the law is interpreted and applied correctly across the EU. It plays a vital role in upholding the Rule of Law by checking whether administrative decisions comply with the legal framework of the EU. Principle of Legal Certainty The Principle of Legal Certainty is fundamental in EU law and requires that legal rules should be clear and precise. This principle ensures that individuals and businesses can easily understand their rights and obligations, making it easier for them to take appropriate action based on the law. - Clear and Precise Rules: According to Case C-308/06 The Queen v. Secretary of State for Transport, the principle of legal certainty requires rules to be clear and precise, so individuals can ascertain their rights without confusion. - Legal Certainty and Rights: The principle also ensures that individuals know exactly what their legal standing is, enabling them to take steps to protect their rights accordingly. Case Law and Application The principle of legal certainty has been reinforced in various rulings by the EU courts. For example, in Case C-55/91 Italien v. Commission, the Court emphasized the need for legal certainty, stating that EU rules should be clear and understandable to ensure individuals can determine their rights and obligations. In Joined Cases T-55/93 and T-232/94, T-233/94, and T-234/94 Industrias Pesqueras Campos v. Commission, the EU courts reiterated the importance of legal certainty in administrative law, stressing that individuals must be able to rely on the clarity of the legal rules that govern their interactions with the state. Conclusion Substantive principles of administrative law serve as safeguards to ensure that administrative decisions are made within the bounds of law and that government powers are not exercised arbitrarily. The Rule of Law, the legality principle, and legal certainty are crucial in ensuring that public administration operates transparently, fairly, and within the confines of the powers granted by law. The judiciary plays a key role in overseeing government actions and ensuring accountability, protecting citizens from the excesses of government authority. Principle of Legal Certainty The Principle of Legal Certainty ensures that individuals are able to understand the legal consequences of their actions. It aims to guarantee that laws are predictable, clear, and accessible, so people can make informed decisions. - Non-Retroactive Effect of EU Law: According to Article 297(1) TFEU, legislative acts are published in the Official Journal of the European Union and enter into force on the date specified or, if not specified, on the twentieth day following publication. This ensures that people know when laws will take effect, and the principle generally prevents laws from taking effect before their publication. - Exception to Retroactive Application: Although the general rule prohibits laws from taking retroactive effect, an exception exists. A law may have retroactive application if it clearly follows from its terms or general scheme, if the purpose of the legislation demands it, and if it respects the legitimate expectations of those affected (Case 98/78, Racke). In some cases, the public interest in retroactivity may override private interests (e.g., Balancing in legal discussions, Craig p. 615; Hofmann p. 18). The Rule of Law -- EU Context In the EU, the Rule of Law underpins the legal order. It ensures that lawful acts of the EU institutions cannot be revoked arbitrarily. However, unlawful acts may be revoked, provided that it happens within a reasonable timeframe and with consideration for how much the applicant relied on the lawfulness of the act (Case T-251/00 Lagardère and Canal+ v Commission, para. 140). Principle of Legitimate Expectations The Principle of Legitimate Expectations is a cornerstone of EU law and often comes into play when an administrative decision is canceled or revoked. It protects the expectations that individuals may have based on previous actions or promises made by authorities. - Key Requirements: - Justifiable Reliance: Individuals must have relied on a decision or situation in a manner that can be justified (Case T-176/01 Ferriere Nord Spa v Commission). - Affected Interest: There must be a significant interest for the party whose expectations are affected (Case 74/74 CNTA v Commission, para. 44). - Protection Over Union Interests: The protection of individual expectations takes precedence over the interests of the Union in certain situations. Principle of Proportionality The Principle of Proportionality is vital in ensuring that EU actions are not excessive and are appropriately aligned with the goals they aim to achieve. - Article 5(4) TEU: The principle states that the content and form of Union action should not exceed what is necessary to achieve the objectives set by the Treaties. - Historical Context: The Court of Justice of the European Union (CJEU) established proportionality as a general principle of EU law even before its formal recognition. - Application: The principle is particularly applied when reviewing EU acts that limit individual rights or Member State powers. Three-Step Proportionality Test The CJEU employs a three-step test to assess whether an action is proportionate: 1. Appropriateness: Measures must be appropriate to achieve the objectives pursued by the legislation. For example, Case C-260/89 ERT v DEP. 2. Least Restrictive Means: If multiple measures can achieve the same goal, the least restrictive one must be chosen (Case C-343/09 Afton Chemical, para. 45). 3. Balancing: The disadvantages caused by the measure must not be disproportionate to the aims pursued (Case C-343/09 Afton Chemical, para. 45). Degrees of Judicial Review in Proportionality There are two primary levels of judicial review: 1. Marginal Review: Applies to areas with wide legislative discretion, where the CJEU checks for manifest errors. 2. Full Review: Used for more limited discretion, such as in cases involving administrative acts, member state acts that limit fundamental rights, or balancing rights under Article 52(1) CFR. Precautionary Principle The Precautionary Principle is a growing and important aspect of EU law, especially in the context of environmental and public health policy. - Key Purpose: It manages risks when there is scientific uncertainty but where potential harm may exist, making it especially relevant for areas like environmental protection and public health. - Formalization: Though implicit in earlier CJEU jurisprudence, the principle was formalized in cases like Pfizer and Artegodan, and is referenced in Article 191(2) TFEU. - Application Beyond Environment: Though initially applied to environmental policies, the principle extends beyond this to various policy areas where risk assessment is critical. Review of EU Actions and Risk Assessment The Precautionary Principle justifies the EU\'s protective measures when scientific certainty is lacking, as seen in cases like Pfizer (regarding antibiotic additives in animal feed) and Artegodan (concerning unsafe medicinal products). - Risk Assessment: This includes identifying hazards, assessing exposure, and characterizing risks. The process must be thorough, transparent, and based on the most current scientific data. - Application Guidelines: Measures must be proportional, non-discriminatory, and consistent. Actions must balance societal risks with economic impacts, always prioritizing public health. Case Examples in Risk Assessment 1. Pfizer: Involves the risk of antibiotic additives in animal feed and their potential harm to public health. 2. Artegodan: Concerns the withdrawal of unsafe medicinal products from the market. 3. Monsanto: Focuses on the regulation of genetically modified foods and the safeguards provided by Member States. These cases illustrate the precautionary approach when scientific evidence is uncertain but potential risks justify protective measures.