Global Law - Module A PDF

GLOBAL LAW - Module A - International Law and Contemporary Challenges 1. General characteristics of the international legal system Each legal system is specific for communities. We can only understand the characteristics of the community if we know the legal system and vice versa. There are two sp...

GLOBAL LAW - Module A - International Law and Contemporary Challenges 1. General characteristics of the international legal system Each legal system is specific for communities. We can only understand the characteristics of the community if we know the legal system and vice versa. There are two spheres of international law: PRIVATE and PUBLIC. Private international law defends the private interests of private subjects. Private international law is formed by those norms that define and regulate the limits to the applicability of that State’s laws. → In other words these norms establish when they must be applied and when it is more appropriate to use the private laws of another State. Example: At the termination of a contract, if the contracting parties have different nationalities, they can decide which contractual regulations to use. ON THE OTHER HAND… Public International law protects public interests, interests we hold as a community. (we don't define the law studied in this course as public international law because there’s no need to, considering Public and Private international law are two very different branches). THEREFORE… There is no similarity or connection between Public and Private international law since they deal with very different subjects and belong to two different legal orders: the former belongs to the State’s community and the latter to the domestic law. see PCIJ* Case of Serbian Loans (1929), p. 41: “Any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country.** The question as to which this law is forms the subject of that branch of law which is at the present day usually described as private international law or the doctrine of the conflict of laws. The rules thereof may be common to several States and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing the relations between States. But apart from this, it has to be considered that these rules form part of municipal law.” ** Contracts between non-state actors (like corporations or individuals) are governed by the municipal law (domestic law) of one or more countries. *PCIJ = Permanent Court International Justice → Court of Justice instituted with the League of Nations after WW1 and then replaced by the International Court of Justice (ICJ) under the United Nations. !! REMINDER: European Union law → They do not have the competence to interfere with private international law The EU has limited or shared competence in many areas, meaning it can only act within the powers explicitly granted to it by the EU’s founding treaties (such as the Treaty on the Functioning of the European Union, or TFEU). The concept of competence is important because it defines the boundary between what the EU can regulate and what remains the domain of its member states. In areas where the EU does not have competence, only member states can legislate. THEREFORE… private international law remains largely under the control of national governments, with some exceptions. Until WW2 it exists the private interest of the state (even tho normally the state is a public entity and not a private one). Therefore public international law works with the public interests of the state that were not there nor existed before WW2. !! REMINDER: Rules of international law must also be distinguished from what is called international comity* (practices implemented solely through courtesy, that are not regarded as legally binding). * The Supreme Court in Hilton v. Guyot (1895) famously defined international comity as “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation.” That definition is incomplete, however, as comity encompasses much more than the recognition of foreign acts. The Restatement (Fourth) of Foreign Relations Law defines international comity more broadly as “deference to foreign states that are not required by international law.” → See ICJ North Sea Continental Shelf Cases (1969) paras. 21 «Does the equidistance-special circumstances principle constitute a mandatory rule, either on a conventional or on a customary international law basis, in such a way to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively?» Shorter would be to ask «whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle». «It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases». «It would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise.» «Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be.» International law must also be distinguished from international relations (politics), meaning that international law is more specific. HOWEVER… International law is crucial for international relations and law and politics cannot be separated → they are strictly linked and work together. Ubi societas ibi jus → where there is a society, there are laws International law, as we know it today, is the law of the international society (or community), formed by two categories of subjects*: (the categories are 4, but we won’t cover the other 2, which are: Non-territorial bodies and Non-territorial entities aspiring to become the governing organization of a territorial community.) * Il diritto internazionale può essere definito come il diritto della “comunità degli Stati”. Esso trova fondamento nella cooperazione fra gli stati che si impegnano a rispettarlo per mezzo di norme costituzionali [l’ordinamento italiano all’art 10 comma 1 della costituzione]. ➔ States (basic, fundamental subjects) Definition given by the Montevideo Convention (1933): The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with the other states. states in the modern idea of the state as sovereign identities were born in 1648 with the Treaty of Westphalia ➔ Inter-governmental international organisations (functional subjects) They are functional because they are instrumental, but they were not there before the Westphalia Treaty, they didn’t exist and therefore they’re not basic and fundamental → they produce a certain type of sources (we’ll see later) !! REMINDER: they do not have territory and population (vs- States)!!! What a legal order should do to be a good legal order? It has to perform the 3 main functions typical of any legal system : ➔ law-making ➔ law determination ➔ law enforcement !!! Subjects and law-making will be the main topics of this course !!! MAIN FEATURES OF THE INTERNATIONAL LEGAL ORDER There is no legislative power that legislates in the international law field, on the contrary in each states (majority of times) there is a legislative body which has the duty to pass legislative acts and for this reason we cannot speak about INTERNATIONAL LAWS, there are no laws because there is no legislative body or legislative power. THEREFORE… There is NO CENTRAL AUTHORITY ↓ ↓ ↓ The international community is horizontal = all the states are equal and on the same level, THEY ARE ALL SOVEREIGN STATES. BECAUSE… The international community is not a subordination community but rather a coordination one! All the states, big or small, more or less powerful, participate in the international community by complying with the principle of equality. FOCUS → end of colonialism: massive enlargement of the international community (more or less 200) → if we think about it in terms of nations, that’s a small entity, however, the international community is composed of a few powerful components without a central authority. In the absence of a vertical structure, who performs the functions of the international legal order? States do! States as a community of states, not singularly!! Uti singuli, Uti universi → states as a community (term preferred) perform the functions of the legal order. While singularly they are subjects of the legal order How do they perform this as a community? They produce mainly 2 kinds of rules (there’s also a third one) Lawmaking: ➔ Customary law (spontaneously) It consists of rules that are not written down in formal agreements, but that states follow consistently over time because they believe these rules are legally obligatory (with very few exceptions). ➔ Treaties (voluntarily) They are produced by states. Is international law really law? YES IT IS THE PRINCIPLE OF EFFECTIVITY IS ESSENTIAL and it is at the centre of international law. (arrivata fino a qui a studiare) Lesson 2 - 10/09 - Subjects: States The affirmation “an entity capable of possessing international rights and duties and having the capacity to maintain these rights by bringing international claims” is circular.* *The phrase is considered circular because it uses the concept of having international rights and duties to define what it means to be a subject of international law, and then reinforces that the subject can enforce these rights through international claims. This creates a loop: an entity is defined as a subject of international law because it has rights and duties, and it has rights and duties because it is a subject of international law. In this way, the definition doesn't fully clarify why or how an entity qualifies as a subject; instead, it assumes it already is, without offering a deeper explanation. !! International law recognizes the capacity to act at an international level (valid for both states and inter-governmental int. organizations) and the relevance of the claims and actions at the international level of the entity in question. !! The international legal order does not consider legal personality apart from the capacity to act. How do we know that these subjects are eligible as subjects of the international legal order? There is no central authority that verifies this since the international legal order is a horizontal one. So how does it work? 2 requirements to be considered as a subject of the international legal order (not settled by international law): ➔ Principle of effectiveness (sovereign internally) It’s a central authority capable of exercising control over a certain population living in a given territory. Example → governments in exile lack effectivity ➔ Independence and external sovereignty The state whose legal system is founded on its own constitution and not on the legal system of another state. If they do not meet these requirements they cannot be considered as subjects of international law!!! HOWEVER… both requirements cannot be expected to be absolute! Other necessary requirements? The significance of RECOGNITION Every time a new state entity emerges on the international scene, it is customary among the members of the pre-existing community of states to proceed with the recognition of the new state. Through recognition, the pre-existing states express their willingness to establish relations with it. Definition: Recognition, in fact, consists of a political act carried out by states that wish to establish friendly relations with the state they are recognizing. The act of recognition has no legal effect on the international personality of the entity. → the entity’s international personality—its ability to act as a subject of international law—exists independently of whether or not it is recognized by other states*. Recognition is a political act that signals a willingness to engage with the new state, but it does not confer or alter the entity's fundamental legal standing in the international community. *Recognition is a non-necessary political act!!! FOCUS → Recognition De Jure (complete recognition) - vs - Recognition De Facto (recognition with doubts on the internal stability of the new state → “low-profile” relation) Why Taiwan is not recognized in the int community? - position of China Lesson 3 - 11/09 - International organizations as subject of international legal order They’re functional subjects without a population or a territory that carries out functions. The term 'international organizations' refers to associations between states equipped with their own institutional framework. → These are entities that have an indissoluble connection with states. In fact, organizations are created by the will of states, as expressed in the so-called founding treaty, and they can be dissolved if the member states express such a will. → They are divided into universal organizations, such as the United Nations, and regional organizations, such as the Council of Europe or the African Union or NATO. International organizations have similar structures → They have a tripartite structure, composed of an Assembly, an Executive Council, and a Secretary-General. The first two are collegial bodies made up of states, while the Secretary-General is an individual body and cannot take instructions from member states. → For example, in the UN the Secretary-General is an individual appointed by the other bodies and his/her employees are as well individuals who works in all the different branches of the Secretariat of the UN → which is the backbone of the UN and it carries out the day-to-day work When the organization has the power to adopt binding acts, similar to what happens for the formation of customary international law rules, the different power/political influence of States is reflected in the composition of the organs of the organization and/or the procedural mechanisms for the adoption of their decisions see the examples: ➔ of the UN Security Council (15 members, 5 of which permanent members with veto rights); → REMINDER: The Security Council is the only UN body with the capacity to adopt binding acts ➔ of the EU Council (one member per State, usually voting by a qualified majority) International organizations as subjects of international law are characterized by their specific functions and not by their status of “sovereign equality” (as is the case for States): ➔ have a separate responsibility under international law - a topic studied by the International Law Commission*  ➔ are recognised privileges and immunities in domestic jurisdictions for their assets, properties and representatives (but the question is settled in its own way in each headquarters agreement) * The International Law Commission (ILC) is a body of experts established by the United Nations (UN) in 1947 to promote the progressive development and codification of international law. The ILC is tasked with preparing draft conventions, principles, and legal frameworks on various areas of international law to help clarify, standardize, and advance international legal norms. → the body that codified the laws regulating State responsibility for international wrongful acts → Draft Articles of 2001 ( → did it with Simone module) Lesson 4 - 13/09 - The EU and other entities The EU Treaty and the Treaty on the Functioning of the EU (TFEU) give the EU Institutions the power to adopt several kinds of binding acts (regulations, directives, decisions). → EU regulations always have – and EU law in general can have – a direct effect on the domestic legal orders of the member States and all EU law has precedence over domestic law. The Court of Justice of the European Union ensures compliance with European law in and by member States through: ➔ preliminary rulings ➔ proceedings for failure to fulfil an obligation Such legislative powers have been given by member States originally to the EEC (European Economic Community) only in some sensitive but mainly economic fields and then have gradually extended (“economic functionalism”). → After the Maastricht Treaty, the EEC became the EU's “1st pillar”, and after the entry into force of the Lisbon Treaty, it has been “replaced and succeeded” by the EU. Its unique legislative powers have not yet been extended to one of the other “pillars” of the EU, CFSP. ADOPTION AND IMPLEMENTATION OF EU-BINDING ACTS EU ORDINARY LEGISLATIVE PROCEDURE Are there other subjects of international law, apart from States and International Organizations? YES!!! (a) The Holy See (original functional subject) The Holy See is the supreme authority of the Catholic Church and has the power to conclude international agreements (called concordats), participates in the work of international organizations (it has observer status at the U.N. and the Council of Europe), and takes part in international conferences. The relations between Italy and the Holy See are regulated by the so-called Lateran Pacts (1929). The Holy See, as an international entity, must be distinguished from the Vatican City State, which has a territorial domain. The close connection is due to the fact that the Supreme Pontiff is the central authority of both the Holy See and the Vatican City State. (b) Individuals The individual does not participate in any of the three essential functions of the legal system, except for a limited capacity regarding the recognition of law in relation to treaties that protect human rights. Two categories of norms are taken into consideration: 1) Norms concerning the protection of human rights, which are directed at States, obliging them to grant certain rights to individuals; 2) Norms related to international crimes, which require States to enact criminal laws and punish harmful behaviours. A. Cassese: «limited locus standi in international law» «The features of the world community are unique. Failure to grasp this crucial fact would inevitably entail a serious misinterpretation of the impact of law on this community. » «In the international community States are the primary subjects and individuals play a limited role, they are as puny Davids confronted by overpowering Goliaths holding all the instruments of power.» «The world population of about six billion human beings is currently divided up amongst nearly two hundred States. Without the protection of a State human beings are likely to endure more suffering and hardship than what is likely to be their lot in the normal course of events.» (c) Insurgents In addition to sovereign and independent States, insurgent movements, which seek to overthrow the government of a State through armed struggle or to secede a part of the territory from that State, also participate in international relations as territorial entities. The insurgent movement is considered a territorial entity because it gains its own individuality on the international stage only when it effectively exercises exclusive control over a portion of the territory and its population, and is not merely the result of internal tensions or disorders, such as riots or isolated acts of violence. The international relevance of insurgents is tied to the principle of effectiveness. An insurgent movement is a temporary entity, as it is subject to either evolution or devolution: it is destined either to transform into a State or to regress to being a mere group of individuals. The international capacity of insurgents is essentially limited to the norms that regulate the conduct of hostilities with the legitimate government and those that govern the exercise of authority by the insurgent movement over the territory it controls. Additionally, the movement has the capacity to conclude agreements with other international entities. (d) National liberation movements They are not subjects of international law because they lack the requirement of effectivity. Although recognized by the host governments for reasons of political expediency, they do not have actual sovereignty over the territory occupied by another State. EXAMPLE Based in Tunis, the Palestine Liberation Organization (PLO) proclaimed the State of Palestine in 1988, despite not having any territorial base. Even today, despite the transfer of various territories from Israel to the control of the Palestinian National Authority, there are doubts about the actual statehood of Palestine for several key reasons: ➔ Its territories are still effectively under Israeli military control. ➔ The agreements that sanctioned this transfer resemble, more than international treaties, understandings made with colonial powers during the decolonization phase in preparation for full independence, and they are not registered with the UN. ➔ Additionally, the PLO still holds observer status at the UN, rather than full membership. FOCUS → Insurgents are armed groups that challenge the authority of an established government or regime, often through violent means. They may be motivated by political, ideological, ethnic, or religious reasons. Insurgencies typically arise within a state's borders, and their goal is to overthrow or undermine the existing political order, sometimes without a clear alternative vision for governance. NLMs are political and military movements that seek to free a population from foreign domination, colonial rule, or oppressive regimes. They typically operate within the framework of self-determination, a principle enshrined in international law. NLMs aim to establish a new state or government that reflects the will of the people they represent. Lesson 5 - 16/09 - Sources: Custom General rules (directed to all subjects of international law) ➔ are of a customary nature ➔ are not so many ➔ are not written ➔ can be derogated from by treaties, exception made for very few jus cogens rules* Definition: These are rules that apply to all subjects of international law, such as states, international organizations, and, in certain cases, individuals. They are typically derived from customary international law and are considered binding on all members of the international community, whether or not they have explicitly agreed to them. * These are fundamental, overriding principles of international law from which no derogation is allowed. Examples include the prohibition of genocide, slavery, and torture. Treaties or customs that conflict with these norms are considered invalid. Particular rules (directed only to those subjects who have voluntarily subscribed to them): ➔ are very abundant (in comparison to general international law) ➔ cover very different subjects (from bilateral commercial treaties to “codification” conventions on subjects of common, shared interest) ➔ being capable of derogating from general international law (exception made for jus cogens) Statute of the International Court of Justice - Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law;  (clarify this par c) the general principles of law recognized by civilized nations; d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (...) Though not very numerous, and necessarily not presenting very detailed content because of their unwritten nature (never fixing exact time limits or complex procedures, for instance), general international law rules are essential for the international legal order: ➔ on some general rules of structural nature, often named «structural principles» (rules descending from the sovereign equality of States – such as immunity of States from other States’ jurisdiction -, consuetudo est servanda and pacta sunt servanda) the modern characteristics of the international legal order are shaped. ➔ general rules protect the individual interests of all States (e.g. diplomatic protection of citizens) or of all States presenting certain features (e.g. coastal States) – international law for co-existence. ➔ in recent years (after the II WW) a set of fundamental values of the International Community has emerged and a new category of general international rules – jus cogens – has come into being, enshrining those values (prohibition of the use of force if not for legitimate defence, prohibition of gross violations of human rights, prohibition to impede «external» self-determination of peoples). !!! All general international law rules are customary!!! CUSTOMARY LAWS International custom is a constant and uniform behaviour repeated by states. Its fundamental elements are: a) A uniform, constant, and repetitive behaviour (referred to as diuturnitas, or practice) by the majority of states. b) The belief in its obligatory, necessary, or socially required nature (opinio juris sive necessitatis). Who implements the diuturnitas practice? The practice must be virtually uniform and followed by the majority of states. When referring to the "majority," it does not mean that every member of the international community must follow the behaviour, but rather most of them. The behaviour must be attributable to a state. In this regard, not only the actions of international relations bodies (such as treaties, diplomatic notes, and conduct within international organizations → external acts) are considered, but also the actions of domestic courts (laws, rulings, administrative acts → internal acts). How a diuturnitas practice is established? A decisive role is played by jurisprudence, which can significantly contribute to the evolution of customary law (for example, consider the transformation of state immunity: in the past, foreign states were granted absolute immunity; today, foreign states are granted only public immunity, not private, meaning in relations with citizens). !! REMINDER ➔ Instant customs do not exist, as they lack the stability and repetitiveness required by unwritten law. ➔ Negative practice, in itself, does not prove the existence of an obligation to refrain from acting (non-facere). It must be supported by Opinio Iuris. Negative practice (not doing something) by itself does not prove there’s a legal obligation to refrain from that action. To become a customary rule, it needs both: Consistent state practice (in this case, refraining from the action), and Opinio juris (the belief that refraining from the action is legally required). How do we identify and evaluate the Opinio Juris of a State? (generally, as we said above, by external and internal acts) ➔ Declarations ➔ The position taken in the assembly organs of international organizations !! BE CAREFUL !! ➔ Decisions of international courts, such as the ICJ, do not concur directly to build up State practice and opinio, because States do not promote them, but they indirectly influence State practice (so… DO NOT contribute to opinio juris but IT CONTRIBUTES to diuturnitas) ➔ While the adoption of a recommendation by the General Assembly of the UN per se is an act of the organization, the vote expressed by States in the adoption of the recommendation can be an element to infer the opinio juris of the States Do customary rules need, at their birth, the support of all States? NO, otherwise also customary law, just like treaty law, would be based on voluntary consent and we would not have general law (custom would be the result of a tacit agreement). HOWEVER… The "persistent objector" doctrine is a concept in international law that allows a state to claim it is not bound by a new customary international law rule if it has consistently opposed that rule from the beginning, even before it became widely accepted as customary law. Here’s a breakdown of the doctrine and its current status. The International Court of Justice (ICJ) has acknowledged this doctrine in cases like the Asylum (1950) and Fisheries (1951) cases, even though those references are obiter dicta (comments made in passing and not essential to the case's decision).  ➔ Individual States: The doctrine applies primarily to individual states rather than groups of states. A single state can invoke the persistent objector status if it has consistently opposed the formation of a customary norm. ➔ Group of States: There is no formal doctrine of "group persistent objection." However, if several states collectively oppose a rule, they might strengthen their individual claims, but each state would still need to demonstrate its own consistent objection. DEFINITIONS: Derogation = the act of diminishing or reducing the force, value, or effect of something, often used in legal contexts to describe a partial or temporary suspension of a law or regulation. Jus cogens = is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. Lesson 6 - 17/09 - Sources: Treaties Cassese’s definition of Treaties: “Merger of the wills of two or more international subjects for the purpose of regulating their interests by international rules”. Treaties or international agreements are particular or contractual norms of international law, arising from the agreement between two or more subjects of the international legal system, to regulate a specific relationship between them. ➔ The inviolability and observance of contractual norms are guaranteed by the customary principle pacta sunt servanda (= agreements must be kept)*. ➔ Unlike general customary norms, contractual norms are not valid erga omnes (towards all), but only for the parties involved in their creation. ➔ Additionally, they must be incorporated into the domestic legal systems of the relevant states through implementing legislation. * The only exception to this principle is the doctrine Rebus sic stantibus. In international law, it refers to a legal doctrine that allows for treaties or agreements to become inapplicable if there has been a fundamental change in circumstances since the time the agreement was made. Essentially, it means that an agreement remains binding only as long as the conditions under which it was originally signed remain the same. ↓ ↓ ↓ Vienna Convention on the Law of Treaties (VCLT) - Article 62.1 “A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.” Also: pacta tertiis nec nocent, nec prosunt In international law, this doctrine means that a treaty or agreement cannot create obligations or confer rights upon states or entities that are not parties to the agreement unless those third parties expressly consent to be bound by its terms. Particular application of the “rebus sic stantibus” clause Succession of States to Treaties This refers to the legal process by which a new or changing state inherits the rights and obligations of treaties established by its predecessor state, typically due to changes in territorial control or the emergence of a new state. 1. Change in Territorial Boundaries ("Mobility of Borders") - Definition: This occurs when a state's borders change due to absorption (annexation) or secession (part of the state breaks away), but the state's identity as a legal subject remains unchanged. - Effect on Treaties: Treaties previously held by the original state may still apply, but their territorial scope may adjust according to the new borders. The concept here is that treaties "move" with the state's new borders, continuing to apply within the new territorial limits. 2. Replacement of One State by Another (Change of Subjectivity) - Definition: This involves one state being replaced by another in responsibility for the international relations of a given territory. This usually happens in cases of state merger, dissolution, or the emergence of a new state. - Effect on Treaties: In this case, the successor state may either inherit treaties from its predecessor or be considered a new entity in the eyes of international law, depending on the situation. The new state organization can take over the predecessor’s rights and obligations in treaties, often continuing the old treaties with adjustments for the new political reality. Types of Treaties and Their Succession Rules: 1. Political Treaties (Also Called "Personal" Treaties) - Definition: These are treaties closely tied to the political regime in power at the time of their signing. They often establish rights or obligations that are directly linked to the political orientation of the government. - Effect on Succession: These treaties typically terminate upon the succession of states because they are seen as being unique to the former regime. Since they are "personal" to the regime in power, a new regime may not be bound by them. 2. Territorial or "Localized" Treaties - Definition: These are treaties that govern specific territorial obligations or arrangements, such as demilitarized zones, transit rights, or port facilities. - Effect on Succession: These treaties usually continue through succession, as they pertain to the use or regulation of specific territories, regardless of the change in state sovereignty. For example, agreements about the use of certain transit routes or port facilities may still apply even after a change in control of the territory in question. CONCLUSION OF TREATIES In general international law, there aren’t strict rules about how treaties must be formed, including whether they need to be in writing. However, practice shows two primary ways of concluding treaties: ➔ Conclusion in a solemn form This is a formal method used for significant treaties and typically involves several steps: Negotiations: Representatives (often called plenipotentiaries) are given full powers to negotiate on behalf of their states. This means they have the authority to discuss and agree on the terms of the treaty. Signature: After negotiations, the representatives sign the treaty. This signature indicates that they recognize the text of the treaty as agreed upon. However, it doesn’t make the treaty binding just yet; it's a step towards future ratification. Ratification: Once the treaty is signed, each state must then express its intention to be legally bound by the treaty through a process called ratification. This usually involves a formal act, often by the head of state or the legislature, to confirm the agreement. Exchange or Deposit of Instruments: After ratification, the states either exchange their ratification documents (instruments) or deposit them with a designated authority, such as the United Nations.  Entry into Force: Once the necessary instruments of ratification are exchanged or deposited, the treaty officially enters into force, meaning it becomes legally binding on the states involved. ➔ Conclusion in a “simplified form” (so-called “executive agreements”) This method is less formal and is often used for agreements that do not require the same level of formality as treaties. The process is as follows: Negotiations: Similar to the solemn form, representatives negotiate the terms of the agreement. Signature: The key difference is that, with executive agreements, the signature of the representative itself expresses the state’s consent to be legally bound by the agreement. There’s no need for a subsequent ratification process. Examples → 1972 Agreement on the Prevention of Incidents on and over the High Seas (INCSEA Agreement) → USA and Soviet Union 1941 Atlantic Charter → USA and UK Conclusion of Treaties: the Italian Constitution Each State has its own domestic rules regulating the competencies of its organs in concluding treaties. The Governments are normally in charge of conducting international negotiations. In Italy, the Constitution says ➔ ratification is an act of the President ➔ the previous authorization of the Parliament is required for the conclusion of important treaties HENCE… it should be not possible to conclude important treaties in a simplified form, but it has happened in the past (for example → adhesion to the United Nations). ➔ manifest violation of a rule of international law of fundamental importance regarding competence to conclude treaties is a cause of invalidity of treaties (art. 46 VCLT) – THE ONLY CASE OF RELEVANCE OF DOMESTIC RULES IN THE INTERNATIONAL LEGAL ORDER. In the case of the Italian adhesion to the UN, Parliament has proved its approval of the adhesion when it voted laws descending from the Italian participation to the UN. JUS COGENS IN THE VCLT For a long time, the only specific reference to jus cogens in international documents was in articles 53 and 64 of the VCLT (now also the Draft articles on the responsibility of States for wrongful acts drafted by the International Law Commission and some decisions of the ICJ). Treaties conflicting with a peremptory norm of general international law («jus cogens») are invalid, and exclusively for this cause of invalidity the VCLT sets a complete arbitration clause founding the competence of the ICJ to settle disputes among Parties on this issue. Article 53 "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." Article 64 "If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates." FOCUS → difference between void and invalid A void contract is one that is considered never legally valid from the beginning. It is treated as if it never existed in the eyes of the law, and neither party can enforce it. A voidable contract is valid and binding unless one party decides to void (or invalidate) it. This contract is considered legally enforceable until a party takes action to cancel or terminate it. Lesson 6 - 18/09 - Other sources; implementation of international rules within national systems General principles of law recognized by civilized nations What are they?: General principles of law refer to fundamental legal concepts that are widely accepted across many legal systems around the world. They are not derived from specific treaties or customary law but represent common legal ideas shared among different nations. Unlike customary law, general principles do not require state practice to validate them in the international context. They are instead abstract principles that underlie justice and fairness in law, assumed to be universal but not derived from the actions of states in the international arena. !!! These principles are considered a subsidiary source of international law. This means they can be referenced or used when no applicable treaty or customary international law exists to resolve a legal dispute !!! The concept originates from Article 38.3 of the Statute of the Permanent Court of International Justice (PCIJ). Applied in particular to: ➔ international administrative law (governing the relations between international organizations and their staff) ➔ international criminal law → ad hoc international criminal tribunals for ex Yugoslavia and Rwanda have frequently resorted to general principles of criminal law recognized in the principal legal systems of the world. Also, the Rome Statute of the International Criminal Court envisages the possibility that the Court might resort to such a subsidiary source. EXAMPLES: Nemo Iudex in Re Sua: This Latin phrase translates to "no one should be a judge in their own case." It embodies the principle of impartiality and fairness in legal proceedings, ensuring that judges do not decide cases in which they have a personal interest. Inadimplenti Non Est Adimplendum: This principle means "a party that fails to perform its obligations cannot demand performance from the other party." It emphasizes fairness in contractual obligations, ensuring that a party who does not fulfil its responsibilities cannot enforce the agreement against another party. or… Pacta Sunt Servanda SOFT LAW Not binding resolutions, usually adopted by the assembly organs of international organizations (UN General Assembly, UNESCO General Conference...) Usually named «recommendations» or «declarations of principles» !! Very important example: UN Universal Declaration of Human Rights (1948) FOCUS → While the UDHR itself is not legally binding, it serves as a foundational text that has influenced international treaties, customary law, and the development of jus cogens norms. The principles in the UDHR represent fundamental values that have, in some cases, evolved into binding norms, especially where they align with peremptory principles that protect basic human dignity and fundamental rights. It doesn’t matter if they are repeatedly adopted in the same subject matter: repetition does not change their not-binding nature. May be regarded as declaratory or indicative of a customary rule or helping to form such a rule, if diuturnitas and opinio juris have formed on a certain subject. Example: The 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, adopted by the General Conference «Mindful of the development of rules of customary international law as also affirmed by the relevant case-law, related to the protection of cultural heritage in peacetime, as well as in the event of armed conflict». Definition: Soft law refers to non-binding agreements, guidelines, principles, or declarations that influence international relations and policy-making but do not have the legal force of binding treaties or customary law. Unlike hard law, which imposes specific legal obligations on states, soft law serves to: 1. Provide Guidance: It often outlines best practices or standards that states and organizations are encouraged to follow. 2. Facilitate Cooperation: Soft law can foster collaboration and consensus among states on various issues, such as environmental protection, human rights, and trade. 3. Influence Behavior: While not legally enforceable, soft law can shape norms and expectations in international relations, leading to eventual binding agreements or customary law over time. THEREFORE… Soft law is: ➔ Non-binding ➔ Flexible ➔ Evolving Implementation of international rules within national systems Two principal theoretical constructs: ➔ Monistic view, advocating the supremacy either of domestic law or of international law (international and domestic sources can be hierarchically ordered because they do not pertain to distinct legal orders) ➔ Dualistic doctrine (shared by the Italian Constitutional Court) suggests the existence of two distinct sets of legal orders: international law, on one side, and municipal legal systems on the other. International law provides that States cannot invoke the legal procedures of their municipal system as a justification for not complying with international rules (see Article 27 VCLT). VCLT Article 27 “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.” VCLT Article 46 “1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” Though national implementation of international rules is of crucial importance because most international rules, to become operative, need to be applied by State officials or individuals within domestic legal systems, international law does not contain any regulation on implementation. CASE STUDY: PALESTINE 1. PALESTINE’S UNESCO ADMISSION  unesco-constitution-and-vote-on-palestine-2019-09-17-13-09-18.pdf UNESCO Constitution Article II Membership 1. Membership of the United Nations Organization shall carry with it the right to membership of the United Nations Educational, Scientific and Cultural Organization. 2. Subject to the conditions of the Agreement between this Organization and the United Nations Organization, approved pursuant to Article X of this Constitution, states not members of the United Nations Organization may be admitted to membership of the Organization, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference. 3. Territories or groups of territories which are not responsible for the conduct of their international relations may be admitted as Associate Members by the General Conference by a two-thirds majority of Members present and voting, upon application made on behalf of such territory or group of territories by the Member or other authority having responsibility for their international relations. The nature and extent of the rights and obligations of Associate Members shall be determined by the General Conference. (...) 2. SECURITY COUNCIL REPORT FOR PALESTINE ADMISSION IN THE UN un-admission-committee-on-palestine-2019-09-17-13-08-14.pdf The document is a report from the United Nations Security Council's Committee on the Admission of New Members, specifically concerning Palestine's application for UN membership. Here are the key points and abstract of the document: 1. Criteria for Membership The Committee evaluated Palestine's application based on Article 4 of the UN Charter, which requires a state to have a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. Additionally, the state must be peace-loving and willing to carry out the obligations of the UN Charter. 2. Statehood Criteria  - Permanent Population and Defined Territory: It was argued that Palestine meets these criteria, although there are concerns about its control over its territory due to the Israeli occupation and Hamas' control in Gaza. - Government: The Palestinian Authority is recognized, but Hamas' control over a significant portion of the population raises questions about effective governance. - Capacity for International Relations: Despite limitations under the Oslo Accords, Palestine has been recognized by over 130 states and is a member of several international organizations. 3. Peace-Loving Nature - Palestine has declared itself a peace-loving state committed to resolving the Israeli-Palestinian conflict through negotiations. However, concerns were raised about Hamas' refusal to renounce violence. 4. Obligations of the UN Charter Palestine has made a formal declaration accepting the obligations of the UN Charter, similar to Israel's application in 1948. 5. Political Context The broader political context, including the Israeli-Palestinian conflict and the two-state solution, was considered important in the deliberations. The Committee emphasized that the application should not hinder peace talks. 6. Committee's Conclusion The Committee was unable to reach a unanimous recommendation to the Security Council regarding Palestine's application. The report was approved, but no consensus was reached. Overall, the document reflects the complex political and legal considerations involved in Palestine's application for UN membership, highlighting differing views on its fulfilment of the necessary criteria and the implications for the Israeli-Palestinian peace process. 3. AD HOC LIAISON COMMITTEE MEETING un-special-coordinator-on-palestinian-state-building-2019-09-17-13-08-53.pdf The document is a report by the UN Special Coordinator on Palestinian State-Building (AHLC), focusing on the challenges and recommendations for advancing the state-building agenda in the occupied Palestinian territories (oPt). Here are the key points and abstract of the document: 1. Political and Institutional Challenges The report highlights the constraints on Palestinian state-building due to the ongoing Israeli occupation, unresolved Israeli-Palestinian conflict issues, and internal Palestinian divisions. These factors limit the potential of institutional achievements and necessitate a credible political horizon for a two-state solution.  2. Social and Economic Development The Palestinian Authority (PA) is committed to social development as outlined in the National Development Plan (NDP). The report emphasizes the importance of improving service delivery, social safety nets, and equitable economic growth. International support is crucial to addressing chronic poverty and ensuring social assistance. 3. Recommendations for Donors and International Community The report calls for increased budgetary assistance from donors to meet the PA's recurrent expenditure needs. It encourages support for UN recovery and development efforts through the PA/UN oPt Trust Fund and the Consolidated Appeal (CAP) to address humanitarian needs. 4. Security and Human Rights The report stresses the need for continued security cooperation between the PA and Israeli forces, with a focus on respecting human rights and the rule of law. It also calls for Israel to freeze settlement activity and cease demolitions in Area C and East Jerusalem. 5. Movement and Access Recommendations include improving movement and access for Palestinians, particularly in the Jordan Valley and between East Jerusalem and the rest of the oPt, to facilitate economic activity and access to essential services. 6. Humanitarian Concerns The report outlines immediate steps to address humanitarian concerns, including the need for predictable access to education and healthcare, and the importance of addressing the needs of vulnerable populations, such as refugees and children affected by conflict. 7. Fiscal Crisis and Economic Growth The PA faces a fiscal crisis that threatens its achievements and future progress. Economic growth, driven by government spending and donor support, remains unsustainable due to volatility and constraints on private sector access to markets. Overall, the document underscores the need for a comprehensive approach that combines political progress with socio-economic development to achieve sustainable state-building in the Palestinian territories. CASE STUDY: TAIWAN 1. THE CHINA POST: TAIWAIN’S PARTICIPATION IN ICAO The document discusses the United States' support for Taiwan's meaningful participation in the International Civil Aviation Organization (ICAO) in the context of its request to participate in an important meeting. The United States asserts that it supports Taiwan's involvement in international organizations that do not require state sovereignty and emphasizes the importance of global aviation security and efficiency, hoping that all stakeholders can contribute to these issues.  Key Points - The United States supports Taiwan's meaningful participation in ICAO, a specialized agency of the United Nations. - Taiwan did not receive an invitation to participate in the ICAO triennial assembly taking place in Montreal. - The State Department spokesperson reiterated U.S. support for Taiwan in contexts where state sovereignty is not required. - The United States recognizes that aviation security is a global issue and fundamental for all involved stakeholders. - Taiwan has previously participated as an observer in the ICAO assembly in 2013, represented as "Chinese Taipei." - The United States encourages Taiwan to continue contributing significantly to global challenges. - The issue of Taiwan's involvement in ICAO highlights the political tensions between China and the United States. 2. PAPER ON TAIWAN’S EXCLUSION FROM ICAO The document discusses the issue of Taiwan's exclusion from the International Civil Aviation Organization (ICAO), highlighting how this situation significantly compromises global aviation security and governance. Despite its strategic position and robust aviation industry, Taiwan cannot officially participate in ICAO's deliberations, limiting its ability to comply with international standards and to effectively contribute to global aviation safety. This exclusion has implications not only for Taiwan but also for the safety of all air transport users worldwide. Key Points - ICAO has played a crucial role in improving global aviation safety for over seventy years. - Despite being economically significant and having a growing aviation system, Taiwan is excluded from ICAO due to legal and political reasons. - Taiwan's exclusion from ICAO creates a significant gap in the global aviation safety network, affecting the air safety of all. - Taiwan independently manages its aviation and provides air traffic control services, but without ICAO support, its overall standards are inadequate compared to other states. - The absence of Taiwan from global safety audits compromises aviation security, creating vulnerabilities. - Taiwan has shown a consistent commitment to complying with international standards, despite lacking direct access to ICAO. - Diplomatically, Taiwan seeks to achieve a more significant role and the opportunity to participate as an observer state in international forums, including ICAO. Treaty of the Moon + agreements relating to activities in Outer Space https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html Montego bay convention