International and European Law PDF

INTERNATIONAL AND EUROPEAN LAW Index: 1. What is international law? 2. Subjects of international law (1) 3. Subjects of international law (2) 4. Sources of international law 5. Treaty law 6. Elements of Law of IOs 7. International law in national legal systems 8. Law of international responsibility 9. The international means of dispute settlement 10. Jurisdiction, privileges, immunities 11. The use of force 12. What is the EU? 13. Values and objectives of the EU 14. Competences of the EU 15. Legal sources of the EU legal order 16. Political institutions and law making procedures 17. EU law in the legal systems of the member states 18. Juridical protection in the EU 19. Internal market (1) 20. Internal market (2) 21. EU Citizenship 22. External action Seminars 1. Climate change 2. Sanctions 3. Asylum and migration 4. Brexit International and European Law - BAES S3 Lecture 1: WHAT IS INTERNATIONAL LAW? Poutine named law arguments before attacking Ukraine, stating that it was acting in self-defence (UN Charter, art 5) and that there was a genocide on Russian minorities (Convention on the prohibition of genocide). Actors use international law, believe in it and dispute under its rule. 1. Definition To define international law, we must know the society that produces, applied, and misapplied the law. In order to appreciate the present affairs of law, one must know its history (context, construction…). International law = set of rules made by states in order to regulate the legal relations between them This entails that both the creators and receivers of the law are the same. It is the first difference with domestic law where there are legislators (government, parliament, assembly) according to the constitution that have the right to create legislation which applies to all citizens. Then there is a hierarchy with legislators being above the recipients. When making international law, there is no legislative authority above the states. The states might however have different applications and interpretations of it. Though there are obligations that the law must fulfill and if the legislators violate certain rules, the law they created is declared null and void. On the international level, the conditions to accept a law as valid is if it doesn’t contradict the jus cogens principles. Who and why? -> legal practitioners also domestically thought IL is often wrongly not identified in the problem, IL is made by domestic parties and IL influences domestic law -> interdependence between countries also on domestic matters -> media when covering issues like AI, climate change and other global issues with legal presence One basic principle in international law is the idea of state sovereignty (everything stems from this). International law constraints the exercise of both external and internal sovereignty of states. Ex: constrains the use of force, law of the see on EEZ, prohibition of genocide… IL is an obstacle to how states may exercise their sovereignty in terms of economic policies, police, politics also within their internal domain. There has been a recent expansion of IL with an increasing number of areas involved and an increasing number of subjects to be regulated (IOs, individuals, NGOs, companies). IL still somewhat has legislators that are making the law but the states must want it to create it. In IL there is also a distinction between private and public law (conflict of laws). 1 International and European Law - BAES S3 Private international law (PIL) / conflict of laws = bodies of laws belonging to domestic legal systems regulating the relations between non-public elements including one alien actor. Ex: legal regulation between two companies including one alien company, tort committed outside the borders… Regulation between states and limiting external sovereignty -> PIL = in all countries, guide domestic law to see whether it has jurisdiction and which applies between private parties including a foreign element (or if a contract performs abroad, or if a damage of tort is caused/suffered abroad) -> promotion of international conventions on uniform domestic rules of PIL -> IL also defines the process by which it produces, uses and applies the set of rules which requires interdisciplinarity -> interstate nature of IL with the scope of application and the need to create diplomacy, it regards both internal (applied and infringed on domestic ground) and external sovereignty (act of trespassing) Every state has its own conflict of laws rules on how to deal with the separation between the two spheres. Because of the failed harmonization on this matter, there are some attempts to promote a common PIL to decide which law applied and what judges are competent -> permanent conference in The Hague. Internal sovereignty -> IL provides obligation for domestic laws (ex: climate change laws, trade regulation to implement and apply by officers) -> redress is against the domestic state when law is misapplied 2. Why undertake obligations? States produce international rules providing self constraint in exchange for corresponding advantages. There is a key role in reciprocity (quid pro quo) in the development of international law. Ex on the treatment of aliens: State A will treat the citizens of State B in a certain way, assuming that state B will treat citizen A in the same way. If you make war on me, I can do the same. => when making IL, states expect reciprocity. There is a general ban of use of force in order not to have a constant threat of war. However it is a widespread consensus to use violence in case of aggression (self-defense). Why undertake international obligations? -> law involved duties and rights by reciprocity = bilateral obligations (synallagmatic) -> erga omnes obligation = towards everyone, international community (since WW2) 2 International and European Law - BAES S3 -> obligation of non military force because of the right to integrity and political independence Example of the Rio Grande Agreement in 1906 Before the principle of sovereignty, the law was made through war so the upper hand was making the hierarchy and was hegemonic in nature. In the case of the Rio Grande: transborder river between the USA and Mexico. It was essential to human needs with irrigation for agriculture, industrial development (energy, cooling etc). The upperflow country can use the water and diverse the water to the detriment of the lower running countries. - The US argued that it is sovereign in its own territory so it should have an unlimited right on its water. - Mexico argued that it had the same sovereign right and should therefore receive untouched water on its territory. => same argument but 2 different claims making it irreconcilable The Rio Grande agreement is the first codification of equitable and reasonable utilization of water. It is a mutually decided self constraint. They accept to give up some claims for utilitarian reasons of avoiding war and the overall “all or nothing outcome”. Indeed, it shows that it is always better to go on with peaceful cooperation because otherwise everyone breaks the law. This cooperation is also valid for such things as fleeing criminals: states can make agreements operating domestically to allow the arrest of a US criminal on German soil for instance. They usually always have a utilitarian purpose. 3. Why breach international law? The large majority of IL rules are silently complied with everyday. Ex: when buying a plane ticket, you are complying with like 40 rules, but usually it is noticed because of an infringement. States sometimes infringe obligations stemming from rules of their own making or reject the same rule altogether. There is sometimes a problem of coordination within the state: those who negotiate international rules are different from those who apply it. They both have a different lens on the matter in this case. In fact: “many of the things international law tries to do have to be done at the national level” (Crawford). Why comply or breach IL? -> we often emphasize on the duty part when there is a problem but it is usually because of the “rights” side that countries comply with IL -> no law enforcement mechanism but participatory nature of the sources of IL, compliance is induced -> need for more and more administrative coordination on the different levels because of the increasingly interdependent matters -> there is a difference between non compliance and breach -> tension between one’s self interest and the obligation from the law, it is usually because of the wrong interpretation of the law or in view to change it (ex Truman’s Proclamation for the sea rights) 3 International and European Law - BAES S3 4. IL and politics «Policy considerations, although they differ from ‘rules’, are an integral part of that decision making process which we call international law; the assessment of so called extralegal considerations is part of the legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law neutral, for even such refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics» (Higgings) «International law and international politics cohabit the same conceptual space. Together they comprise the rules and the reality of the ‘international system’, an intellectual construct that lawyers, political scientists, and policymakers use to describe the world they study and seek to manipulate. As a distinguished group of international lawyers and a growing number of political scientists have recognized, it makes little sense to study one without the other» (Slaughter) Constitution of international society of states? => ubi societas, ibi ius / ubi ius, ibi constitutis-> if there is legislation then there is a constitution to define the split of power and the creation of law procedures, we sometimes consider the UN Charter as carrying constitutional principles -> there is no written constitution as such but it doesn’t mean that there is none (UK) Constitutional features = rules and principles connected to the political context producing them, it is the organization of power -> prime principle of the sovereign equality of states (mid 17th) with: 1. consensual and participatory mode of law making (treaties and customs), consuetudo est servanda, pacta sunt servanda 2. consensual dispute settlement (self assessment of the legality) 3. self help in ultimate law enforcement function -> substantive law rests on the political independence of states that are free to take obligations against rights -> second principle: non intervention in internal affairs of other states: horizontal legal setting after the Peace of Westphalia against a vertical legal setting under the Roman Empire 5. Key features of IL A legal system is usually defined according to its 3 functions: law making, law assessing and law enforcement. 4 International and European Law - BAES S3 a) Lack of a centralized legislature (UN GA is not a parliament), but states make the law either contractually or by custom b) Lack of compulsory jurisdiction of courts (jurisdiction is based on consent) when it is mandatory domestically to be judged for legal wrongdoings. In IL it is based on the free will and acceptance of the sentence. c) Lack of a centralized and mandatory enforcement mechanism (there is no international police) except when it is decided by the treaty but usually unlikely We could therefore wonder if it is a proper legal system. International institution: intergovernmental so it regards foreign policy thus the external sovereignty but it is not legally binding or it depends on the domestic enforcement, there is no denunciation or recess so anyone can also quit the organization when the sovereignty is “too” hurt -> shift from co-existence to cooperation Differences and similarities with domestic law -> compliance and effectiveness is not much higher on the domestic level with many rules not being used or considered as breaches and things are unenforced -> major structural difference: parliament legislator vs representent of the MS (foreign policy minister) Predictability -> customary law and general principles are unwritten and indeterminate also for treaty law because it is the result of negotiations, which is the same in a domestic parliament -> no legal system is certain or predictable (interpretation of facts…) but it is the aim to have the highest possible predictability => must remain goal oriented and not just assume any certainty of outcome Question of effectiveness “The health of the law (...) will depend largely on the health of the society, on its ability to contain explosive forces and mobilize creative ones for general welfare” (Henkin) -> values can change and laws as well ! Every legal system presents problems of effectiveness, insofar as in every legal system legal subjects and actors violate the rules. According to both naturalist and positivist thinkers, the validity of rules does not depend on their effectiveness. A homogeneous society produces law complied with spontaneously and a divided society doesn’t produce largely accepted legislation. Today there isn’t a Cold War anymore but a multipolar world with diverse states and societies. To change a constitution, there needs to be some type of violent revolution because of changes in values. In the UN Charter: it is with a resolution after a diplomatic convention or else. Ex: implementation of fundamental HR. Jus cogens 5 International and European Law - BAES S3 -> erga omnes obligation to provide legal protection to indivisible general interest if a treaty doesn’t respect them, it is declared null and void => peremptory norm, jus cogens=> it is a milestone because it affects domestic law -> follows a trend of internationalization of national policies after WW2, along with the fight for human rights, racism, increasing the need for rule of law. It is also linked with the rise of international trade and the fall of the USSR facilitating liberalization. In International Law, however: 1. Repeated non-compliance with a rule, accompanied by the acquiescence of the other actors involved, may in the long run lead to a change or replacement of that rule (ex iniuria oritur jus); 2. The lack of centralized enforcement mechanisms, the preponderant role of sovereignty and consent, and the complexity and ambiguity of some regulatory regimes are all factors that, in comparison to domestic systems, may contribute to a lower overall effectiveness of the international legal system. Decline of effectiveness -> failure of UN Peacekeepers in Somalia -> disagreement between NATO and the UN on Yugoslavia -> bombing of Iraq in 2003 by the US/UK -> revival of nationalism, distrust in the rule of law and international cooperation under sovereignist movements (ex US under Trump) => pendulum between internationalism and nationalism 6. History of IL Traditional IL After the fall of the Roman Empire there were conflicts for the establishment of vertical law making. After the 30 years war came the peace of Westphalia in 1648 including independent entities, all related and sovereign in their own territory and with their own religion. There was a Euro-centric and homogenous International Society based on the principle of sovereign equality of states (superiores non recognoscentes). They interacted with diplomats, considered as conspirators but they were not executed because your own diplomats were abroad doing the same thing and it would make them executed in turn. This is the expectation of reciprocity to create diplomatic immunity. It was initially not a legal issue but a societal behavior of abstention. Eventually the states practiced it until its implementation. There were however various efforts to challenge this more horizontal legal system such as the Napoleonic wars, Bolshevik revolution, III Reich… However the UN Charter states in article 2 the Westphalian principles of sovereignty equality, peaceful settlement of disputes and no use of force. Contemporary IL 6 International and European Law - BAES S3 At the end of Second World War (1945): 3 winning states (UK, USA, URSS) create the United Nations to avoid another world conflict. Roosevelt and Churchill aim at establishing an international legal order based on prohibition of use of force, protection of human rights, free trade and protection of foreign investments. «[T]here is no reason why a regional organization of Europe should in any way conflict with the world organization of the United Nations. On the contrary, I believe that the larger synthesis will only survive if it is founded upon coherent natural groupings». (Churchill) «[W]e cannot live alone, at peace: […] our own well-being is dependent on the well-being of other nations far away. […] We have learned to be citizens of the world, members of the human community». (Roosevelt) Art 1 UN Charter: - enumeration of the goals of the UN including peace and security through the promotion of IL, - create an international community based on the principle of equal rights and self determination of peoples, - solving problems of the world - promote human rights without discrimination - harmonize actions of nations to achieve these goals. Art 2 UN Charter: - principle of sovereign equality - fulfillment in good faith of the obligations of the charter - peaceful dispute settlements not to endanger international security and justice - prohibition of the use of threat and force against territorial integrity and political independence - provide every assistance to the UN to take any action in accordance with its goals - non MS shall act in accordance of these principles for security - the UN shall not intervene in matters of domestic jurisdiction International Constitution? The UN charter can rightly be said to have been an important component of the constitutional principles of contemporary IL. Yet the key constitutional principles of the international society date back way before the UN Charter = Principle of Sovereign Equality of states as the Foundation Principle of the Community. End of the Cold War There was a change of position of many member states in the UN and the security council became useful again because we could move forward without the use of the veto. It was used as a forum where disputes could be solved, where HR could be promoted but mainly a place for an open debate. It was also a place for developing countries to be heard and for formally colonial countries to consider their positions/crimes. 7 International and European Law - BAES S3 => back to homogeneity of values within the international community with the concept of collective interests (environment, human rights, free trade). This concept is also brought to the fore by F.Fukuyama with the end of history because of the absence of a dialectical process when the Berlin Wall fell. It was important to have a forum where to dispute peacefully though many states contested the legal concepts brought by the liberal countries. There were alliances made and the creation of legislation according to the law of treaties (Vienna convention). It also regards regional organizations that were initially designed against the proliferation of arms and produced a system with reduced military accidents and discussions on military exercises and weapon use. Iraq War (1990) Saddam Hussein invaded Kuweit, there was the need to use the UN also since there wasn’t any veto. A series of UN resolutions were formulated on collective security and the question of how to apply the charter was raised. It was the first time that chapter 7 of the UN Charter was invoked. Rwanda and Former Yugoslavia (1994) - challenges of the international community in dealing with ethnic and religious tensions - gradual formation of international criminal law 7. The beginning of the new millennium a) tensions started appearing because of the Balkan conflicts with NATO bombing on Milosevic and Russia siding with Serbia, the UN accepted targeting action and military intervention b) Twin Towers attack: international terrorism and the issue of non state actors c) Iraq War (2003): unilateralist approach of the US, see the consequences for other military operations perpetrated by other states, Bush goes beyond the UN Charter and use force beyond the interest of the US but in the interest of the community -> hegemonic attemps d) economic crisis (2008) e) 2014: Russia claims Crimea, the Council of European Security didn’t prevent the operation though it is supposed to protect national minorities, there was the need for a forum to have discussion from both sides otherwise the worst could happen Concluding remarks -> imperfection of the domestic level are reflected on the international legal level -> IL = common language with which to argue in peaceful conflicts autopoiesis = self generation, maintenance and transformation -> in Cold War, preservation of IL perceived as in the interest of all states for co-existence until cooperation -> public affairs: splitting in different unilateral visions -> transnational business: reliance on homogeneous parameters, increase of centers 8 International and European Law - BAES S3 offering mediation and arbitration for commercial disputes Proof of the existence of international law: -> the court had to use customary law to prove that it existed meanwhile but for that there needs to be coherence in the use and in the interpretation of the law, if the wrongful state denies breaching the law or invokes a diminishing circumstance then there is no denying of the existence of customary law => consolation to prove the existence and the pertinence of international law 9 International and European Law - BAES S3 Lecture 2: SUBJECTS OF INTERNATIONAL LAW 1. Introduction A. International Legal Personality States are considered as international legal persons with rights and obligations. Initially there was a distinction between subjects and objects of IL (no rights in their own capacity). This has been recognized in the case of “Reparations for Injuries” by the UN. In the 1940s, the UN was created along with the State of Israel which created problems in the Middle East with wars with the Arab States. There was then the creation of a special envoy “Bernadotte” from Sweden mediating between Arabs and Israelis. He was eventually shot in Jerusalem in the Israeli area. The question was asked whether the UN can ask for damages to Israel because of the unlawful killing of a civil servant. There was not yet a legal personality of IOs, but a lot of debates in the ICJ that decided to grant the UN a legal personality because of the provisions inside of the UN Charter. International Legal personality = a subject of international law is capable of possessing international rights and duties, and has the capacity to maintain its rights by bringing international claims When having a legal personality, the states also possess formal corollaries: - contribute to forming IL with treaties or the evolution of customary law - enjoy privileges and immunities - access to dispute settlement mechanisms Other entities also have international legal personalities. Ex: the EU signs treaties in its name, individuals can claim damages at the ECHR, multinational undertakings can claim damages for expropriation … There were a lot of fears that the UN would be treated as a state or as a superstate. So there were complementary definitions stating that states enjoy a full legal personality and that other bodies have a more functional personality. This to the extent that it depends on the power of the funding treaty and the needs of the community. “The subjects of law of any legal system are not necessarily identical to their nature or in the extent of their rights, and their nature depends upon the needs of the community” (Reparations for Injuries, ICJ). => functional personality. States are the first players of IL (historically also) as basic subjects and other non state actors like multinational corporations, IOs, etc have a legal personality as much as it is recognized by the states. Though states are the only entities able to file a contentious before the ECJ. B. Fundamental rights and obligations of states In the Draft Declaration on Rights and Duties of States (international law commission), 10 International and European Law - BAES S3 the customary rules of “law of coexistence” are drafted as the foundation of the legal order. This includes the equality of states before the law (all have 1 vote in the UNGA) and the exercise of jurisdiction in good faith to carry out obligations. 2. Elements of Statehood A. General It is an abstract legal concept since it is not material. The definition was first introduced by Georg Jellinek as “Drei Elementen Lehre” being territory, population and gouvernement (Staatsgebiet, Staatsvolk, Staatsgewalt). It was officially recognized in 1933 at the Montevideo Convention: “[t]he state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states” (Article 1 Montevideo Convention on the Rights and Duties of States, December 26, 1933). There is a difference between de facto States governed by themselves and those recognized as states. Being part of the UN is not a decisive element. There are high states in defining what is a state for suits, treaty law, accession to an organization etc. B. Permanent Population There are no rules regarding the size or the composition of the population (ex: micro states as Nauru, Tuvalu etc). The question remains on the Vatican City State having a permanent population as people residing there only stay temporarily. There are also no rules relating to the nationality of the population: “international law leaves it to each state to lay down the rules governing the grant of its own nationality” (ICJ, Nottebohm Case), this is its domaine reservé. Though there is a need for some type of link between the person and the state. States have an obligation of due diligence to minimize the risk of statelessness in case of state succession (ex Yugoslavia, USSR…). Otherwise, we talk of an apatride and no one is responsible to care for the individual. This obligation is present in Art 15 of the Universal Declaration of HR among others. The population of a state is its raison d’être and must promote its well being. This is the social contract of security over the transfer of authority. Homogeneity is required only for the right of peoples to self determination because there is a distinction between people, nation and state. C. Defined Territory A state is first and foremost a territorial entity, which means having control over a piece of territory, large or small, that is an essential prerequisite for statehood. A state cannot be virtual nor in space. A territory includes soil, sub-oil, territorial sea, internal 11 International and European Law - BAES S3 waters and airspace (ex: need agreement to fly over another country). It has to be inhabitable where it exercises territorial duties. Territory = landmass separated from neighbors by external borders There are no rules prescribing minimum area of territory or contiguity: Vatican, Monaco, Malta (size) and Départements d’outre-mer, Kaliningrad (contiguity). There is not always a need for internationally agreed boundaries as some states exist despite claims to parts or the whole of the territory (ex Israel is disputed by some countries). “There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not […]” (ICJ, North Sea Continental Shelf, para. 46). -> A territory is where a state exercises jurisdiction and treats aliens not to harm other states. -> Israel and Albania were in the league of nations and in the UN though they don’t have settled borders but have de facto borders, what matters is that a state controls an identifiable territorial core. D. Effective government There is a requirement for an effective and independent government. This means that the state needs to have authority to express the will of the state and control over its territory and population (law-making, enforcement etc) to provide internal order and stability. Effectiveness = coherent structure of authority, able to administer and regulate the territory it controls There is more flexibility for newly established states such as Bosnia that still have regions controlled by non-state armed groups. Though, if achieved with violence, the new effective state isn’t granted statehood. If there is a political turmoil and coups d’état, there is a choice for stability and therefore no consideration of statehood before the situation is more identifiable. Independence = non-dependence on any other state, but only to international law and the state’s international commitments (a colony is not a state, Gibraltar), it is the only subject to international law obligations and doesn’t depend on foreign allies This can also include the presence of diplomatic relations: represent its interest, engage in discussions and agreements etc. The test of effectiveness and independence was first established in the Aaland islands case (International Committee of Jurists, 1920). Finland didn’t attain statehood until: “a stable political organization has been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops”. 12 International and European Law - BAES S3 E. Independence/Capacity to enter into relations with others It is not clear what it entails but it is independent of recognition from other states (Montevideo Convention). Therefore, this criterion might only require a state to have an administrative ability of entering into relations with another state: ex: Northern Cyprus (regular contacts with UK), Somaliland (foreign missions on its territory, representations abroad), Palestine (representations abroad and membership in various IOs). Independence = initiation of diplomatic relations with other states and exchange of ambassadors, conclusion of treaties that is free from other states control but under the law -> it is not affected by a confederation, a personal union and nor by the ‘de facto’ dependence with trade, loans etc -> in federal states, the local entities are not responsible for breaches of IL themselves though they can sign their own treaties (ex: Belgium is responsible for Flanders if it allocates unlawful state aid) -> some states are not self governed: protectorates, départements d’outre-mer, crown dependencies with strong ties to the Motherland which are all not considered independent but with variable autonomy levels (ex: Nouvelle Calédonie, Greenland, Anguilla) OCTs = overseas countries and territories with a specific relation to the mother state and agreeing to associate with the EU OMRs = outermost regions that are distant geographically but fully member states of the EU 3. How states come into existence A. General There is no longer any terrae nullius as all territory is currently under State sovereignty. In the 2nd half of the 20th century, decolonization led to more than 100 countries joining the UN, mainly from the Global South. There are still 17 colonies or territories unable to set up a state. One cannot create a new state through exploration but by transforming a former state into a new one. B. Right to self determination The right of self determination is an essential principle under the UN Charter (art 1). The General Assembly declared that: Right to self determination = all people have the right to become independent and choose a political system of their own choice without foreign intervention and pursue their economic, social and cultural development. People = group of persons usually homogeneous in terms of language, culture and religion 13 International and European Law - BAES S3 It was also recognized by the ICJ as an essential principle of IL and even as an erga omnes obligation. This cannot work for separatist regions to leave and led to political controversial issues. There is one limitation to it: the uti possidetis principle stating that decolonization should be done in conformity with existing boundaries. Ex: Scotland has a union treaty with the UK though there is a decentralized government of its own but we cannot talk of systematic discrimination and a lack of representation like in the case of colonies. In Kosovo it is considered as such because of discrimination by Serbia for years and no right to education or use their own language. -> it was a kew element during decolonization -> it was specifically applicable to people under domination and exploitation according to the UNGA “Friendly Relation Declaration” and “Declaration on the Granting of Independence to Colonial Countries and Peoples” -> the independence takes place via free association in another state or by the emergence of another political state -> International Trusteeship system since 1945: countries remain under the supervision of another state to prepare for their full independence, 11 states participated to the program and either became independent or associated themselves with the trustee -> a committee on decolonization was established in the UN to track the evolution of non-self governing entities (17 left) C. Mergers or state dissolution Dismembratio = existing states falls apart in two or more states and there are no continuator state (ex: Yugoslavia, USSR) Dissolution = one state splits into 2 or more states with a continuator state (France as continuator state and Algeria as new own state) Merger = two or more states form a new state (by absorption in the other state or establishment of new states, real and personal unions, federations and confederations) Ex: unification of 2 Germany when the BRD absorbed the DDR leading to the enlargement of a member state (no need to apply to be part of the EU), confederation is not a state creation but a group of different States that come together for a number of things they want to do together. A federation is one entity with a federal state and sub-state organs like states, regions, communities. -> in the case of Czechoslovakia, both successor states agreed to apply for the UN membership, Montenegro was considered successor state and Serbia the continuator state, USSR: Russia was agreed to keep the permanent seat, Serbia wanted to be the continuator state of Yugoslavia but it wasn’t accepted 14 International and European Law - BAES S3 D. (Remedial) Succession beyond the colonial context There are different types of successions whether it should be unilateral with the use of the right to self determination that is traditionally in case of decolonization, alien occupation and racist regimes. But it is sometimes problematic for the international community because of too many states being hard to govern. If the succession is done with the agreement of the motherland then the state is usually recognized (ex: Montenegro and Serbia, South Sudan and Sudan). Many states don’t recognize Kosovo though there has been a declaration of independence since 2008 though it doesn’t formulate a violation of international law. States are reluctant to extend the right to self determination because of unwanted precedents (ex Catalunya). The right doesn’t work for unilateral separatist succession, though an unconstitutional declaration of independence can de facto result in a succession. 4. The role of recognition A. Recognition of states Recognition of states = unilateral act whereby a state recognizes a new state as a member of the international community (accepting that it meets the constitutive requirements of a state) and indicates its readiness to treat it as such It is needed in order to start trade and relations. There can be various forms of recognition either explicit or implicit: - declaration to this end by the head of state or foreign minister - opening of diplomatic relations - conclusion of bilateral treaties (not necessarily joint membership in a global IO, Israel not recognized by the Arab countries but all in the UN), it is more implicit and implied - active support of an entity’s application for membership in an IO These forms of recognition can be either express, implied, de facto or de jure. The EU now aims at coordinating recognition by EUMS under the CFSP. Ex: it worked to recognize South Sudan but it failed for Kosovo. It is a sovereign power to decide on the recognition and one state cannot be forced => discretionary act. -> it is an act inspired by political considerations with legal consequences -> mutual participation in an IO or exchange cannot be considered as recognition -> it is a discreet act of a state and never an obligation -> there are rules in the recognition of states: premature recognition is seen as unlawful -> there are high stakes to the recognition such as enjoying immunity before a 3rd country, ability to bring a claim before the court etc -> domestic courts often give effects to acts and laws of public authorities from unrecognized states when it comes to daily life (marriage, birth etc), Namibia principle = duty to non recognition because of a violation of jus cogens 15 International and European Law - BAES S3 does not apply to unavoidable relations of individuals There are some limitations to recognizing states in line with ex injuria jus non oritur, the recognition cannot create any legal effect when: 1. Violation of jus cogens: creation of a state violates peremptory norms of the general international law ex: Rhodesia was an attempt to establish the state based on a system of arpartheid 2. Use of force: acquisition of territory through conquest, when territorial entity tries to secede through use of force by third State Iraqi invasion of Kuweit, it was then tolerated for a US mandate to push back using force (sand storm operation), Northern Cyprus - Turkish invasion “The Community and its MS will not recognize entities that are the result of aggression” Stimson doctrine = non recognition after illegal use of force In these cases, there is the obligation of non-recognition of the state. It raises the question of what it means internationally because it used to be considered a condition sine qua non to be a state under IL but it is a problem when some states recognize another state and some other don’t. There are two theories on the nature of recognition. Constitutive theory = recognition by other states creates new state and endows it with legal personality, this implies that unrecognized state can have no rights and obligations in international law, it doesn’t work in case of partial recognition Declaratory theory = recognition with mere acceptance by states of an already existing situation, political act recognizing pre-existing state of affairs, it implies that a state may exist without being recognized which has practical consequences (Cyprus cannot function as a state) -> Sometimes, countries can engage with unrecognized entities for practical reasons -> withholding recognition doesn’t allow to ignore the customary rights and erga omnes obligations of an entity that is effectively a state. B. Recognition of governments It is relevant because it answers who gets immunity, who can sign treaties, who can represent the state in an IO… There is a problem when there are 2 groups fighting for the government or when the government that came to power used military force. Recognition of government = executive of a third state takes public position to consider and recognize one group as the sole competent to represent the state, de facto = recognition of a de facto control of the country -> in practice it is rarely done because it is politically embarrassing to recognize some 16 International and European Law - BAES S3 regimes because it is seen as an approval of that regime and some previous declarations were more political than legal 5. Acquisition of territory A. General A state might have a defined territory but sometimes there remains conflicts on some entities (ex Senkaku island between China and Japan). One principle is that if 2 states are separated by water, the border is the median between both river banks. Initially States could acquire territory with property law, marriage and peace treaties but in the law of territory now, the acquisition but must assessed as the rules were at the time of the acquisition = intemporal law principle B. Acquisition of original title This regards the acquisition of a territory belonging to no one for instance. It follows the first come first served principle with effective occupation. There are two elements to fulfill for it: objective element: corpus occupendi which is the control over the land with the state tools subjective element animus occupendi which is the intentional display of power and authority over a territory and autonomy of a state However today there is no more void territory except for residual accumulation over a coastline. Acquisition with occupation is mainly to assess historical colonial claims based on the terra nullius used to also define uncivilized parts of the world and validate European colonialism. Now they are protected because tribes are considered as organizations. C. Derivative Acquisition Prescription/usucapio = a state gradually acquires the title of a territory pursuant to the usurpation of another state's sovereignty The usurping state must control that territory for some time, openly and with peace. If the state doesn’t reclame it in a declaration or similar tool, there is acquisition. Also one state can make a secession and give/sell a territory (ex France and Louisiana). 6. State Sucession Succession = replacement of one state (successor state) by another (predecessor state) in the responsibility for the international relations of the territory 17 International and European Law - BAES S3 Ex: USSR into the Soviet Republics, Yugoslavia into Balkan states and entities like Montenegro and Kosovo. There is an essential element of discontinuity because the successor state is not the continuation of the predecessor state, it has its own international legal personality. It is usually very messy because it is linked with a lot of political tension. It is one of the most confusing areas of international law. There aren’t official sets of rules though there are attempts to create common rules but the Vienna Convention of 1978 on the question failed because it was only rarely ratified. There are 2 modes of state succession, either partial (we talk about a continuator state) or universal. Universal succession = the original state disappears completely and a new smaller state comes into play Partial succession = the predecessor state exists in a smaller version and a new one exists, the predecessor state is then called a continuator state In case of a partial succession, the question of membership to treaties and IOs for the newly existing state is asked. Ex: if Scotland breaks out, it must ask to join the treaties and IOs. The recognition of a state can also be influenced by the condition of the succession, if it is agreed with the motherland then it is usually easier. To join the EU for instance there needs to be a consensual decision from all EU member states and the parliament. -> many solutions are ad hoc and treaty related (German unification etc) -> sometimes laws are disputed because they are considered as advantaging the colonial state A. Relation between successor state and individuals One key question is the nationality of the natural persons. Also, we must consider the property rights acquired by individuals between applying the “doctrine of acquired rights” and the idea of permanent sovereignty over natural wealth and resources. Doctrine of acquired rights = in the aftermath of the succession, the individuals and entities having acquired goods before the succession keep their properties even if they are in the successor state This is often contested because it is thought that the state has sovereignty over what is to be done with goods. It is against the concept of consensualism and it is also an economic burden for the new states because though they are allowed to expropriate, there is a duty of compensation. Ex: upon creation of the USSR, the regime wanted to abolish the property. During decolonization, it is a problem when the colonial state keeps colonies of the previous colony, the question of who gets the properties, companies and lands. Colonies reject the theory of acquired rights and advocate for allowed expropriation. 18 International and European Law - BAES S3 The successor state cannot decide alone who gets their own nationality as people have the right to at least one nationality of the predecessor/successor state. There is a customary presumption of nationality based on the residence. B. Relation between successor and predecessor state In this case, the legal system of the latter disappears and is replaced by that of the former. The question is raised on the topic of foreign debts, various hypotheses are contained in the 1983 Vienna Convention. The former state is however free to retain former legislation and it gets the property of the previous state for both movable and immovable assets. In case of decolonization, there is no transfer of debts but in case of separation and dissolution there is an equitable transfer of debts. C. Treaty relation Treaties regarding borders are kept according to the uti possidetis principle, res transit cum suo onere (the thing passes with its burden). Some political treaties remain like those about permanent seats in the UN, human rights treaties and disarmament promises. Treaties in case of decolonization follow a tabula rasa principle. This regards membership is IOs, treaties, international responsibility… In cases of friendship, alliances and neutrality, the successor is not bound by them. Other treaties depend on the mode of transfer, usually with new independent states there is a tabula rasa applying, some can stay if the new state consents to it. In case of a dismembratio, there is an automatic succession. In case of mergers, there is a succession unless agreed otherwise and if there is a change of boundaries then the treaty follows the change. For HR treaties, states are automatically bound regardless of a confirming declaration. D. Membership of IOs - In case of partial succession -> the continuator state can retain membership - In case of decolonization, dismenbratio and other succession -> the new state must ask membership - In case of no predecessor -> no membership - In case of a merger -> new states keeps the membership if one of the previous states had it 19 International and European Law - BAES S3 E. International responsibility Only the predecessor state remains responsible for the internationally wrongful acts. The successor state cannot however exercise a right of diplomatic protection on a national that wasn’t theirs yet. Compensation for violations is personal, there is no inheritance of rights and obligations. 7. Contested States There are officially 10 states not recognized: 1. Palestine 6. Sahrawi Arab Republic 2. North Cyprus 7. Kosovo 3. South Osetia 8. Transistria 4. Abkhazia 9. Nagorno Karabakh 5. Republic of China, Taïwan 10. Somaliland Sometimes they try to be a State with an effective control over the territories that they claim as their own, there is an organized form of political leadership, they are able to provide governance and governmental services (health, education…), they view themselves as capable of entering into relations with other states and actively seek international recognition but are unable to obtain it. Ex: Georgia wants to exercise full authority but there are 2 breakaway regions with their own authorities that are often assisted by Russia. If no one can recognize them then they can only rely on some partners but it is a really complex situation. There are not only perfect states but also de facto states and regimes that are often self-proclaimed but not states because of incomplete or nonexistent recognition. Sometimes they have all elements to be a state but are not independent enough to be a state. 20 International and European Law - BAES S3 Lecture 3: SUBJECTS OF INTERNATIONAL LAW 1. International organizations as subjects of international law A. Recognition of international legal personality of IOs International organization = entity created by a treaty to carry out the goals written in the treaty, members are often states but can also be IOs ex: WTO (1995) created also with the participation of the EU, UN with broad missions and mandates, IO of wine and vine is more limited in its scope, IO for animal health … Some contain almost only states like the UN, the WHO and some are local or regional like the EU or the Commission for Rhine protection. They also have different types of actions such as making regulations for the Security Council but also making treaties etc. Some are more like forums with limited powers. IOs are very diverse and variant but share some common features and powers like their international legal personality. IOs are quite recent, starting with the League of Nations with the idea of giving them legal personalities with rights and powers. These personalities are given in order for the IOs to carry out a mission independently of states because they must be able to act without the permission of all states and this requires a legal personality. IOs became a success only after WW2 with the UN. UN Charter: - article 104: provision of legal capacities to exercise its functions and fulfill its purpose - article 105: provision of immunities and privileges for the fulfillment of its purposes, including the representatives of the members and the officials of the organization to ensure independence in their exercise for the UN The UN requires each member to recognize the legal personality of it on its domestic level (not internationally) because the UN acts on state territory since it doesn’t have its own territory and this requires the recognition of the UN in the domestic legal systems. The international personality of IOs was only recognized for the first time a few years later in the Advisory Opinion of the ICJ. This decision was expandable to most IOs. Reparation for Injuries suffered in the service of the UN, 11 April 1949 -> the conclusion of conventions to which the UN is party confirms the character of it independently of its members because they provide rights and obligations between the parties and the IO and it wouldn’t be possible if the IO didn’t have an international legal personality -> it is a political body employing political means to achieve international cooperation -> the decision is based on an interpretation of intentions of parties when creating the UN because the founding treaty didn’t include provisions on its legal personality => UN is an international person which doesn’t mean it is a state and has the same rights 21 International and European Law - BAES S3 and duties as those of a state but it is capable of possessing international rights and duties and has capacity to maintain its rights by bringing international claims TEU, article 47: The Union shall have a legal personality It isn’t precised if it is an international or domestic personality but it is interpreted as both as the advisory opinion works as a precedent event without provisions in the founding treaties. B. Scope of the international legal personality and powers of IOs The scopes of IOs are written in the founding treaties and define the IOs. They follow a principle of speciality so their power differs from one IO to the other. Indeed they depend on the IO’s goals and purposes and only a few IOs have large power (ex: regulate the conduct of MS = EU, operational power and right to act on a territory). Principle of speciality = an IO cannot exceed the framework of its mission Some powers are recognized to all IOs: 1. treaty making power: with MS or other IOs, it is essential for permanent IOs to make treaties with countries where they have offices but it follows the principle of speciality (cannot be a treaty beyond a scope) 2. Passive and active legislation: establish relations with a mission of MS who want to take part = diplomatic missions with diplomats between the IO and MS, in these missions the representatives don’t work with the government of other states but with the IO itself. It is very common between UN institutions or for the Council of Europe 3. Right to seek reparation for damage and responsibility for unlawful acts 4. Power to have a budget and vote on it: essential to have activities and use funds, decisions need to be taken by the IO itself otherwise it is not independent because another entity decides for them Non acceptance of the ICJ jurisdiction doesn’t mean that the concerned states don’t accept the ICJ advisory opinions. 2. Private persons (individuals, corporations) as subjects of IL A. The recognition of the international legal personality of private persons Until the 20th century, private persons didn’t have rights in IL (ex: corporations, individuals etc) but were only considered as subjects of IL (ex: treaty could decide to give privileges and rights to individuals). Post WW1, with the Christian States in Europe context, the Advisory Opinion of the ICJ gave legal personality to private persons. ICJ, Jurisdiction of the Courts of Danzig, Advisory Opinion, 8 April 1927 -> there was an agreement concluded between Poland and Danzig (city state under protection of the League of Nations) about trains crossing the territories, the Opinion of 22 International and European Law - BAES S3 the ICJ was requested upon a labor dispute -> the question was first brought before the Polish court with the claimant asking to apply to agreement to solve the problem which the court refused to do on the grounds that the status of train employees was governed by polish law and didn’t allow them to make a claim (it is the city that needs to make the claim to be accepted) -> the ICJ (created under the auspices of the LON) rejected this argument because the agreement gave rise to rights and obligations to individuals in its intentions enforceable by national courts (normally international agreements don’t confer rights to individuals). It wasn’t clear whether it recognized the legal personality or if it is up to the national court to create a law giving rights and obligations to individuals. -> ambiguity solves at the end of the opinion stating that individuals have rights against the company based on the agreement This Opinion gave rights to individuals against government administrations according to treaties, contracts and agreements making them subjects of IL. However it became a reality only 2 decades later with the emergence of international HR law. Universal Declaration of Human Rights, 1948 -> list of rights and freedoms to which everyone is entitled without distinction of any kind (race, color, sex, language, religion, political opinions etc). No distinction can be done on the political, jurisdictional or international status of the country to which the person belongs. - right to life, liberty, security - no one shall be the subject of slavery or servitude - no one shall be the subject of torture, inhuman or degrading treatment/punishment - right to be recognized everywhere as a person before the law - equality before the law and protection against discrimination - right to effective remedy by the competent national tribunals - no one shall be the subject of arbitrary arrest, detention or exile Now individuals have rights in the international and domestic order which is a landmark in IL. The Declaration is a soft law text but was quickly incorporated into treaties such as the 1950 HR declaration in the EU taking up the EDHR and in the International Covenant on Civil and Political Rights (1966) and the one of Social and Cultural rights. Soft law = by opposition to hard law it is not mandatory and binding International Covenant on Civil and Political Rights, 1966 -> party states recognize the rights of the covenant and in case of violations they engage themselves to finding efficient remedy to them which is to be determined by a competent judicial, administrative or legislative authority -> parties take the necessary steps to adopt laws/measures necessary to give effect to the rights recognized in the document -> it takes up the rights from the declaration and provides more details in some areas (ex no forced labor under which conditions) 23 International and European Law - BAES S3 These Covenants and treaties are the basis of the rights but also help developing the personality of individuals. They are given the right to seek redress and bring an action before a court. It is particularly the case for humanitarian laws designed to protect individuals. Ex: In consular relations, the nationals can notify their consulate that they were arrested which is codified in the Vienna Convention. The legal personalities are also recognized for companies given a capacity to act. Ex: International investment law, commercial law where investors have substantial rights and can seek damages in front of an international tribunal with IL. Though it is always less extensive than states (no treaty making power) but not as limited as before. B. International obligations of private persons There are obligations following the principle of reciprocity with rights. The obligations are present in IL and in EU law as well with such conventions regarding war crimes, genocides, crimes against humanity that are prohibited and perturbators can be trialed. ICC Statue, 1998 -> establishment of an International Criminal Court that can judge and condemn an individual for the mentioned crimes as complementary to national criminal jurisdictions -> it confirms that private persons have obligations and that IL obliges private persons to have certain behaviors which if unlawful lead to the engagement of one’s responsibility -> regards the following crimes: genocide, crimes against humanity, war crimes, aggression It is not only for international criminal law but also with the law of the sea. Ex: trial in 2015 showing the obligation on private persons to respect rules on how to use the sea especially with regards to the conservation of coastal sites when fishing in a foreign territorial sea (sovereignty of the state). Lecture 4: SOURCES OF INTERNATIONAL LAW 1. Customary law, general principles of law 24 International and European Law - BAES S3 There are three functions of a legal system: law making, law assessing and law enforcing which are institutionalized and centralized on a domestic level. It is not the same with IL and the sources are characterized by a participatory trait. Domestically, the sources are regulated by the constitutional principles to make the legal order. Sources can be procedures of the Parliament that enact legislations based on different majorities (process defined in the constitution). In England there is no constitution written though there are basic principles confirmed by practice. ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: - international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; - international custom, as evidence of a general practice accepted as law; - the general principles of law recognized by civilized nations; - [...] 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.” (Article 38(1) of the Stature of the International Court of Justice) There is a conceptual hierarchy with the constitutional principles of international law and then the principles of pacta sunt servanda and consuetudo sunt servanda meaning that both customs and agreements have to be respected as laws. By convention, Article 38(1) is used as a starting point for the study of the sources of international law. It is however not the list of (all) sources of contemporary international law. Customary law is the oldest and for a long time the main source of international law. Particularly useful in a legal order regulating a few matters with few, all very similar, legal subjects and lacking a centralized rule-making authority. It is formed when a generally adopted conduct leads to expectations of reciprocity. Today its centrality has diminished. Custom emerges from the interaction between two elements: practice (objective element) and opinio juris sive necessitatis (subjective element) corresponding to “accepted as law”. General practice = material facts, the actual behavior of states and their bodies (legislative, judicial, executive, including territorial administration, diplomatic), both within the state (internal practice) and in international relations/fora (external practice) Ex: declaration, legislation, case law Resolutions of international organizations (whether binding or not) are of particular importance to this purpose). Opinio juris = the belief by a state that behaved in a certain way that it was under a legal obligation or had a legal right to act that way Sive necessitatis = the belief by a state that, even if its behavior is not required by a legal obligation, or that it does not have a legal right to act in a certain way, that behavior should be required as mandatory, or it should have that right The presence of this subjective element distinguishes customs (legally binding) from usages (perceived as binding or at least due by a society) and habits (perceived as due by an 25 International and European Law - BAES S3 individual). How does one ascertain the existence of the subjective element? ➜ practice (the two elements are, in fact, inseparable). Opinio juris can also be inferred from absence of conduct (negative practice) manifesting a tacit consent (acquiescence). Evolution of IL = evolution of the means of creating rules that molds the constraining of state behaviors ex: prohibition on the use of force, no taxation on certain areas, no spying on other state States started to have claims and exercise them because other states accepted the rules. The creation of a right involved the creation of its reciprocal obligation. Ex: law of the sea with fishing rights in the EEZ and other states have the corresponding obligation to not make claims on it (material / substantive law). Some rules are not about what to do or what not to do but about how to do something (no rules of conduct but procedural law). 2. Characteristics of custom Form: unwritten Scope: general (unless it is a particular custom) ➜ applies to all states (even those who did not ‘participate’ in creating it) ➜ the relevant practice/opinio juris is that of the ‘great majority of the international community’ Structure: bilateral, except when the rule is ‘erga omnes’ Content: emerges, consolidates, evolves over time (➜ no ‘instantaneous’ custom), general (flexible but ambiguous) ➜ usually needs clarification (codification conventions and/or judicial decisions), can change following a sufficient number of violations (practice) that manifest opinio juris and meet with the (normally tacit) acceptance of the international community, derogable, except when jus cogens (qualified opinio juris) It can be written if consensual or confirmed/stated in a declaration for instance (by a representative). But it is usually unnecessary to have written law because it is needless to say and repeat the rules that are widely accepted by the community. It used to be more clear in the past because the community was made of similar countries also culturally (values). In 1920, the International Court intended to confirm customary international law as it had become incertain in a newly multipolar world. If all countries agree and one doesn’t, there is no customary law. The more states follow, the less time is needed to draw customs. Now it is accelerated with the UN GA as a forum of discussion in society to change the law eventually. A) Particular customary law Can a custom develop between and apply only to certain states? Yes and they are called particular customs (regional/bilateral). Though the standard of proof is high (representing a deviation from a general custom, it must be shown that each individual state has accepted it as binding). 26 International and European Law - BAES S3 ‘Where therefore the Court finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules’ (Right of Passage over Indian Territory (Portugal v. India), Judgment of 12 April 1960, p. 44). B) Persistent objector? Can a state escape compliance with a general custom? Generally no. A state may depart from the fulfillment of a general custom only by interacting with another state, by concluding a treaty or by creating a particular custom. There is a dilemma of the so-called persistent objector. Persistent objector = A state which, in the course of the time in which a custom has been developed, has always adopted conduct contrary to that custom. ‘In any event the... rule [on the delimitation of territorial waters] would appear to be inapplicable as against Norway inasmuch as she had always opposed any attempt to apply it to the Norwegian coast’ (Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, p. 131). It is a rule of general international law with particular content (it establishes a rule that applies to a specific state in relation to all others). Confirmed by the fact that the rules are ‘enforceable as against all states’, not only to those whose interests are directly affected (Fisheries, p. 138). 3. General principles Article 38(1)(c): ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply the general principles of law recognized by civilized nations’ ‘[General] principles’ and not ‘rules’ because they do not prescribe specific conducts, but are of a more general nature and provide the direction for state conduct. When the content of a rule is very generic and abstract, that rule can also be understood as a principle but the distinction blurs the definitions. ‘General [principles] ➜ ‘[T]hose principles of law, private and public, which contemplation of the legal experience of civilized nations leads one to regard as obvious maxims of jurisprudence of a general and fundamental character (...) a comparison, generalization and synthesis of rules of law in its various branches – private and public, constitutional, administrative, and procedural – common to various systems of national law’, Hersch Lauterpacht, International Law Being the Collected Papers of Hersch Lauterpacht, (edited by Elihu Lauterpacht, vol I, CUP 1970), 74. 27 International and European Law - BAES S3 Which law? In the 1920s, reference was probably to domestic legal orders. From 1945 (as the chapeau of Article 38(1) was amended to include mention to the fact that the Court decides ‘in accordance with international law’), reference must be intended to general principles of international law. This entails that not all municipal general principles of law necessarily apply in international law just because they are generally recognised in domestic legal systems; only those suitable for application to interstate relations and disputes apply in international law. ‘In [the field of corporate law,] international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field. This does not necessarily imply drawing any analogy between its own institutions and those of municipal law, nor does it amount to making rules of international law dependent upon categories of municipal law’, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) Judgment of 5 February 1970, 33. What are ‘civilized nations’? In the 1920s, the Advisory Committee for the drafting of the PCIJ Statute consisted of 11 jurists (7 European, 1 American, 2 Latin American, 1 Japanese) leading to a colonialist undertone: ‘The discrimination between civilized nations and uncivilized nations, which was unknown to the founding fathers of international law … is the legacy of the period, now passed away, of colonialism’, Judge Ammoun, Separate Opinion, p. 132 (North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judgment of 20 February 1969). In 1945, it was proposed to change the wording, but without success. The interpretation of Article 38(1)(c) is now ‘updated’ to include as ‘civilized’ those states that comply with minimum standards of human rights protection. A) Examples and categories of general principles Fundamental legal conceptions incapable of creating specific obligations and which relate to the fulfilling of existing obligations ○ e.g.: good faith, equity, reasonableness, proportionality, humanity. ‘Constitutional rules’ of international la ○ e.g.: prohibition on the use of force for settling international disputes; prohibition of interfering in the internal affairs of other states; consensual nature of the sources of international law and the jurisdiction of international courts and tribunals; jurisdictional immunity of states; pacta sunt servanda, consuetudo est servanda, etc. Fundamental legal conceptions within a given branch or subset of norms of international law ○ e.g.: obligation to provide reparation for violation of international law (international responsibility of states); a judicial decision enjoys the effects of res judicata (international procedural law); a state cannot legitimately use 28 International and European Law - BAES S3 its territory to harm the interests of neighboring states (sic utere tuo, ut neminem laedas) (esp international environmental law), etc. Complex normative phenomena: acquiescence, estoppel. B) What is the function of general principles? They were introduced under Article 38(c) of the Statute of the Permanent Court of International Justice to provide the judge with the tools to avoid a non-liquet. In practice, a number of functions: 1. Corrective ➜ they ‘direct’ states’ conduct to the extent that they might be recognized by the international community for the purpose of invalidating or forcing revision in ordinary norms of treaty or custom in conflict with them ; 2. Interpretive ➜ they are used to adjust the interpretation of an existing rule to the specific case (technically, there is not a lacuna/non-liquet); 3. Applicative (partially gap-filling) ➜ they are used to adjust the application of an existing rule to a specific case; 4. Integrative (gap-filling)? ➜ they are used to regulate a specific case where there is no applicable rule (idea of ‘principle’ derived from Dworkin and Lauterpacht’s conception of the Herculean Judge who resorts to principles to solve all ‘hard cases’). 3 and especially 4 remain controversial (international judges cannot fill gaps by creating international law). Source of Law and sources of international law General The sources of law must be recognised by the community as stating the legal rules in an authoritative manner. These sources are legal rules themselves about who and how legal predictions come about. Constitutional rules = rules which identify the sources of law, peculiar to each legal order The making of rules on the international level is different than on the domestic level as it is participatory according to the principle of sovereignty, equality and independence of states (which means no superior entity making the law so all on an equal footing). This law making is done through agreements and custom as primary sources of international law. Opinion juris = an attitude conforms to the law Opinion necessitatis = an attitude is ought to be the law Civil law Common law 29 International and European Law - BAES S3 Doctrine of the precedent: lower Law is found in civil and penal codes and courts courts are bound by higher courts to are not bound by precedents but bear persuasive follow their decisions in similar cases authority under the jurisprudence constante (stare decisis principle) principle. Legal positivism. Jurisprudence, a parallel between domestic and international level International law reflects the increased diffusion of the legal positivist approach since the 20th century. Statutory law making bodies are introduced in the sake of clarity and precision and to be able to change and adapt to societies more easily. It is much more difficult to interpret the law based on unwritten customs and values of a society knowing that they are more and more diverse and fragmented. The international level reflects the imperfections and instability of the domestic legal systems. The law is usually created after a process of negotiations and results in a sort of compromise between diverse views (example: Assemblée Nationale) so their drafting is often unclear and subject of subjective interpretations as everyone sees their own meaning in it. When we end up with a vague law and complementary laws to explain the problem creating more interpretations → the judiciary has a bigger role of interpretation. In International law, the interpretation of the law is usually a self interpretation by states, explaining the important linguistic dimension as a means of communication for peaceful settlement. Milestone: Rio Grande Agreement introducing the equitable and reasonable utilization rule. ⇒Agreements produce new rules and settle disputes at the same time. Also making the law amounts to changing the law as everything is already regulated either by a general statement or a detailed code. 1. The absence of legislation in international law One key difference with domestic legislation is the absence of an institutional legislator in international law. There is no compulsory jurisdiction nor a body that makes the law applying to all subjects under the legal system. ⇒ Largely decentralized and scarcely institutionalized nature of the international community because of the sovereign equality principle and independence of states (Westphalian peace). UN Resolutions UN GENERAL ASSEMBLY : permanent group with all states of the community where they can discuss all topics under international law (space, terrorism, sea, health etc). They also create resolutions with hortatory effects (recommendations) thus no source of law. However they have help identify customary law especially because of their travaux préparatoires consisting of government statements. ⇒ resolutions are neither custom nor agreements. Resolutions and similar diplomatic instruments can be used in the formation of a new custom as the evidence of the opinio juris of the states in favor. UN Conventions are usually preceded by 30 International and European Law - BAES S3 resolutions as they are a sort of diplomatic test to undertake engagement in a non legally binding form (engagement difficult to refuse once it comes to signing a binding agreement). The ILC The GA is taken to encourage development of international law and codification leading to the creation of the ILC as an independent body of experts elaborating studies in the form of draft articles to consolidate international law ⇒ one of the most influential bodies in the lawmaking process. They create a wide spectrum of soft law instruments (draft articles, model rules, guidelines, principles…). They are usually considered as authoritative and used in diplomatic notes and before international tribunals as it has a recognised legal expertise. The result is also created through the negotiations with the Sith Committee of the GA. The scope addressed by the ILC has recently widened: initially it handles jus cogens and general principles of law but tends to focus on environmental law and procedural law (in armed conflict, atmosphere, production of evidence…). ⇒ boosting role of the GA but no legislation because it is not mandated by the UN Charter to pass statutory law and the process of facilitating customary law and treaty law making are in the hands of the states before anything else. 2. Article 38 of the Statute of the International Court of Justice The sources of law are listed in this article of the ICJ Statute as part of the UN Charter. The Court shall apply: 1. international conventions establishing rules expressly recognised by the contesting states 2. international custom as evidence of general practice accepted as law 3. general principles of law recognised by civilised nations 4. judicial decisions and teachings of highly qualified publicists as determination of rules of law It reflects the legal positivistic approach that is consent based as all sources of the law need to be accepted and recognised by the states to be qualified as international law. This statement is very vague to leave room for adaptation and interpretation by the courts. 3. International agreements. Introductory qualifications. The issues discussed in international rules are of key relevance also for domestic legal practice as international agreements will be implemented on a national level and this interpreted and applied by domestic courts. Pacta sunt servanda = international agreements produce international rights and obligations for the legal subjects that are parties to them This concept is articulated in the body of treaty law codified in the VCLT. 31 International and European Law - BAES S3 VCLT = (Vienna Convention of the Law of Treaties) which codifies inter alia the conclusion, validity or nullity, duration, scope of application and interpretation of international written agreements International agreements can also be named conventions, treaties, protocols, statutes, charters, exchanges of notes… International agreement = expression of consent by two or more international legal subjects over the regulation of the subject-matter which constitutes the substantive scope of the agreement There is a distinction between international agreements and unilateral declarations as sources of rights and obligations and with the role of good faith principles. Unilateral promises are sources of obligations for the state if they make the unilateral statement public and announce the commitments but it will not produce obligations for any other parties. Good faith principle = legitimate expectation of consistency with one’s public statement, a party may not invoke the provisions of its internal law as justification to its failure to perform a treaty Pacta tertiis neque nocent neque invant = international agreements are binding only on its parties This means that a treaty doesn’t create any obligations or rights to a 3rd party without its consent. Sometimes it can be that a treaty wants to give rights to a country that isn’t party of the treaty but its consent is still needed for the treaty to provide rights. Initially customary law was the main source of international law based on competition and freedom and treaty law was only secondary with bilateral treaties simply confirming customary rights and obligations. The rise of treaty law happened after WW2 and during the Cold War because of the newly multipolar world. New values had to be taken into account also with regards to creating new customary laws. There was also the rise of multilateral treaties such as constituent treaties of intergovernmental organizations. There were also major codification conventions with both the participation of the North and South of the world. These gave special protection to collective interests with convents on human rights for instance. Two tier obligations = obligations that operate at the traditional bilateral level with regard to transboundary issues and obligations that protect indivisible collective interests (erga omnes partes character, one owed to all the states parties) Bilateral treaties are still widely used for a wide range of matters (taxation, extradition etc) and sometimes multilateral treaties even require an implementation on the bilateral level. 3.1 Treaty law Negotiations, adoption, manifestation of consent and entry into force Treaties start with negotiations between state officials and delegations that are competent in the matter. In principle, the unanimity of negotiating states is required for the adoption of the text. In the 32 International and European Law - BAES S3 context of an international conference, the vote of 2/3 of the parties is enough though the practice is to obtain consensus. An international agreement creates rights and obligations only upon its entry into force only for the states for which it enters into force. The adoption of a text and its entry into force are not to be confused as when the text is adopted it means that we don’t modify it further and submit it to the respective authorities. The entry into force is based on the consent of the states to be bound by the treaty. The VCLT is of a non prescriptive nature so it allows total freedom to the states to regulate the forms of expression of their own consent to be bound. This is so because of the fear of decolonized and developing countries to otherwise be bound against their will to treaties. The preferred means of giving consent is through ratification reflecting the constitutional need of parliamentary control over the foreign policy of the government. Bilateral treaties enter into force when both countries gave their consent and multilateral agreements enter into force when there is a minimum of ratification. For instance the VCLT has been adopted in 1969 but not all countries have ratified it because of specific provisions of the Convention but use its content in diplomatic exchanges as reflecting customary law. Before the entry into force with ratification, and according to the principle of good faith, the states adopt a conduct in light of the object and purpose of the treaty. This is so because the signing of the treaty before ratification is an indication of the intent by the signatory → legitimate expectation for the state not to act against the provisions of the treaty. Invalidity, termination and suspension of treaties Causes of invalidity = manifest violation the internal constitutional rules on conclusions of treaties, error, fraud, corruption, coercion of a state representative or state itself The VCLT has a restrictive approach with the invalidity, termination and suspension rules of treaties to enhance stability in international law. 1. Violation of international constitutional rules (reflects the pacta sunt servanta principle) 1. if the violation is manifest and concerned a rule of fundamental importance (ex constitutional rule) 2. manifest if it is evident to any state conducting itself in good faith and with a normal manner A cause of invalidity of great significance (ex: protection of collective interest) is called a peremptory rule (jus cogens). There is a lack of concrete guidance to identify substantive IL with peremptory character. Post-adoption of the VCLT, examples of jus cogens rules were found in the ban on genocide, aggression, slavery or torture. The VCLT tries to adjust IL of adjudicative dispute settlement with the addition of compulsory jurisdiction regarding claims of invalidity: application to ICJ for a decision unless common consent to arbitration. → Problem with Article 66: can only be brought up by one party 33 International and European Law - BAES S3 The duration of treaties may be subject to termination or suspension internally, referring to the duration of the treaty included in the text; and externally (denunciation or withdrawal with a period of notice). Most treaties which include means and dates of termination also include the time during which provision will remain in force after the termination called sunset clauses. → usually a 10-year extension after termination (in the case of BIT). Duration of treaties to external grounds of termination, i.e. material breach of the treaty by one of the parties, warranting reciprocal conduct by the other state parties (may be complemented based on the law of the State) are contained in article 60 of VCLT. One principle of treaty law is the fundamental change of circumstances (Article 62 VCLT) 4 Basic conditions to be cumulatively met to justify diplomatic action of unilateral termination of the treaty: - The change has to be assessed with respect to the circumstances at the time of the conclusion of the treaty. - Objective political changes might be relevant, but good faith prevents governmental changes from being validly invoked as a fundamental change. - Change must not have been foreseeable by the parties at the time when the treaty was concluded - The circumstances subject to the change invoked must have constituted an essential basis of the consent of the parties. Another ground for termination of a treaty (Article 61 VLCT) consists of the supervening impossibility of performance. May be validly invoked on the basis or destruction of an object indispensable for the execution of the treaty. Reservations and treaty interpretation The consent to be bound by an agreement may be affected by reservations; when a state wants to become a member of a treaty, but without certain provisions. This is only applied to multilateral agreements. In function of states’ reactions ( Articles 19-23), it may produce different legal relations. As treaties are often a result of compromise, the text is seldom clear enough to not require interpretation. → Treaty interpretation governed by customary law (Articles 31-33 VCLT). It follows a combination of literal or textual approach, the intentions of the parties approach and the purposive or teleological approach. The balance between the three must be found in the contextual approach. Based on the relevance of IL at the municipal level, issues of treaty interpretation concern domestic civil servants. 4. International agreements. Introductory qualifications. Two constituent elements of custom: 1. Widespread practice consistently repeated over time (diuturnitas) 2. The consciousness by state organs that such practice conforms to a legally binding rule or to what ought to be a legal rule (opinio juris de sive necessitatis) Natural law approach to IL making was the preferred one if the international community of states had a high degree of social and cultural homogeneity among elites. I.e. Great Powers in Europe 34 International and European Law - BAES S3 Remnant of natural law in customary law is the general scope of application with respect to its subjects (diff. from Treaty Law). State Practice = diplomatic practice, legislative, administrative, and judicial practice + operational conduct. The role of precedents Special consideration is given to the role of international case law in the international customary-making process. International judicial decisions do not emanate from the attitude of the states and are legally binding for the disputing parties only. → stare decisis principle does not apply in IL 5. General principles of law General principles of law are the third source of IL (Article 38, 1, c). Singled out to address the concern that the Court couldn’t be able to settle a dispute due to lack of any pertinent rule discernible from any applicable international Treaty: non liquet. General principles fulfill a gap-filling function in the legal system, used widely in international case law. Non liquet = the court cannot decide on a case based on a gap in the law General principles coincide with structural principles of sovereign equality with its “Interpretative” (Article 31) and the “corrective” functions. Not all municipal general principles of law apply in IL; only those suitable for application to interstate relations and disputes apply. → transmigrate into IL under the label “general principles of international law” → change its indicative aspect passing to its content. General principles, and rules, are both of structural and substantive legal character. 6. Relationship between the sources of international law International legal rules stemming from different courses can support and/or complement one another. In other cases, new ones are mainly created to develop new laws. In principle, an international treaty can derogate from an international customary rule as much as a new custom may derogate from a previous treaty. Relationship of compatibility The possibility of compatibility between obligations is to be tested by looking at the content of the rules in question. If the test is positive, both norms are applied in conjunction. This is the relationship between codification conventions and customary law. The main concern arises with codification conventions, i.e. those by the ILC, but also those by treaties. (multilateral ones !!) 3 circumstances in which a treaty rule may be binding even on a non-state party, insofar as it reflects an international custom: 35 International and European Law - BAES S3 when the rule in question was, at the time of the adoption of the treaty from which it stemmed, declaratory of a pre-existent international custom when the rule in question, through the process of its elaboration and adoption of the treaty in point catalysed the crystallisation of a custom whose process of formation had reached an advanced stage prior to the negotiation of the treaty in point when the rule in question, since the adoption, or even entry into force, of the treaty to which it belongs, has promoted sufficiently extensive practice and opinio juris conforming to it so as to generate a new custom. Relationship of Conflict When conflict emerges between rules stemming from sources of the same level, the les posterior derogat generali (special law supersedes general law) and lex posterior derogat priori (later law supersedes earlier law)principles govern the matter. It is more complicated when it comes to IL because treaties may derogate from customs and vice-versa. The lex specialis and lex posteriori principles are also found in IL, but there is no supreme court governing and binding them. In case of conflicts between treaties, VLCT gives priori to lex posterior, while the ICJ tends to favour lex specialis. The existence of two conflicting treaties with the same parties does not mean that the first should be considered invalid. Rather, it only means that the parties should not invoke the need to comply with the

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