Public International Law Week 7 PDF

16 October 2024 Dr. Barbara Sonczyk PUBLIC INTERNATIONAL LAW The Reception of International Law in Domestic Legal Orders  Learning outcomes Discuss how international law is ordinarily...

16 October 2024 Dr. Barbara Sonczyk PUBLIC INTERNATIONAL LAW The Reception of International Law in Domestic Legal Orders  Learning outcomes Discuss how international law is ordinarily applied Examine the distinction between monism and dualism Consider the difference between the terms: ‘enforcement of international law’ and ‘international dispute settlement’ Consider the difference between diplomatic and judicial methods of dispute settlement 3 The Reception of International Law in Domestic Legal Orders  Recap: In what ways is the international legal system different from domestic systems? 4 The Reception of International Law in Domestic Legal Orders  In what ways in the international legal system different from domestic systems? Ø The lack of central authority – the horizontal structure of the international community States as subjects of international law – sovereign, independent, equal Decentralisation of legal functions States’ wide-ranging freedom of action – the principle of consent Ø NO sovereign legislative body: States themselves create the rules of the international legal system. How? Through treaties and by contributing to the creation of custom. Ø NO global government / executive. No international police force or comprehensive system of law enforcement. What about the United Nations Security Council? Ø NO system of courts with general compulsory jurisdiction. Even the International Court of Justice (the principal judicial organ of the United Nations) can only exercise its jurisdiction if States have consented to the submission of disputes to it. 5 The Reception of International Law in Domestic Legal Orders  So... do States obey international law? 6 The Reception of International Law in Domestic Legal Orders  ALMOST ALL NATIONS OBSERVE ALMOST ALL PRINCIPLES OF INTERNATIONAL LAW AND ALMOST ALL OF THEIR OBLIGATIONS ALMOST ALL OF THE TIME. Louis Henkin, How Nations Behave (1979) INTERNATIONAL LAW IS NORMALLY OBSERVED. Humphrey Waldock, ILC Fourth Report on the Law of Treaties (1963) Do you think these statements are still valid today? 7 The Reception of International Law in Domestic Legal Orders  Regular Application of International Law Article 26 VCLT: Every treaty is binding upon the parties to it and must be performed by them in good faith. Article 27 VCLT: A party may not invoked the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46. 8 The Reception of International Law in Domestic Legal Orders  Regular Application of International Law The conditions of application of international law are determined by domestic legal orders: − How to bring domestic rules into conformity − How to adopt new legislation/administrative regulations No automatic nullification of domestic law obligations. International law looks mainly to the result How are public international law obligations implemented in practice? − Monism v. Dualism 9 The Reception of International Law in Domestic Legal Orders  Application of International Law: Theoretical approaches - Monism Ø Unitary legal system embracing all legal orders − Two versions: Ø Supremacy of municipal law (XVIII – XIX century) − International law is not binding on states, it merely provides guidelines − Nationalism and authoritarianism Ø Supremacy of international law (XX century - Hans Kelsen) − Unitary legal system (pyramid) with international law at the top − In case of conflict between domestic and international law, international law prevails − No need for transformation of international law into domestic law – IL is directly applicable − International law sources are hierarchically superior to municipal law sources but do not radically differ from them In both systems, individuals are the primary subjects of law (in IL as state officials) 10 The Reception of International Law in Domestic Legal Orders  Application of International Law: Theoretical approaches - Dualism Ø International law and domestic law are two distinct and formally separate legal systems (XX century – Triepel, Anzilotti) − Different subjects – States v. individuals − Different sources – customary law, treaties v. statutes, judicial decisions − International law cannot directly address individuals - it needs to be transformed into national law (incorporated & implemented) − No impact on one another without the express will of States Ø Today, the dualistic view is no longer valid in its entirety − International norms may directly address individuals, regardless of what domestic law may provide, e.g. international crimes, international human rights. Ø Article 27 of the 1969 Vienna Convention on the Law of Treaties 11 The Reception of International Law in Domestic Legal Orders  Application of international law ØWhat are ‘self-executing’ norms? They are provisions of international treaties whose direct application by the domestic legal system of a State is possible because they are sufficiently precise to provide a remedy in a given case. Only self-executing norms are directly applicable so they are logically called ‘the norms of direct effect’. The question of the direct effect of the PIL norms is regulated primarily by the national law of each country. 12 The Reception of International Law in Domestic Legal Orders  How does international law deal with breaches? 13 The Reception of International Law in Domestic Legal Orders  Ensuring Compliance: An Overview ØEnforcement: mechanisms to guarantee the application of international law against the will of the State/IO ØDispute settlement: process whereby two or more States/IOs agree to use a mechanism to bring an end to a legal dispute and enable the application of international law 14 The Reception of International Law in Domestic Legal Orders  Ensuring Compliance: An Overview ØAre there any mechanisms for the enforcement of international law? E.g. − Legal rules on State responsibility − Mechanisms for collective enforcement of international law − Self-help (countermeasures; use of force in self-defence) 15 The Reception of International Law in Domestic Legal Orders  Ensuring Compliance: An Overview ØWhat types of enforcement mechanisms exist in international law? E.g. − Decentralised and institutionalised − Non coercive and coercive mechanism − Diplomatic and judicial/quasi-judicial 16 The Reception of International Law in Domestic Legal Orders  Ensuring Compliance: An Overview Ø The meaning of a ‘dispute’ Dispute - “a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons” PCIJ, Mavromatis Palestine Concessions case (1924) “Whether there exists an international dispute is a matter for objective determination”, e.g. “when two sides hold clearly opposite views concerning the question of the performance or the non-performance of certain treaty obligations.” ICJ, Interpretation of Peace Treaty case (1950) “The two sides h[o]ld clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations.” ICJ, South West Africa case (1966) 17 The Reception of International Law in Domestic Legal Orders  Ensuring Compliance: An Overview ØThe meaning of a ‘dispute’ “A dispute is a legal dispute if it is to be settled by the application of legal norms, that is to say, by the application of existing law.” Hans Kelsen Legal v Political disputes OR Justiciable v Non-justiciable disputes. 18 The Reception of International Law in Domestic Legal Orders  The UN Charter and dispute settlement Art. 2 (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Chapter VI Pacific settlement of disputes Article 33 – Obligations of the parties to a dispute Article 34 - Investigation of disputes and fact-finding Articles 35 –The referral of disputes and situations to the Security Council Articles 36-38 – Recommendations to the parties Other references Articles 11 and 12 – The role of the General Assembly Article 99 – The role of the Secretary-General Example from the UN practice - Peacekeeping 19 The Reception of International Law in Domestic Legal Orders  The UN Charter and dispute settlement Chapter VI Pacific settlement of disputes Article 33 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. 20 The Reception of International Law in Domestic Legal Orders  The UN Charter and dispute settlement Chapter VIII Regional arrangements Chapter VIII of the UN Charter provides the constitutional basis for the involvement of regional organizations in the maintenance of international peace and security for which the Security Council is primarily responsible. Article 52 of the UN Charter provides for the involvement of regional arrangements or agencies in the peaceful settlement of disputes. 21 The Reception of International Law in Domestic Legal Orders  The principle of peaceful settlement of disputes is a basic tenet of the international legal order It is the corollary to the prohibition of the use or threat of force as a means of resolving international disputes. It might be argued that since the non-use of force is regarded ius cogens, the legal obligation to settle disputes peacefully may be considered to have the same character. However, there is no obligation in general international law to settle disputes, but if such an attempt is made, it must be done peacefully. No specific method of peaceful settlement is legally prescribed – procedures for dispute settlement are consensual in character. 22 The Reception of International Law in Domestic Legal Orders  Diplomatic methods of dispute settlement ØNegotiation The simplest and most common method to resolve differences. The parties are directly involved in discussions with a view to reconciling or at least understanding the different opinions. No third party intervention – the negotiating parties decide amongst themselves how to best resolve the differences – however, third parties might provide an incentive to start negotiations (e.g. UN). Sometimes parties may be obliged to enter into negotiations arising out of particular treaties with a view to concluding an agreement. 23 The Reception of International Law in Domestic Legal Orders  Diplomatic methods of dispute settlement ØGood Offices and Mediation Involvement of a third party – an individual or individuals, state(s), or international organisation – to encourage and help the contending parties to reach an agreement. Good offices – a channel of communication, attempts to influence the contending parties to resume negotiations. Mediation – an active participation in negotiations; a mediator’s main concern is to find terms that the parties will accept; s/he must enjoy the confidence of the disputing parties. The Secretary-General, prominent politicians and international organisations often exercise good offices. 24 The Reception of International Law in Domestic Legal Orders  Diplomatic methods of dispute settlement ØInquiry Many international disputes involve questions of fact: − A question of fact is answered by reference to facts and evidence, and inferences arising from those facts. In context of dispute settlement the term inquiry has two meanings: − A process performed whenever a court or other body try to ascertain the fact(s) in contention – it forms a part of different methods of peaceful settlement. − A specific institutional arrangement e.g. a particular type of international tribunal known as the commission of inquiry, which may be chosen instead of arbitration, judicial settlement or other techniques to establish factual circumstance of a dispute (fact- finding) and to suggest terms of a settlement of a legal question. 25 The Reception of International Law in Domestic Legal Orders  Diplomatic methods of dispute settlement ØConciliation “A method for a settlement of international disputes of any nature according to which a commission set up by the parties, either on a permanent or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the parties with a view to its settlement, such aid as they may have requested.” Art. 1 of the Regulations on the Procedure of International Conciliation, adopted by the Institute of International Law in 1961 It involves element of mediation and inquiry – it is more formal than the former and while the fact- finding may be less important than it is for the latter technique. Conciliation reports are only proposals and as such they do not constitute binding decisions. Lack of enforcement mechanism Widely unutilised – other methods prove to be faster, more cost-effective, and more direct 26 The Reception of International Law in Domestic Legal Orders  Legal methods of dispute settlement Ø Arbitration The oldest of the legal methods of dispute settlement. Arbitration is carried out by an arbitral tribunal set up ad hoc by the parties to resolve a specific dispute, usually on the basis of international law. The disputing parties choose the arbitrators, the location and procedure of the tribunal, and determine applicable law. In the past, arbitral tribunals were often invited by the parties to resort to ‘principles of justice and equity’. Arbitral awards are binding for the disputing parties. The Permanent Court of Arbitration - set up by the 1899 Hague Convention for the Pacific Settlement of International Disputes as an arbitration secretariat and mechanism providing a variety of dispute resolution services to the international community. 27 The Reception of International Law in Domestic Legal Orders  Legal methods of dispute settlement Ø The International Court of Justice ICJ is the principal judicial organ of the United Nations, located in the Hague. ICJ began work in 1946 and replaced the Permanent Court of International Justice. PCIJ had been provided for in the Covenant of the League of Nations and functioned in the Peace Palace since 1922. ICJ Statute (largely similar to that of its predecessor) is an integral part of the Charter of the United Nations. All members of the United Nations are parties to the ICJ Statute. ICJ has two functions: − to settle in accordance with international law the legal disputes submitted to it by states − to give advisory opinions on legal questions referred to it by authorized UN organs and agencies 28 The Reception of International Law in Domestic Legal Orders  Legal methods of dispute settlement Ø Other courts and tribunals Dispute settlement under UNCLOS The International Tribunal for the Law of the Sea (ITLOS) UNCLOS Annex VII and VIII arbitration The Seabed Disputes Chamber (a specialised division of ITLOS) The WTO dispute settlement Dispute Settlement Understanding (DSU) – replaced/reinforced the system of General Agreement on Tariffs and Trade (GATT) International investment tribunals International investment arbitration is conducted between a foreign investor and the ‘host’ state in which its investment is located, usually pursuant to a dispute resolution clause in an investment treaty Human rights tribunals Individual complaints Inter-state disputes 29 The Reception of International Law in Domestic Legal Orders  QUESTIONS? 30  THANK YOU! 31