Public International Law Summary PDF

**Public International Law** PART III: ENSURING COMPLIANCE WITH INTERNATIONAL OBLIGATIONS 7\. the reception of international law in domestic legal order How to apply international law - Arts 26 and 27 VCLT - 26 -- emphasizes the principle of *pacta sunt servanda*[^1^](#fn1){#fnr...

**Public International Law** PART III: ENSURING COMPLIANCE WITH INTERNATIONAL OBLIGATIONS 7\. the reception of international law in domestic legal order How to apply international law - Arts 26 and 27 VCLT - 26 -- emphasizes the principle of *pacta sunt servanda*[^1^](#fn1){#fnref1.footnote-ref} - 27 -- prohibits parties from using their domestic law to avoid fulfilling their treaty obligations Conditions of appliance determined by domestic order - How to bring domestic rules into conformity - How to adopt new legislation/administrative legislation 2 theoretical approaches of application 1. Monism -- unitary legal system embracing all legal orders\ two versions I. Supremacy of municipal law (XVIII-XIX century - International law not binding on states - Nationalism and authoritarianism II. Supremacy of international law (XX century -- Hans Kelsen) - Unitary legal system with International Law on top - In case of conflict between International and domestic law, international law prevails 2. Dualism -- international and domestic law are two distinct and formally separate legal systems (XX century -- Triepel & Anzilotti) III. Different subjects -- states v individuals IV. Different sources -- customary law, treaties v statutes V. International Law needs to be transformed into National Law in order for it to address individuals Self-executing norms: 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 case - Are directly applicable Differences international legal systems from dominant systems - Lack of central authority - States as subjects of international law - Principle of consent - Sovereign legislative body - States themselves create international legal rules - No global government/executive - No system of courts with general compulsory jurisdiction - Even ICJ can only exercise jurisdiction in states that have consented to the submission of disputes to it Diplomatic methods of dispute settlement - Negotiation: parties are actively involved, no third party intervention - Good offices and mediation - Involvement of third party who helps come to a mutual beneficial agreement - Good offices -- a channel of communication - Mediation -- active participation in negotiations - Inquiry -- two meanings 1. A process performed whenever a court or other body try to ascertain the facts in contention 2. A specific institutional arrangement - Conciliation -- involves elements of mediation and inquiry, but is more formal - Reports are only proposals thus do not constitute binding decisions - Arbitration -- oldest method - Carried out by arbitral tribunal set up *ad hoc*[^2^](#fn2){#fnref2.footnote-ref} by the parties to resolve a specific dispute, usually on the basis of international law - ICJ -- 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 - Other courts and tribunals - Dispute settlement under UNCLOS - WTO dispute settlement - International investment disputes - Human Rights Tribunals 8\. International Responsibility and Sanctions Primary rule = an international obligation that will be violated by a subject of international law bound by IT 1^st^ juridical relation between states (original) - Right: held by subject international law, and humanity - Obligation: held by subject international law *Then there is a violation which creates new relations* 2^nd^ juridical relation between states (new) - International responsibility - Includes new rights and obligations but initial obligations persist Main features of international responsibility - It is secondary - Requires art 2 1. Attribution to an international subject 2. A conduct[^3^](#fn3){#fnref3.footnote-ref} that applies a breach - Domestic law is not relevant - It has a special legislation for Jus Cogens norms and Erga Omnes norms [Determining responsibility] Subjective element + objective element -- circumstances precluding wrongfulness\ = wrongful act ⇒ international responsibility and the consequences of that Subjective element: attribution a. Organs of the state (art 4) - Whatever its legislative, executive, judicial or other\ functions, whatever position or character in the\ state organization - Even if its ultra vires b. Persons or entities exercising elements of government (arts 5,9) - Not an organ of the state but empowered by the\ state to make it - Not an organ but in fact it exercises it because of absence of authority c. Organs placed at disposal of a state by another state (art 6) - Temporal situation when an organ placed at disposal of a state acts in the exercise of elements of the governmental authority d. Insurrectional movements (art 10) - For their actions as insurrectionals if they reach the power e. Conduct controlled or adopted by a state as its own(art 5,11) - If the action is under instructions or directions of the state - If the state is acknowledged and adopted its own Types of international obligations - Erga singulum: reciprocal obligations between 2 states - Erga omnes partes: obligations in relation to a group of status - Erga omnes obligations: obligations towards the international community Objective element: the breach - State must be bound by the obligation of the moment of the breach - To establish a breach there is no minimum level of gravity (consequences do vary to it) - Breach may be consequence of: - An action - Non-prevention - Endorsement *Consequences: a new juridical relation is formed (1^st^ juridical relation still exists\ * Breach of singular/collective obligations - Responsible state obligations and invocation[^4^](#fn4){#fnref4.footnote-ref} injured state - Cease the act - Guarantee of non-repetition - Reparation (hierarchy) I. Restitution II. Compensation III. Satisfaction Breach of Erga omnes obligations - Only for serious breach of Jus Cogens norms - Non-recognition - Non-assistance - Cop to end the breach by lawful measure - Or in other words, other states must: - Not recognize the breach - Cooperate to end the breach Enforcement measures -- measures to pressure for compliance with new obligations - Decentralized countermeasures - By injured state - By other state when Erga omnes obligation - Institutionalized sanctions - Needs a structure (IO) and a provision within - Only for its members 9\. International Court of Justice Organization - 15 judges, up to 2 judges ad hoc - Elected by General Assembly and Security Council from PCA list - President and vice-president elected for 3 years - Representative of the 'main forms of civilization and the principal legal system of the world General features - Part of the peaceful settlement mechanisms under art VI of the UNC - Principal judicial organ of the UN - Organ of Public International Law [General issues -- art 38 St] Jurisdiction *Rationae Pasonae* - Only states can bring cases before the Court (art 34) - States may act on behalf of individuals - Cases involving UN member states mat impose jurisdictional challenges Jurisdiction *Rationae Consensus* - Principle of consent art 36.1: "the jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the UNC or in treaties and in conventions in force" - Strict principle: the importance of a norm - Impossible for third states to participate in proceedings Jurisdiction *Rationae Materiae* - Dispute: "a disagreement on a question of law or of fact, a conflict of legal opinions or of interests between two persons" (mavrommatis, 1923) - Monetary gold principle -- France, UK, USA\ ⇒ Tripartite commission of the restriction of the monetary gold seized by Germany since 1938 I. Procedure in contentious cases: application - States as parties - English or French (art 39) - Application or written notification of the special agreement II. Procedure: written proceedings - Blend between continental and Anglo-American common law system - Deadlines agreed with the parties - No document may be submitted by either party after closure (art 56 RoC) III. Procedure: incidental proceedings - Preliminary objections (art 79-79bis -- 79ter Rule of Court) - Provisional measures - Intervention (third state) Preliminary objections (art 79 Rule of Court) - No later than three months proceedings suspended - Jurisdiction - Admissibility - General admissibility (G. Abi-Saab) Provisional measures - Art 41 St: empowers the court to indicate provisional measures to preserve the parties' rights and notify the parties and the security council while awaiting a final decision - Prima facie jurisdiction - Plausibility (reasonable prospect of success on the merits - Non-aggravation of the dispute Intervention - Art 62 Statute - Interest of a legal nature which may be affected by the decision - Art 3 Statute - Construction of a convention - Right to intervene in proceedings Counter-claims - Not a defense on the merits: separate claim - Cumulative requirements - Connection in fact - Same geographical area and period - Facts of similar nature (NICOLC) - Connection in law - Same legal aim - Legal principles or instruments relied upon - Jurisdiction Judgements & implementation - Art 59: *Res Judicata* between parties - In practice, court deals with its previous decisions as precedents - Implementation - Often requires subsequent steps (demarcation, negotiations on reparation) - Means of enforcement to be decided by each party 10\. Global administrative law History - 19^th^ century: states focused on maintaining the law and order within the country and protecting the territory against invasions - Nowadays states provide public goods and services [Administrative law]\ focuses on decisions made by the government Main sources: executive branch, legislative branch, judicial branch (SoP) - Legislator: requirements for environmental and construction permission -- environmental law - Judiciary: courts can check whether the executive remains within the limits imposed by law - Administration: application of the prescribed procedure by law. if the permit is issued, the administration will also monitor the operation of the power plant Public administration - Serves the public interest - Legislator empowers its body - How it effectives its policies: - Juridical acts - Factual acts - Competences: public and private law Beyond the border administrative law has been seen as a body of law on its own - Today comparative administration law is recognized in legal scholarship and practice - Reasons for change - Globalization - Internet - Enhanced international diffusion of information European Administrative Law - Several levels of administrative decision-making and several layers of authorities within a national state - Direct administration: EU law is adopted and executed at EU level - Indirect administration: EU law is executed through national administrations Global Administration Law - Addresses consequences of globalized interdependence - Trans-governmental regulation and administration\ areas that need this form of regulation - Environmental protection - Law enforcement - Trade in product and services - Intellectual property - Labour standards - Types of response: extension of domestic administrative - The development of new mechanisms of administrative law at the global level to address decisions and rules made within the intergovernmental regimes 11\. EU Administrative Law (I) -- procedural principles of administrative law General principles ⇒ originally developed In case law, moved towards codification - Tasks and competences have increased - More powers but greater freedom. Use of these powers differ per field - Tax law: little discretionary power - Land-use plans: more discretionary power - When taking a decision, administration is bound by conditions and limits explicitly mentioned in the applicable general rules - Has to respect fundamental rights Discretionary power -- discretion refers to a freedom of choice on the part of a decision-maker - Must be exercised only by the person to whom it is given Discretion -- advantages -- flexibility: government policies may be more effectively implemented Procedural principles: address the decision-making process and the way in which the interests of the individuals are taken into account during this process - Early CJEU case law has referred to notions of 'good' (32/62), 'sound' (joined cases 1/57 & 14/57), or \'proper' (c-255/90) administration Article 41 CFR: right to good administration - Core feature of the duty of care: "the obligation of the administration impartially and carefully to establish and review the relevant factual and legal elements of a case, prior to making decisions or taking other steps" - Fair and within reasonable time - No arbitrary action, no unjustified preferential treatment and no conflict of interest - Hearing and access to one's files - (right to a fair hearing, right to be informed) - Reasoning of decision - (clear reasoning, allowing the persons concerned to defend their rights) Duty to give reasons - The giving of reasons is a procedural step that informs people affected by a decision *(and potentially the public)* of the substance of a decision - Necessary for fairness and mind concentration - Giving reasons allows parties to know the reasons that motivated the decision-maker. *It also ensures that decision-makers will carefully think about the decisions* - Art 296 TFEU: "legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, requests, recommendations, or opinions required by the treaty" Transparency of information is a re-condition for both a fair and accountable administration and a functioning, participatory democracy. Right of access to documents -- general rights under art 42 CFR, and 15(3) TFEU - Scope (art 2): "all documents held by an institution, drawn up or received by it and its possession, in all areas of the activity of the EU" - 'the institutions' covered (art 1a Reg. 1049/2001) - European Parliament - European Commission - Court of Ministers - Meaning of 'document' in *art 3a Reg. 1049/2001* - Meaning 'beneficiaries' in *art 291 Reg. 1049/2001* - Absolute exceptions (art 4(1) Reg. 1049/2001) - The institutions shall refuse access to a document where disclosure would undermine the protection of; IV. Public interest as regards\ *public security, defense and military matters, international relations, financial, monetary or economic policy of the community or a Member State* V. Privacy and integrity of the individual - Relative exceptions (art 4(2) Reg. 1049/2001) - The institutions shall refuse access to a document where disclosure would undermine the protection of; VI. Commercial. Interests VII. Court proceedings and legal advice VIII. [Unless there is an overriding public interest in disclosure] 12\. EU administrative law (II) -- substantive principles of EU administrative law substantive principles that govern administrative decisions: rule of law, legal certainty, legitimate expectations, proportionality, precautionary principle Substantive principles; motivation - Needs to challenge incorrect, unjust, or unreasonable governmental decisions - Decision-makers need to understand limits of governmental powers Core principle of Rule of Law: "in order to pursue goods and general interests, the administrative authorities receive certain competences from the legislation." - Common element EU law: administration is always bound by law - Allocation and execution of powers are regulated by law - Requirement of the rule of law: legality principle[^5^](#fn5){#fnref5.footnote-ref} - Legislature provides necessary instruments to administration - Also sets the limits of the powers conferred upon the administration - EU law: - Art 263(2) TFEU: grounds for jurisdiction in cases of misuse of powers or breach of treaties - art 19(2) TEU: CJEU ensures treaties are properly applied legal certainty -- laws myst be clear precise and predictable - non-retroactive application: laws apply prospectively unless public interest demands otherwise - art 297(1) TFEU: legislative acts shall be published in the *Official Journal of the European Union* - revocation of acts - lawful acts: cannot be revoked arbitrarily - unlawful acts: revocation allowed under reasonable circumstances (T-251/00 Lagardere) legitimate expectations -- protects those relying on consistent administrative actions, especially when decisions are cancelled or revoked - requirements - justifiable reliance (T-1676/01 Ferriere Nord Spa) - affected interests (74/74 CNTA) - priority for the protection of the expectations over the interests of the Union principle of proportionality (art 5(4) TEU) - ensures government actions - are appropriate to their objections - do not impose disproportionate burdens relative to their aims - CJEU established proportionality as a general principle of EU law before its formal recognition - Degrees of review - Marginal review: applies to areas with wide legislative discretion. CJEU checks for errors. Respect for Separation of Powers (art 13(2) TEU) - Full review: IX. administrative acts: implementing regulation X. Member States acts: limiting fundamental rights or freedoms XI. Balancing rights: explicit under art 52 CFR Precautionary principle - Focuses on risk management in cases of scientific uncertainty - Steps - Conduct risk assessment - Ensure measures are proportional, transparent, and non-discriminatory - Cases: - Pfizer -- antibiotics in animal feed - Monsanto -- GMO's and state safeguards - Artogan -- withdrawal of unsafe medicine product ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} Every treaty is legally binding on the parties involved and they must fulfill their obligations under the treaty in good faith[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} When necessary or needed[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} Action or ommission[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} When the breached obligation is erga omnes to protect collective interest[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} The administration's competence to act must have a basis in legislation[↩](#fnref5){.footnote-back} ::: :::