Exam 2 - PIL PDF

**Week 7 -- The reception of IL in domestic legal orders** In what ways is the international legal system different from domestic systems? - Lack of central authority (horizontal structure of the international community): - States as subjects of international law: sovereign, independe...

**Week 7 -- The reception of IL in domestic legal orders** In what ways is the international legal system different from domestic systems? - Lack of central authority (horizontal structure of the international community): - States as subjects of international law: sovereign, independent and equal - Decentralisation of legal functions - States' wide-ranging freedom of action: principle of consent - No sovereign legislative body: - States themselves create the rules of the international legal system: - Through treaties and contributing to the creation of custom - No global government or executive: - No international police force or comprehensive system of law enforcement - No system of courts with a general compulsory jurisdiction - ICJ can only exercise its jurisdiction if states have accepted the jurisdiction Regular application of IL: - Art. 26 VCLT: - Every treaty is binding upon the parties to it and must be performed by them in good faith - Art. 27 VCLT: - A party may not invoke the provisions of its internal law as justifications for its failure to perform a treaty - The conditions of application of IL 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 - Monism/dualism - Monism: - Unitary legal system embracing all legal orders - Two versions: - Supremacy of municipal law: - International law is not binding on states, it only provides guidelines - Nationalism and authoritarianism - Supremacy of international law: - Unitary legal system with international law on 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: individuals are the primary subjects of law in both systems (IL as state officials) - Dualism: - International law and domestic law are two distinct and separate legal systems: - Different subjects: states v. individuals - Different sources: customary law, treaties v. statutes, judicial decisions - IL cannot directly address individuals -\> needs to be transformed into national law (incorporated and implemented) - No impact on another without the express will of states - No longer valid in its entirety: international norms may directly address individuals - Art. 27 VCLT - What are '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 given case - Called 'the norms of direct effect' - The question of the direct effect of the PIL norms is regulated by the national law of each country Ensuring compliance -- an overview: - Enforcement: - Mechanisms to guarantee the application of IL against the will of the state/international organisations: - Legal rules on state responsibility - Mechanisms for collective enforcement of IL - Self-help (countermeasures, use of force in self-defence) - Decentralised and institutionalised - Non coercive and coercive mechanism - Diplomatic and judicial/quasi-judicial - Dispute 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 IL - The meaning of a 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 non-performance of certain treaty obligations." -- ICJ, Interpretation of Peace Treaty case (1950) - "The two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations." -- ICJ, South West Africa case (1966) - "A dispute is a legal dispute if it is to be settled by the application of legal norms \[...\]" -- Hans Kelsen - The UNC and dispute settlement: - Art. 2(3): All members shall settle their international disputes by peaceful mean in such a manner that international peace and security, and justice are not endangered. - Chapter VI -- Pacific settlement of disputes: - Art. 33 -- Obligations of the parties to a dispute: - 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. - The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. - Art. 34 -- Investigation of disputes and fact-finding - Art. 35 -- The referral of disputes and situations to the SC - Art. 36-38 -- Recommendations to the parties - Other references: - Art. 11 and 12 -- The role of the GA - Art. 99 -- The role of the SG - Chapter VIII -- Regional arrangements: - Constitutional basis for the involvement of regional organisations in the maintenance of international peace and security - Art. 52 UNC: involvement of regional arrangement or agencies in the peaceful settlement of disputes Principle of peaceful settlement of disputes: - Corollary to the prohibition of the use or threat of force as a means of resolving international disputes - Non-use of force = jus cogens -\> legal obligation to settle disputes peacefully - No obligation in IL to settle disputes, but if an attempt is made -\> done peacefully - Procedures for dispute settlement are consensual in character Diplomatic methods of dispute settlement: - Negotiation: - Simplest and most common method to resolve differences - No third party intervention - Good offices and mediation: - Involvement of a third party to encourage 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 participator in negotiations: main concern -\> find terms that the parties will accept - Inquiry: - 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 - 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. - Concilation: - 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. - Arbitration: - The oldest legal method of dispute settlement - Carried out by an arbitral tribunal set up ad hoc by the parties to resolve a specific dispute - Disputing parties choose the arbitrators, the location and procedure of the tribunal and determine the applicable law - The Permanent Court of Arbitration: - Set up by the 1899 Hague Convention - AN arbitration secretariat and mechanism providing a variety of dispute resolution services - The ICJ: - Principal judicial organ of the UN - Began in 1946 and replaced the Permanent Court of International Justice - ICJ Statute (largely similar to that of its predecessor) = integral part of UNC - All UN members are parties to the ICJ statute - Two functions: - To settle in accordance with IL 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: - The International Tribunal for the Law of the Sea (ITLOS) - UNCLOS Annex VII and VIII arbitration - The Seabed Disputes Chamber - The WTO dispute settlement: - Dispute Settlement Understanding (DSU): replaced/reinforced the system of General Agreement on Tariffs and Trade (GATT) - International investment tribunals: - 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 Week 8 -- State responsibility for an international wrongful act: General scheme: - Primary rule: an international obligation that will be violated by a subject of IL bound by it 1st juridical relation between states (original relation) - Right: - Subject IL - Humanity - Obligation: - Subject IL - there is a violation (wrongfulness) which creates an new relation 2nd Juridical relation between states (new relation) - International responsibility: new rights + new obligations Main features of international responsibility Its secondary Requires art 2 1\. Attribution to an international subject 2\. A conduct ( action or omission) that implies a breach Domestic law is not relevant It has a special regulation for Jus Cogens norms and Erga Omnes norms Determine responsibility Subjective element + Objective element - circumstances precluding wrongfulness = Wrongful ac -\> International responsibility and the consequences of that Subjective element: Attribution Organs of the state ○ Legislative, executive, judicial or other functions ○ Position or character in state organization ○ Even if ultra vires Persons or entities exercising elements of government authority ○ Not and organ of state but empowered by the state to exercise it ○ Not an organ but exercises it because of absence of authority Organs placed at the disposal of a state by another state ○ Temporal situation when an organs placed at disposal of state acts in the exercise of elements of governmental authority Insurrectional movements ○ For their actions as insurrectional if they reach the power Conduct controlled or adopted by a state as its own ○ If action is under instructions or direction of the state ○ If the state acknowledged and adopted its own Objective element : The breach The state must be bound by the obligation at the moment of the breach To establish a breach there is no minimum level of gravity (consequences do vary due to it) Breach may be consequence of : ○ An Action ○ Non prevention ○ Endorsement Circumstances precluding wrongfulness Annulment of the classification of wrongdoing (not for Jus Cogens) = no wrongful nature but compensation for damages is still needed Consent Countermeasures Distress Force Majeure Necessity Self defence Consequences : a new juridical relation (1st juridical relation still exists) Types of International obligations Erga singulum Reciprocal obligations between two states Ergsa omnes partes Obligations in relation to a group of states Erga omnes obligations Obligations towards the international community Breach of singular / collective obligations Responsible state Obligations & Invocation injured state \- Cease the act \- Guarantee of non-repetition \- Reparation (hierarchy) ○ 1 Restitution ○ 2 Compensation ○ 3 Satisfaction Breach of Erga Omnes obligations Other states (not injured) obligations Only for serious breach of Jus Cogens norm ○ Non recognitions ○ Non assistance ○ Coop to end the breach by lawful measure Invocation, when the breached obligation is Erga Omnes to protect collective interest Injured state Individual state that owns the obligations The one that suffered the harm Erga Omnes obligations State specially affected by the breach Or The breach his such that radically change the position of all the others for further performance of the obligation 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 Week 9 -- The ICJ International courts and tribunals: - A court/tribunal -\> an exception rather than a rule - Third-party adjudication -\> loss of control - Does not need to cover all aspects of a dispute - Multiple options - \> solution based on law - Rigid mechanism - Expensive and does not work for all disputes General features: - Part of the peaceful settlement mechanisms under Art. VI UNC - Only inter-state tribunal with general jurisdiction - Only UN body situated outside the geographic spheres of influence - Great influence on clarification/development of PIL Organisation: - 15 judges - Elected by the GA and SC from the PCA list (Art. 4 ICJ Statute) - Up to 2 judges ad hoc (Art. 31 ICJ Statute) - Representative of the main forms of civilization and the principal legal systems of the world - 9 years with re-election - President and Vice-President elected for 3 years (Art. 21 ICJ Statute) - Incompatibilities (Art. 16, 17, 24 ICJ Statute) - Registry Governing texts: - UNC - ICJ Statute - Rules of Court - Resolution concerning the judicial practice of the Court - Practice Directions Jurisdiction: - Art. 38 ICJ Statute: - International conventions - International custom - General principles of law recognized by 'civilized nations' - Judicial decisions and the teachings of the most highly qualified publicists - Ratione Personae: - Art. 34.1: only states - Reference to general international law - States parties to the UN - States appear on behalf of individuals -\> it is possible for individuals to get involved in the cases - Art. 34.2/3: IOs participation - Ratione Consensus: - Principle of consent: Art. 36.1 - The importance of a norm does not give the Court jurisdiction (East Timor, 1996) - Impossible for third parties to participate in proceedings (Monetary Gold) - Lack of formalism: - Treaties for the peaceful settlement of disputes - Jurisdictional clauses in treaties - Optional clause declarations (art. 36.2) - Special agreements - Forum prorogatum (art. 36.5) - Treaties for the peaceful settlement of disputes: - General Act for the Pacific Settlement of International Disputes (1928) - Inter-American Treaty on the peaceful settlement of disputes (Bogotá pact, 30 April 1948) - Bolivia v. Chile, 2015 - European Convention on the peaceful settlement of disputes (Strasbourg, 29 April 1957) - Compromissory clauses: - Disputes concerning the interpretation and application of a Treaty - Renvoie to the provisions of the Treaty + certain additional questions: - State responsibility (Factory at Chorzow, Nicaragua v. US, Bosnian Genocide) - Termination or suspension of the Treaty (jurisdiction of the ICAO) - Any international law principles mentioned in the treaty - Other rules of international law by way of systemic interpretation (Oil Platforms case) - Optional clause declarations: - Origin in the negotiations of the PCIJ Statute: no agreement on compulsory jurisdiction - "In relation to any other state accepting the same obligation" (Art. 36.2) - In force at the moment of institution of proceedings, surprise attacks are possible (right of passage, Cameroon v. Nigeria - Ratione Materiae: - Dispute: "a disagreement on a question of law or of fact, a conflict of legal opinions or of interests between two persons" (Mavromatis, 1923) - 'A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence... It must be shown that the claim of one party is positively opposed by the other' (South West Africa) - 'the function of the concept... is to express in a legally discrete term the matter in connection with which the Court is empowered to make a judicial decision...' (Rosenne) - Monetary Gold principle: admissibility - France, UK and US: Tripartite Commission for the Restitution of the Monetary Gold seized by Germany since 1938 - Albania: claimed ownership of monetary gold seized in Rome in 1943 - Italy: had claims against Albania, but feared a case by Albania before the ICJ - Subsequent case law: - Nicaragua v US: - Third parties: Honduras and El Salvador - Nauru v Australia: phosphate mines - Third parties: UK and New Zealand - Portugal v Australia (East Timor case): - Third party: Indonesia - Procedure in contentious cases: application - States as parties - Languages: English or French (Art. 39) - Application or written notification of the special agreement (art. 40) -\> communication to the other party and the SG - Specify: - Legal grounds of jurisdiction - Nature of the claim - Statement of facts - Written proceedings: - Blend between the continental system and the Anglo-American common law system - One/two rounds of pleadings (art. 43.2 "if necessary") - Deadlines: agreed with the parties - No word-limits - After the closure of the written proceedings -\> no document may be submitted by either party (art. 56 RoC) - Incidental proceedings: - Preliminary objections (art. 79 RoC): - Jurisdiction - Admissibility - General admissibility (G. Abi-Saab): questions of judicial propriety - Moot question - Lack of legal effects of the decision (Marshall Islands case) - Motu proprio by the Court - By a party (art. 79bis): - No later than 3 months - Proceedings suspended - Possibility to be heard on the merits - Decision (art. 79ter) - Provisional measures: - Art. 41 - Prima facie jurisdiction - Plausibility (Ukraine v Russia) - Risk of irreparable prejudice to the rights asserted by the Applicant/Respondent (Pulp Mills) - Urgency: a real and imminent risk - Link between measures and rights (Arbitral Award of 31 July 1989) - Non-aggravation of the dispute - Intervention (third state): - Art. 62: - Interest of a legal nature - Country that may be affected by the decision - Judgment binding on the third party - Art. 63: - Construction of a convention (notification) - Right to intervene in proceedings - Judgment binding on the third party - Counter-claims: - Art. 80 RoC: - Only within the jurisdiction of the Court - Directly connected with the subject matter of the claim - Not a defence on the merits: a separate claim (Bosnian Genocide, Order, 1997) - Widens the subject matter of the dispute by pursuing aims other than the dismissal of the claim - Cumulative requirements - The Court has a certain discretion - Connection in fact: - Same geographical area - Same area - Facts of a similar nature - Connection in law: - Same legal aim - Same legal principles or instruments relied upon - Special reference to the Court - Discontinuance - Oral proceedings/judgment: - Art. 94 UNC: obligation to comply - Requires subsequent steps (demarcation, negotiations on reparations) - Means of enforcement to be decided by each party (Avena, Jadhav) - Art. 59 Statute: res judicata between the parties (dispositif) - Court decision is only binding between the parties: previous decisions are precedents **Week 10 -- Intro to Administrative Law** Role of the state throughout history: - 19^th^ century: focused on maintaining the law and order within the country and protecting the territory against invasions - Post-industrial revolution: providing community services and distributing wealth among its citizens - Now: states provide public goods and services Topics of AL: - Administrative authorities and their servants - Powers of administrative authorities - Procedural rules applicable to public powers - Substantive requirements public authorities must follow - Judicial protection against administrative action Instruments and powers of public administration: - The administration serves the public interest - The legislator empowers the administrative body - Implements its policies through juridical and factual acts - Competences: - Public and private law - Context in liberal orders: - The state holds a dual role: facilitator and potential limiter of freedom - Concept: co-originality of freedom and authority (Habermas) - Public law: - Manages political power, its structural organization and interactions with citizens - Constitutional law: - Defines the state's structure, fundamental rights and core values - Expanded beyond traditional public law during the 20^th^ century - Administrative law: - Implements and enforces constitutional frameworks and principles - Private law: - Governs relationships between individuals and private entities Administration within the trias politica: - Legislator -\> administration -\> judiciary Public administration: - Civil servant employment - Legal guarantees of civil service employment: - Merit-based recruitment - Promotion based on a mixture of seniority and merit - Pay scales and benefits that are more standardized than in private enterprise - Public management reforms: terms of public sector employment more flexible and closer to performance indicator Administrative law beyond the state border: - AL has been seen as a unique system to each country and as a body of law on its own -\> no need to look elsewhere - Comparative administrative law is recognized in legal scholarship and practice - Reasons for change: - Globalisation - Enhanced international diffusion of information - Internet - Cross-border health, safety and environmental issues European AL: - Multi-level governance within a state - Joint concerns of EU and national governments: - Food safety - Traffic safety - Designation of nature reserve - Direct administration -\> EU law is adopted and executed on EU level - Indirect administration -\> EU law is executed through the national administrations Global AL: - Why global AL? - Address the consequences of globalized interdependence - Transgovernmental regulation and administration - Which areas need these type of regulation? - Environmental protection - Law enforcement - Trade in product and services - Intellectual property - Labour standards - Lack of accountability: - Types of responses: - Extension of domestic administrative - Development of new AL mechanisms at the global level to address decisions and rules made within the intergovernmental regimes **Week 11 -- Procedural Principles of AL** General principles: - Tasks + competences of administration have increased: more power to regulate but more freedom in exercising these powers (power differs in each field of law - When making a decision, the administration: - Is bound by the conditions and limits explicitly mentioned in the applicable general rules - Has to respect the fundamental rights of those affected by the decision - Must take general principles of AL into account - Origin: - Developed in case law -\> move towards codification - EU legal systems recognize the same general principles - Administration has discretionary power -\> some legal limits imposed on the exercise of its powers - Discretionary power: - Refers to -\> freedom of choice on the part of a decision-maker - Must be exercised by the person to whom it is given - Needs to act responsibly and not arbitrarily - Advantages: - Flexibility - Government policies may be more effectively implemented - Disadvantages: - Opens the way for inconsistent decisions - May put citizens at mercy of the administrator - Can be misused by decision-makers - Procedural principles: - Address the decision-making process and the way in which the interests of individuals are taken into account during this process - Substantive principles: - Impose certain requirements on the administration with regard to the content of the decision or measures - EU level principles: - Good administration: - Recognized as a general principle of EU law and as a binding fundamental right Immagine che contiene testo, schermata, Carattere Descrizione generata automaticamente - Art. 41 CFR: right to good administration: - Every person has the right to have their affairs handled impartially, fairly and within a reasonable time by EU institutions/bodies - Includes the right to be heard, right to have access to their file and the obligation of the administration to give reasons for its decisions - Duty of care: - The obligation to impartially and carefully establish and review the relevant factual and legal elements of a case - No arbitrary action, - No unjustified preferential treatment, - No conflict of interest - Fair and within a reasonable time - Hearing and access to one's file: - Right to a fair hearing before any individual measure (audi alteram partem or audiatur altera pars) - Preparation of a hearing requires access to one's file - Right to be informed - Reasoning of decisions: - The obligation to provide grounds for the action taken - Clear reasoning behind the decision - Allows the persons concerned to defend their rights - Duty to give reasons: - A procedural step informing people affected by a decision and the substance of that decision - Fairness requires that the parties should be left with no doubt about why they have won/lost - Reasons: - Parties can know the reasons which motivated the decision-maker - It ensures that the decision-makers will think about the reasons for taking a decision and justifying them - Art. 296 TFEU - Transparency of information: - Sunshine laws (freedom of information acts) -\> public government held information - Also govern the exceptions of the main rule - A re-condition for both a fair and accountable administration and a functioning, participatory democracy - Right of access to documents: - General right of access to documents under art. 42 CFR and 15(30) TFEU - General legislation on access to documents -\> Regulation 1049/2001 issued on the basis of art. 15 TFEU - Institutions covered: - EP, EC and Council of Ministers - Applies to any EU citizen and any legal/natural persons residing or having their office in a MS - Absolute exceptions: - Public interest: - Public security - Defence and security matters - International relations - The financial, monetary or economic policy of the community/MS - The privacy and integrity of the individual - Relative exceptions: - If access to a document undermines the protection of: - Commercial interests of a natural/legal person, including intellectual property - Court proceedings/legal advice - Purpose of inspections, investigations and audits - Unless there is an overriding public interest in disclosure **Week 12 -- Substantive principles:** Motivation for substantive principles: - Need to challenge incorrect, unjust or unreasonable governmental decisions - Decision-makers need to understand the limits of governmental powers Rule of Law: - Common element to European systems: the administration is always bound by law - The allocation and execution of powers are regulated by law - The administration must refrain from violating the law, including the basic rights of individuals - Sovereignty lies with the people -\> governments only have the powers given to them - -\> legal limits on government actions: governments should only be able to act where it has the legal power to do so - Requirement: legality principle -\> the administration's competence to act must have a legislative basis: provides the necessary instruments to the administration and sets limits to the powers conferred upon the administration - Revocation of acts: - Lawful acts: not to be revoked in principle - Unlawful acts: - Withdrawal occurs within a reasonable time - Institution from which it came knows how far the applicant might have been led to rely on the lawfulness of the measure (Legardère and Canal+ v. Commission) Principle of legal certainty: - A fundamental principle of EU law: requires rules to be clear and precise so that individuals can ascertain what their rights and obligations are - Cases: - Italy v. Commission \[1993\] - Industrias Pesqueras Campos v. Commission \[1996\] - Non-retroactive effect of EU law: art. 297(1) TFEU - Legislative acts are published in the Official Journal of the EU - Exceptions: - "It clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected" - If the public interest in the retroactive effect overrides the private interest in the maintenance of the existing legal situation Principle of legitimate expectations: - General principle of EU law -\> Lemmerz-Werke \[1962\] - Requirements: - Justifiable reliance: Ferriere Nord Spa v. Commission - Affected interest: CNTA v. Commission \[1975\] - Priority for the protection of the expectations over the interest of the Union Principle of Proportionality: - General principle of EU law -\> CJEU-established - Used in reviewing the legality of acts by EU institutions (acts limiting individual rights or MS powers), MS and other bodies - Proportionality test: - Appropriateness: ERT v DEP - Least restrictive means: Afton Chemical - Balancing: Afton Chemical - Degrees of judicial review: - Marginal review: - Applies to areas with wide legislative discretion - CJEU checks for manifest errors - Respect for separation of powers (art. 13(2) TEU) - Full review -- used in cases with limited discretion: - Administrative acts: implementing legislation - MS acts: limiting fundamental rights/freedoms - Balancing rights: explicit under art. 52(1) CFR Principle of precaution: - Principle gaining prominence in EU law -\> environmental and public health contexts - Aim: manage risks where scientific certainty is lacking but potential harm exists - Implicit in ECJ jurisprudence: formalized by CFI (now GC) in key cases like Pfizer and Artegodan - Art. 191(2) TFEU - Application goes beyond environmental policies - Review of EU actions: - Used as a shield: justifies protective measures by EU institutions when risks are uncertain (Pfizer) - Applied in scientific risk assessments that balance protection and economic consideration: - Components: - Hazard identification, characterization, exposure appraisal, and risk characterization - Must be thorough, based on latest scientific data and transparent - Application guidelines: - Measures must be proportional, non-discriminatory and consistent - Actions should balance societal risks and economic impacts -\> ensuring public health takes precedence - Case examples: - Pfizer: antibiotic additives in animal feed and health risks - Artegodan: withdrawal of unsafe medicinal products - Monsanto: regulation of genetically modified foods and MS safeguards