Public International Law 2 PDF

Lecture 1 Topics: 1. Foundations of IOs 2. Constituent agreement 3. Practicality of an IO 4. Legal personality 1. External 1. Core elements 2. Internal Foundations of International Organizations International Organizations (IO) are sec...

Lecture 1 Topics: 1. Foundations of IOs 2. Constituent agreement 3. Practicality of an IO 4. Legal personality 1. External 1. Core elements 2. Internal Foundations of International Organizations International Organizations (IO) are secondary subjects of international law and they are created by the primary subjects by a multilateral act (states) Constituent agreement The “constitution” of an IO where the main conditions are set out and its entry into force=birth of the IO Interpretation is important for the use of the document: - Textual: the ordinary meaning of the text (contractual dimension) - Contextual: based on the context (constitutional dimension) - Teleological: in the light of its object and purpose, focuses on the purpose Practicality of International Organizations Topics to be discussed (examples): - Headquarters? - Which labor law applies? - they have their own employment law - Can a foreign police enter the organization? - Taxes? The issues of practicalities are discussed in: - Headquarters agreement (matters concerning the host state and the organization, only they are present) - Constituent treaty - Other documents issued by the host's Ministry of Foreign Affairs Legal personality External Capacity to enter into legal relations with other subjects of international law, to enjoy rights and fulfill its obligations Where is the basis for the legal personality of IOs? There are three views: - IOs = states - IOs = just means to facilitate collective action by states - IOs + states = separate subjects - the prevailing view Core elements of external legal personality  - Lus contrahendi - right to conclude international treaties with primary or secondary subjects - Lus legationis - right to establish international relations - Right to participate in dispute settlement procedures - Privileges and immunities - Participation in Relations of International Responsibility Internal Relates to the conclusion of agreements with third/private persons (not treaties) - The contracts made in the host state with a local company, are under the laws of the host state - the organization can accept that Employment issues are different because staff must be protected - International Organizations regulate the conditions by having their own employment laws - When there are breached employment terms, they may bring the situation to a tribunal - Usually they are parties to a tribunal or they have their own Disputes between external consultants will be solved the same way as in contractual issues between the organization and private contractor in matters of procurement - Done by way of arbitration Lecture 2 Topics: 1. Purpose and principles of the United Nations 2. Organs of the UN 1. Secretariat 2. General Assembly 3. Security Council 4. Economic and Social Council 5. Trusteeship Council 6. International Court of Justice 3. Subsidiary organs 4. Specialized agencies Purpose and principles of the United Nations Purposes: maintain international peace and security, and achieve international cooperation Principles: sovereign equality and prohibition of the use of force Organs of the United Nations Secretariat Tasks - Administrative: administer day-to-day affairs - Executive: execute the instructions of the inter-governmental bodies (ex: general assembly)  - Service: services the inter-governmental bodies (treaty deposit) Secretary General Elected by the General Assembly after a recommendation from the Security Council - Responsible for the budget - Political role: may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security - Diplomatic role: good offices - travel to dangered places to negotiate/mediate between the parties General Assembly May discuss any matter mentioned in the Charter, including peace and security - May initiate studies and make recommendations which are not binding - Decision making: important questions: 2/3, other questions: 1/2 + 1 (simple majority) - Each member state has 1 vote Security Council Goal: maintenance of international peace and security Primacy: their decisions prevail over others - Resolutions that include a decision bind all Member States Membership Limited: 15 Member States for 2 years elected by the General Assembly - 5 permanent members - Decided on the basis of contribution they have to international peace and security while considering geographical distribution Decision-making Procedural matters: 9/15 (simple majority) Others: 9/15 including the 5 permanent members - If the 5 member states do not agree, it is considered veto and they “block” the decision - States may abstain Economic and Social Council (ECOSOC) Coordination body for UN specialized agencies - Create non-binding recommendations on the importance of economic and social development and cooperation Trusteeship Council No longer working - Meant for the colonies of the defeated powers and helped the countries to independence International Court of Justice Principal and permanent court of the United Nations Competences  1. Adjudicating on contentious cases between Member States on any matter of the charter a. Decisions are binding on the parties to the proceeding b. Simple majority voting system for judges c. It is a first instance court and there is no room for appeals d. Cannot enforce compliance i. “Winning” party can go to the Security Council about the issue of the “losing” party not complying 2. Issuing advisory opinions a. Non-binding Subsidiary organs Adopted by the General Assembly - Budget by the General Assembly Examples - International Law Commission - Human Rights Council Specialized agencies Autonomous international organizations working with the United Nations on mutual agreement - Coordinated and overviewed by ECOSOC Examples - International Labour Organization - World Health Organization Lecture 3 Topics: 1. Privileges and Immunities of States 1. Exceptions 2. Impunity 3. Examples on what to do 2. Privileges and Immunities of International Organizations 1. General Convention on Privileges and Immunities of the UN (1946) 2. Own dispute settlement mechanisms Privileges and Immunities of States - Privileges: exempts you from a rule - Immunities: means that one is shielded from legal action. - It is an exemption from legal proceedings - Impunity: exemption from punishment or freedom from the injurious consequences of an action Reason for them: - To be able to perform their tasks - To maintain international relations by avoid frivolous charges and arrest Exceptions - State is not immune for its private/commercial act (jure gestionis) - Ex: breach of contract - State immunity is restricted rather than absolute Diplomats and consular staff Diplomats have the duty to respect the laws and regulation of the receiving state, and to not interfere with the internal affairs of that state Heads of state through to ambassador in office have absolute immunity: personal immunity - They are immune for everything they do as person while in office - Even for international crimes there is no exception to his absolute immunity All officers below ambassadorial level: functional immunity - Only for actions part of their official duties Impunity Immunity is different from impunity - Justice should be served in minister's home state's court - Once the minister ceases to hold the position, immunity becomes more limited - He can be tried for acts committed not in his official capacity, and before and after it - International criminal tribunals may have jurisdiction Examples on what to do in case of misuse of immunity - Non-compliance: host state can declare them a persona non grata - the sending state shall recall the person or terminate their functions with the mission - If the sending state does not do this, the receiving state may refuse to recognize the diplomat - If this does not work, the host state can sever diplomatic ties with the sending state and call for closure of the mission Privileges and immunities of International Organizations Immunity from local courts' jurisdiction does not mean that local law does not apply to IOs. They have (are expected to) to comply with specific local regulations - IO - host state relationships are not governed by a general treaty such as for state immunity (VCLT) - Always consult specific treaties/agreements with host/states General Convention on Privileges and Immunities of the United Nations Section 3: UN's property, assets, premises, archives, etc. are immune from legal action (ex: no searching from the police) - No impunity, Secretary General may invite the police on premises  - Host state has duty of due diligence to protect IO's premises (and staff) on its territory. Vice versa, UN has a duty to prevent HQ district to serve as refuge for people avoiding arrest Section 7: UN is exempt form local taxes and customs Member states’ representatives UN can waive its own immunity - Art. 4, section 14: MS can and must waive its representative's immunity when it considers that immunity would impede the course of justice Officials Art. 4, section 19 and 20: - Top employees enjoy personal immunity - The rest have functional immunity - Secretary-General needs to waive official's immunity in case of them misbehaving - If he abuses the immunity, the Security Council has a right to waive their immunity - UN has disciplinary measures at disposal for its staff Experts on mission: people without employment contract with IO, but doing work for it, decided by Secretary-General/head of mission Troops on mission: not governed on the convention, they are governed by specific bilateral agreements with the host state - Status of Forces Agreement - 1990 UN model SOFA: the troops enjoy immunity from local jurisdiction over crimes committed by them. They fall under Troop Contributing Nations' exclusive jurisdiction - "Mothers of Srebrenica": ECtHR upheld the Dutch Supreme Court's decision of UN immunity, even in face of the claim that the UN's failute to prevent genocide was a breach of a jus cogens norm - Immunity is different from compensation for damage incurred as a result of acts by UN in their official capacity - UN may be responsible and require settlement Own dispute settlement mechanisms International Organizations should have their own dispute settlement mechanisms in place Fair trial requirements of Art. 6 ECHR are satisfied when - The organization has reasonable alternative means in place to effectively protect the rights under the ECHRwith a satisfactory dispute settlement system - Internal disputes: many organizations have their own administrative tribunals - UN: UN Dispute Tribunal and the UN Appeal Tribunal - Usually use International Labour Organization's court if they do not have one - For affected/injured 3rd parties: UN model SOFA provides for claims commissions for disputes of a private law character, they do not address human rights or PIL infringements Lecture 4 Topics: 1. Membership of IOs 2. Powers 3. Decision-making Membership of IOs 2 types of Member States : There is no legal distinction between them ➔ Founders ➔ States acceding to the IO All members have: ➔ Full rights ◆ Voting; privileges and immunities… ➔ Full duties ◆ Financial contributions; adherence to IO’s rules and decisions… Who decides who can join? ➔ Para 2: General Assembly decides on recommendation of the Security Council ◆ Decision-making: art. 18(2): 2/3rd majority ◆ Decision-making: art. 27(3): veto applies! Can the GA admit a state without the SC approval? ➔ No: decision-making on accession is a balance between UNGA and UNSC: ➔ UNGA may not bypass UNSC Art. 4(1) UNC lists: ➔ Cumulative conditions ◆ States from one alliance were prevented from joining UN due to P5 veto from the other alliance ➔ Lists exhaustive conditions ◆ No conditions may be added ➔ Conclusion: though governed by law, admission of a new member is a highly political act What happens when things don’t run smoothly? ➔ Option: suspension of membership rights ◆ Temporary measure ◆ Does not free MS from its obligations! Art. 5 UNC Art. 19 UNC Powers ICJ, ‘Reparations’ Adv. Op. (1949): “[T]he Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane.” ➔ There’s link with the founders’ intentions ➔ IO needs its own powers in order to operate, to carry out its functions, and to attain its purposes Attributed Powers: ➔ Powers granted by the MSs to the IO ➔ Powers of IO are limited to whatever is necessary to perform the functions ICJ ‘WHO Nuclear Weapons’ Adv. Op. (1996): “They are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them.” ➔ IOs are governed by the principle of speciality Express Powers: ➔ those explicitly provided in the IO’s constituent instrument Implied Powers: ➔ powers the IO has without them being expressly provided for in the constituent instrument ➔ Implied powers are to give effect to what founders agreed to by establishing the IO and becoming its MSs ➔ Implied powers are not permitted to change/adjust constituent instrument or add obligations to IO or its MSs ICJ, ‘Reparations’ Adv. Op. (1949) “Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” Why do they need such powers? ➔ IO has certain implied powers because it needs them in order to carry out its tasks Delegated Powers: ➔ Powers IOs or their principal organs grant to subsidiary organs ◆ Delegated powers have no direct link to the will of the MSs Restrictions of Delegated Powers: ➔ Such new organs cannot increase the obligations of the IO or its MSs ➔ An IO cannot delegate more powers than it has itself  ➔ IO cannot delegate away its responsibility for actions of subsidiary organ for delegated powers ➔ Subsidiary organs themselves are typically not permitted to create subsidiary organs to them Inherent Powers: ➔ Powers by the nature of being an IO ◆ They are essential to the performance of their duty Risks to Inherent Powers: ➔ there is a thin line between IO’s inherent powers and mission creep The legality of IO actions, and ‘ultra vires’: ICJ ‘Certain Expenses’ Adv. Op. (1962) “When the organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the organization.” Actions ➔ Each UN body interprets such parts of UNC as are applicable to its functions: ‘autointerpretation’ ➔ There is a presumption of legality and validity of IOs’ acts ➔ When the competence of an international organization or its body is challenged, IO or body itself decides whether the challenge has merit ◆ But ICJ has no right of judicial review, and may not declare act of UN organs ultra vires ‘Namibia,’ ‘Lockerbie’ ➔ ICJ can comment on UNSC’s decisions and actions, but not interpret, let alone declare ultra vires ◆ ICJ ‘Bosnia genocide’ case (1993) Ultra Vires ➔ Ultra vires is a question of: is this act valid? Or does it exceed the powers of the IO? ➔ distinguish the question whether an IO act is valid from the act’s legal effect, i.e.binding or not binding? ◆ External Matter ➔ Members of the IO/organ are permitted to raise the objection of ultra vires; nonmembers cannot ◆ Latter can only raise responsibility ➔ Who decides whether an act is ultra vires? ◆ The IO or organ that acted itself ➔ The consequence of establishing an act as being ultra vires: ◆ the act can be annulled ◆ it can be considered to have never existed Decision Making Types: 1. Decision-making by consensus: a. no vote, but consultations until general agreement is reached. (Acclamation) 2. Decision-making by unanimity: a. voting procedure where decision is adopted only if all (present and voting) vote in favor 3. Decision-making by majority: a. Simple majority: 50% + 1 MS need to vote in favour for decision to be adopted b. Qualified majority: 2/3 Lecture 5 Topics: 1. Definition of a reservation 2. Conditions for validity 3. Acceptance and objection 4. Legal effects 5. Declarations 6. Withdrawal and formalities Definition: Article 2(d) VCLT “A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, where it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” Conditions for Validity: ➔ (art. 19 VCLT) ➔ Reservation prohibited by the treaty (a) ➔ Only specified reservations possible (b) ➔ Incompatible with object and purpose of the treaty (c) Acceptance and Objection: ➔ art. 20.4 VCLT ➔ Acceptance – party to that treaty with respect to that state ◆ acceptance required (12 months) ➔ Objection – no general preclusion of entry into force Specially envisaged situations ➔ Art. 20.1-3 VCLT  ➔ Authorised reservations ➔ Limited number of negotiating States/object and purpose ➔ Constituent treaties IOs Legal Effects: Art. 21 VCLT Reserving state: Other party (not objecting): Modifies provisions of the treaty to the Modifies provisions of the treaty to the extent of the reservation extent of the reservation Reserving state: Other party (objecting): Modifies provisions of the treaty to the Provisions do not apply to the extent of the extent of the reservation reservation Reserving state: Third states: Modifies provisions of the treaty to the Does not modify the provisions of the treaty extent of the reservation Declarations: Guideline 1.2 “A unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.” Guideline 1.3 “The character of a unilateral statement as a reservation or as an interpretative declaration is determined by the legal effect that its author purports to produce” Guideline 1.4 “The statement should be interpreted in good faith in accordance with the ordinary meaning to be given to its terms, with a view to identifying therefrom the intention of its author, in light of the treaty to which it refers.” Withdrawal and formalities Withdrawal of reservations and of objections to reservations VCLT 22 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.  2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. Procedure regarding reservations 23 VCLT 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. Lecture 6 Topics: 1. Interpretation of treaties 1. Types 2. Approaches 3. Structure of interpretation 4. Value of language 5. Outside the VCLT 2. Conflicts of treaties 1. General approaches Interpretation of treaties Types - Self-interpretation: by anyone called to apply the provision - Third party interpretation: by a third and superior entity to the parties (i.e.UNSC) - Authentic interpretation: interpretation by the parties that explicitly state what the provision/treaty means Approaches Objective: focuses on the text itself Subjective: focuses on the intent Structure of interpretation  1. General rules a. Textual b. Contextual c. Teleological 2. Elements linked to the text and existing at the time of its adoption a. Text b. Agreements c. Instrument by one or more parties, accepted by the others 3. Elements linked to the text and occurring after its conclusion a. Subsequent agreements b. Subsequent practice c. Any relevant rules of international law 4. Supplementary means a. Preparatory works b. Circumstances of conclusion of the treaty Value of language All languages the treaty is in have the same value, however if there is a disagreement due to the interpretation in different languages, one must look at the object and purpose of the treaty. Outside VCLT 1. A contrario: everything must be interpreted as if anything that is not present does not apply 2. By analogy: if one thing is true, the similar one will be true as well 3. Argumentum ab absurdum: too literal can lead to absurd conclusions 4. Effect utile: must be interpreted as developing a useful effect, not depriving it of any practicalities 5. In favorem libertatis: in case of doubt, we must be use those that are more libertary 6. Lex specialis (within the same treaty) 7. Evolutionary interpretation: i.e. family nowadays does not mean the same thing as in the 50’s Conflicts of Treaties When a State is party to different Treaties, there might be conflicts of contradicting provisions, however there is usually a presumption of non-conflict. General approaches Lex specialis derogat generalis Lex posterior derogat priori 1. Primacy of the UN Charter 2. Treaty specification: some treaties might specify which one applies in case of conflict 3. Successive treaties with identical parties + partially identical parties: second treaty will apply 4. International responsibility: if you are party to two treaties but the other one is only party to one, the remaining should be that of the one that you are both parties to Cases