Public International Law PDF

Summary weeks 7-12 -- Public International Law -- Week 7 - The Reception of International Law in Domestic Legal Orders No real hierarchy in international (there is jus cogens but...) **The lack of central authority** -- the *horizontal* structure of the international community - States as subj...

Summary weeks 7-12 -- Public International Law -- Week 7 - The Reception of International Law in Domestic Legal Orders No real hierarchy in international (there is jus cogens but...) **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 NO sovereign legislative body: States create rules of international legal system \--\> Through treaties and by contributing to creation of custom NO global government / executive - No international police force or comprehensive system of law enforcement Using International Organisation, because they consented (=United Nations Security Council? -- Members consented) NO system of courts with general compulsory jurisdiction Even ICJ (principal judicial organ of UN) can only exercise jurisdiction if States have consented to submission of disputes to it \+ no executive and only binding to state parties to dispute **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. - pacta un servanda* Article 27 VCLT: *A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.* *This rule is without prejudice to Article 46.* *\--\> international obligations are supreme over domestic law (?); states are bound by treaty* 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, not how implemented − *Monism v. Dualism* +-----------------------------------+-----------------------------------+ | **Application of International | **Application of International | | Law: Theoretical approaches - | Law: Theoretical approaches - | | Monism** | Dualism** | | | | | **Unitary legal system embracing | **International law and domestic | | all legal orders** − Two | law are two distinct and formally | | versions: | separate legal systems (XX | | | century -- Triepel, Anzilotti)** | | **Supremacy of municipal law | | | (XVIII -- XIX century)** | **To many differneces, sources, | | | legislative measures** | | International law is not binding | | | on states, it merely provides | Different subjects -- States v. | | guidelines − Nationalism and | individuals | | authoritarianism (colonies) | | | | Different sources -- customary | | **Supremacy of international law | law, treaties v. statutes, | | (XX century - Hans Kelsen)** | judicial decisions | | | | | Unitary legal system(pyramid) | International law cannot directly | | with international law at the top | address individuals-it needs to | | | be **transformed into national | | In case of conflict between | law** (incorporated & | | domestic and international law, | implemented) | | international law prevails | | | | No impact on one another without | | No need for transformation of | the express will of States | | international law into domestic | | | law--IL is **directly | **Today, the dualistic view is no | | applicable** | longer valid in its entirety** − | | | International norms may directly | | International law sources are | address individuals, regardless | | hierarchically superior to | of what domestic law may provide, | | municipal law sources but do not | e.g. international crimes, | | radically differ from them | international human rights\ | | | **Article 27 of the 1969 Vienna | | In both systems, individuals are | Convention on the Law of | | the primary subjects of law (in | Treaties** | | IL as state officials) | | +-----------------------------------+-----------------------------------+ **Application of international law** **'self-executing' norms =** direct application by domestic legal system is possible because they are **sufficiently precise** to provide a remedy in a given case 'the norms of direct effect' (only these are directly applicable) question of the direct effect of the PIL norms is regulated primarily by the national law of each country \--\> may be invoked in court by individuals, only monist states. Not precise provisions are not directly applicable - see direct effect EU law **Ensuring Compliance with International Law** **Enforcement**: mechanisms to **guarantee the application of international law** [against the will of] the State/IO (subject to international law) − Legal rules on **State responsibility** − Mechanisms for **collective enforcement** of international law e.g. UN (sanctions), NATO,... \ need peaceful settlements, if they settle!* **Chapter VI Pacific settlement of disputes** Article 33 -- Obligations of the parties to a dispute: by ***negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice*** 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 operations, not stipulated in charter, practice to resolve crisis** **Chapter VIII Regional arrangements:** provides constitutional basis for involvement of regional organizations in maintenance of international peace and security for which SC is primarily responsible Art. 52 UNC provides for involvement of regional arrangements/ agencies in peaceful settle disputes Regional arrangements may be more useful to settle peace and prevent war (EU,AU,...) **The principle of peaceful settlement of disputes is a basic tenet of the international legal order** prohibition of use or threat of force as a means of resolving international disputes - since non-use of force is regarded *ius cogens* !no obligation in general international law ***to settle*** disputes, but if such an attempt is made**, it must be done peacefully** No specific method-- procedures for dispute settlement are consensual in character **Peaceful settlements** **Diplomatic -** choose third party, if relevant; not binding; keeps good relation + more control over process + more flexible Verses **Lawful** - third party, not choosen, ICJ o.Ä.; binding **Diplomatic methods of dispute settlement - UN charter, article?** +-----------------+-----------------+-----------------+-----------------+ | **Negotiation** | **Good Offices | **Inquiry** | **Conciliation* | | | and Mediation** | | * | | simplest and | | Many | | | most common | Involvement of | international | *"A method for | | method | a **third | disputes | a settlement of | | | party** -- | involve | international | | parties | individual/ | questions of | disputes of any | | directly | individuals, | fact− question | nature | | involved in | state(s), | off act is | according to | | discussions | /international | answered by | which a | | with a view to | organisation | **reference to | [commission set | | reconciling/ at | | facts and | up by the | | least | -- encourage + | evidence**, and | parties, either | | understanding | help contending | inferences | on a permanent | | different | parties to | arising from | or an ad hoc | | opinions, even | reach agreement | those facts | basis to deal | | not finding | | \"what | with a | | commonground | [Good | happened?\" | dispute]{.under | | | offices]{.under | \"fact | line}, | | No third party | line} | finding\"- may | [proceeds to | | intervention -- | -- channel/ | install | the impartial | | negotiating | environment of | tribunal to | examination of | | parties decide | communication, | solve issues | the | | amongst | attempts to | arising from | dispute]{.under | | themselves how | influence | that, | line} | | to best resolve | contending | independent | and attempts to | | differences | parties to | body sometimes, | define the | | | resume | may propose | terms of a | | -- however, | negotiations | settlement | settlement | | third parties | **less active | | susceptible of | | might provide | role of third | context of | being accepted | | an incentive to | party** | dispute | by them, or of | | start | | settlement, two | affording the | | negotiations | **Secretary-Gen | meanings: | parties with a | | (e.g. UN) | eral,** | | view to its | | | prominent | process | settlement, | | ! Sometimes | politicians and | performed | such aid as | | parties may | international | whenever a | they may have | | obliged to | organisations | court/ other | requested."* | | enter into | often exercise | body try to | | | negotiations | good offices | ascertain | Art. 1 of | | arising out of | | fact(s) in | Regulations on | | particular | [Mediation]{.un | contention - | Procedure of | | treaties with a | derline} | forms part of | International | | view to | -- active | different | Conciliation, | | concluding an | **participation | methods of | adopted by | | agreement | ** | peaceful | Institute of | | | in | settlement | International | | | negotiations; | | Law in 1961 | | | find terms that | specific | | | | parties will | **institutional | elements of | | | accept; s/he | arrangement | mediation and | | | must enjoy the | e**.g. | inquiry -- more | | | confidence of | particular | formal than | | | disputing | **type of | former and | | | parties \--\> | international | while | | | might **propose | tribunal** | fact-finding | | | solutions, not | known as | may be less | | | binding!** | **commission of | important than | | | | inquiry -** | it is for the | | | | chosen instead | latter | | | | of arbitration, | technique | | | | judicial | | | | | settlement or | C. reports are | | | | other | only proposals | | | | techniques to | and as such | | | | **establish | they do not | | | | factual | constitute | | | | circumstance** | binding | | | | of a dispute | decisions | | | | (fact-finding) | | | | | and to suggest | Lack of | | | | terms of a | enforcement | | | | settlement of a | mechanism | | | | legal question | | | | | | Widely | | | | | unutilised | | | | | --other methods | | | | | prove to be | | | | | faster, more | | | | | cost-effective | | | | | + direct | +-----------------+-----------------+-----------------+-----------------+ **Legal methods of dispute settlement** +-----------------------+-----------------------+-----------------------+ | **Arbitration** - | **The International | **Other courts and | | oldest legal methods | Court of Justice** | tribunals** | | of dispute settlement | | | | | - principal | Dispute settlement | | carried out by | judicial organ of | under UNCLaw Of the | | independent | UN, located in | Sea | | **arbitral tribunal | the Hague | | | set up *ad hoc (=for | | - International | | specific case)* by | began work in 1946 | Tribunal for the | | parties** to resolve | and replaced - PCIJ ( | Law of the Sea | | specific dispute, | Covenant of League of | (ITLOS) | | usually on basis of | Nations and | | | IL | functioned in the | - UNCLOS Annex VII | | | Peace Palace since | and VIII | | \- disputing parties | 1922) | arbitration | | choose the | | | | arbitrators | ICJ Statute (largely | - The Seabed | | | similar to that of | Disputes Chamber | | \- select the | its predecessor) is | (a specialised | | location and | an integral part of | division of | | procedure for the | UNC = All members of | ITLOS) | | tribunal | UN parties to the ICJ | | | | Statute | World Trade | | \- determine | | Organisation dispute | | applicable law for | \- to settle in | settlement | | dispute | accordance with | | | | international law the | Dispute Settlement | | In the past, arbitral | legal disputes | Understanding (DSU) | | tribunals were often | **submitted to it by | -- | | invited by the | states** | replaced/reinforced | | parties to resort to | | the system of General | | 'principles of | \- to give **advisory | Agreement on Tariffs | | justice and equity' | opinions** on legal | and Trade (GATT) | | | questions referred to | | | Arbitral awards are | it by **authorized UN | International | | **binding for the | organs and agencies** | investment tribunals | | disputing parties** | | | | | |... arbitration is | | The **Permanent Court | | conducted between | | of Arbitration** - | | f**oreign investor | | set up by the 1899 | | and the 'host' | | Hague Convention for | | state** in which its | | the Pacific | | investment is | | Settlement of | | located, usually | | International | | pursuant to a dispute | | Disputes as an | | resolution clause in | | **arbitration | | an investment treaty | | secretariat** and | | | | mechanism providing a | | Human rights | | variety of dispute | | tribunals (ECtHR, | | resolution services | | Inter-American | | to the international | | system!) | | community (may seek | | | | advise \"who could be | | Individual complaints | | arbitrators\"... ) | | + Inter-state | | | | disputes - alleged | | | | violation/ non | | | | performance | +-----------------------+-----------------------+-----------------------+ **Week 8 -- The Responsibility** of States for international wrongful acts PRIMARY RULE: an international obligation that will be violated by a subject of IL bound by it International Responsibility -\> wrongful act, breaching of IL - State Responsibility - new states and obligations Secondary obligations -requires: attributions to an international subject+ conduct that implies a breach (not damage) Not domestic law required/ relevant in sense of responsibility Special regulation for jus cogens norms (art 40, 41) and erga omnes obligations (art.48) If you have different categories of internat. Wrongful acts, different consequences (int. Criminal law is about individuals, not state structures) \--\> today only \"wrongful acts\", trigger state responsibility How to determine responsibility? -- International obligations -wrongful conduct attributable to a state (art.4-11 ILC) only responsible for their own acts, not of other states/ private individuals! BUT -- *Tehran Hostages* can be held respon. If state has primary legal obligation to offer protection from such acts \+ due diligence to prevent all activities (+ private individuals) from causing significant damage to other state!) - article 4 of the ILC articles, all conduct of state organs is considered an act of the state all three branches of government may implicate the international responsibility - 'organ' is interpreted broadly and includes any person or entity with an official status in the internal law - conduct by low-level state officials as long as they act in an official capacity + acts or omissions of an entity that in practice functions as a state organ -- *Genocide, ICJ, Yugoslavia* SUBJECTIVE ELEMENT: ATRIBUTION +-------------+-------------+-------------+-------------+-------------+ | a\) Organs | b) Persons | c\) Organs | d)Insurrect | e) Conduct | | of the | or entities | placed at | ional | controlled/ | | State (in | exercising | the | movements | adopted by | | accordance | elements of | disposal | (art.10) | a state as | | with the | government. | of a | | its own | | domestic | Authority | State by | For their | (arts. 8, | | law, art | (art. 5, 9) | another | actions as | 11) | | 4) | | State | insureectio | | | | Not an | (art. 6) | nals | If the | | Whatever | organ of | | if they | action is | | legislative | State but | state | reach the | under | | , | empowered | places one | power + | instruction | | executive, | by the | of its | establish | s | | judicial or | state to | organs at | new | or | | other | exercise it | the | government | direction | | functions | / in fact | disposal of | | of the | | | it exercise | another | | state | | Whatever | it because | state (see | | | | position or | of absence | health | | If the | | character | of of. | service) | | state | | in the | Authority | | | acknowledge | | state | | | | d | | organizatio | Individuals | | | and adopted | | n | and | | | its own | | | entities | | | | | Even if | that | | | \+ private | | it's ultra | exercise | | | individuals | | vires | authority | | | , | | (art.7) | normally | | | if somehow | | | exercised | | | linked to | | \- even if | by a state/ | | | or support | | the organ | empowered | | | by state- | | or official | to exercise | | | art.8 | | acted | governmenta | | | | | contrary to | l | | | Under | | orders and | authority = | | | direction/ | | instruction | state | | | control of | | s | cannot | | | state -- | | or in | avoid | | | *Nicaragua* | | excess of | responsibil | | | + | | authority-- | ity | | | *Genocide* | | -conduct | by | | | | | *ultra | outsourcing | | | Acting on | | vires* - | functions | | | instruction | | *Velásquez | that are | | | s/ | | Rodriguez* | properly | | | direction | | | governmenta | | | of state | | \- | l | | | | | determinati | | | | | | on | \- | | | | | of | Commentary | | | | | responsibil | to art. 5: | | | | | ity | content of | | | | | is | powers | | | | | 'independen | granted + | | | | | t | 'the way | | | | | of whether | they are | | | | | the organ/ | conferred | | | | | official | on an | | | | | has | entity + | | | | | contravened | purposes | | | | | provisions | for which | | | | | of internal | they | | | | | law / | exercised + | | | | | overstepped | extent to | | | | | limits of | which | | | | | authority | entity is | | | | | | accountable | | | | | | !! | | | | +-------------+-------------+-------------+-------------+-------------+ CIRCUMSTANCES PRECLUDING WRONGFULNESS Annulment of the classification of wrongdoing (not applicable for ius cogens) = Eliminates the wrongful nature but NOT the obligation to compensate for the damages caused (art. 27) +-----------------------+-----------------------+-----------------------+ | **Consent - Art.20** | **Self Defence - | **Force Majeure - | | | Art.21** | Art.23** | | Of state to other | | | | state to commit | If complies with | = irresistible force | | "wrongful act", given | inherent right to | or of an unforeseen | | freely + clearly | self defence (UNC | event, beyond the | | expressed + before or | art.51) | control of the State' | | while action | | that makes it | | | | 'materially | | | | impossible in the | | | | circumstances' not | | | | available if state | | | | has contributed to | | | | situation or if it | | | | has 'assumed the | | | | risk' | +-----------------------+-----------------------+-----------------------+ **Countermeasures -** Art.22 + 49-54 states forced to enforce their own rights = must be allowed to respond to another state's wrongful acts by taking *countermeasures* - bring wrongful acts to an end (e.g. sanctions) Requirements: - against a state that breached international obligations - *purpose of measure* = induce state to comply with its obligations - temporary + applied that permits resumption of performance of obligations - *some obligations cannot be the object of countermeasures* - proportionality - procedural requirements inlc. state must call breaching state to fulfil its obligations + notify of initiation of countermeasures + offer chance to negotiate + act still present + dispute not before court/ tribunal (make binding decision) article 52(2), urgent circumstances - state may 'take such urgent countermeasures as are necessary to preserve its rights' + terminates as soon as wrongful act has ceased! Non-injured state may also be entitled to invoke responsibility, if obligation is breach of erga omnes norm -- owed to international community as a whole! **Distress - Art.24** = author of act has no other reasonable way of saving the author's life or the lives of other persons entrusted to the author's care.' threat to life and a special relationship between the state organ and the person in distress differs from *force majeure* = can be relied upon when state could in theory fulfil its international obligation but where it would require an unreasonable sacrifice ! cannot be invoked if situation of distress is due to state's own conduct or if the act that constitutes a breach of the international obligation 'is likely to create a comparable or greater peril' **Necessity - Art.25** choice between committing a wrongful act or sacrificing an essential interest of the State = Deliberate and conscious action (difference from force majeure) Conditions: Is "the only way" to safeguard that essential interest Doesn't seriously affect an essential interest of the one who suffer the harm The state did not contribute to the situation The obligation do not exclude this option \[= safeguard an 'essential interest' that is threatened by 'a grave and imminent peril' is, for the time being, to refrain from performing another international obligation that is considered to be of a lesser weight or urgency - state may not 'seriously impair an essential interest of State towards which obligation exists, or of the international community as a whole' + international obligation in question excludes possibility of invoking necessity' + state has contributed to situation of necessity \+ does not cover assertion of military necessity, subject to regulation in substantive provisions in laws of armed conflict\] breach of international obligation = international responsibility -- new juridical relation (first one still exists) BREACH OF SINGULAR / COLLECTIVE OBLIGATIONS (other states have obligation only for serious breach of Jus cogens norms Art.4) \- Non recognition + Non assistance + Coop to end the breach by lawful measures **Injured State (art.42)** - individual state that owns the obligation = the one that suffers the harm erga omnes obligations - State specially affected by the breach or The breach is such that radically change the position of all the others for further perfomance of the obligation +-----------------------------------+-----------------------------------+ | Responsible State has obligation: | \- Cease the act (art.30.a) | | | | | Injured State may Invoke: BREACH | \- Guarantees of Non Repetition | | OF ERGA OMNES OBLIGATIONS, other | (art.30.b) | | states may invoke: (Art.48) When | | | the breached obligation is erga | \- Reparation (art.31) | | omnes to protect collective | | | interests | 1 Restitution (art.35) | | | | | | 2 Compensation (art.36) + 3 | | | Satisfaction (art.37 | +-----------------------------------+-----------------------------------+ Measures to pressure for compliance with the new obligation -- UN Charter Art.41+ 42 Ask for relevant law + cases exam Types of international obligation Erga singulum = reciprocal obligations between two states Erga omnes partes = obligations in relation to a group of states (party to treaty?) Erga omnes = obligations towards the international community as a whole (does not need treaty ?) Countermeasures The Rainbow Warrior case - Arbitral Tribunal, 1990 - Article 54: measures taken by States other than an injured State Article 48 - Invocation of responsibility by a State other than an injured State if: the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or is owed to the international community as a whole 2\. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: \(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and \(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. Articles 55 & 56 - (General Provisions) - Lex specialis: *These articles do not apply* where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State *are governed by special rules of international law.* Article 51 UN Charter - Nothing in the present Charter shall impair the *inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.* **Week 9 - The International Court of Justice** **The judges and the registry** Elected and independent judges, elected by UN MS + others party to ICJ statute 15 judges, term of office 9 years; one-third of the Court, i.e., five judges, is elected every three years + eligible for re-election Voting on judges in SC and GA, absolute majority in both After the President and the Vice-President, the order of seniority of Members of the Court is determined by the date on which their term of office began, and, in the case of judges taking office on the same day, by their age Proposals made by members of PCA, eahc group can propose up to four candidates ICJ may not include more than one national of the same state, elder is opermitted in case of same nationality, ICJ has generally always included judges of the nationality of the permanent members of the Security Council No Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he or she no longer fulfils the required conditions. **Court is a permanent international institution** - Members of court, enjoy privileges + immunities comparable with head of diplomatic mission   **The composition if the court** - May vary! no judge may participate in the decision of any case in which he has previously taken part in any capacity, happens that one or more judges abstain from sitting in a given case, no deputy-judges in the ICJ, no one else is substituted for them   **Parties to the case** **Only states** The Court is open to : --- Member States of the United Nations, ICJ forms an integral part of the Charter ; --- States parties to ICJ without UN member - satisfy certain conditions (GA) on recomm.of SC: acceptance ICJ statute, comply with ICJ decisions + regular contribution to the expenses A case can only be submitted to the Court with the consent of the States concerned   **1. Int. Courts and Tribunals: A Few General Points** Intern. Law different form domestic law - judiciary! + Intern. Courts are mechanisms for settlement of disputes + HR-individuals can bring cases directly! exception rather than rule to settle disputes betw. states - **normally other mechanisms** (mediation, arbitration) court is very **Rigid** mechanism Third party adjudication, having control -- **parties 'loss of control' -** can not make decisions themself + (have to comply), influence outcome is more likely at PCA Does not need to cover all aspects of a dispute - States want ICJ to decide on one legal aspect of whole dispute, not settle whole dispute Multiple options to settle and bring cases, **can split dispute** into different settlement options Solution **based on law**, different to tribunals or negotiation etc. - maybe based on more political/ moral/ diplomatic solution **Costly** for states, million euros...with it for states? Lawyers, evidence, etc.; sometimes for tribunals even more, arbitrary salary **v. ignoring the dispu**te? (send army? Etc.) May be much higher!! **Does not work for all disputes,** ICJ has long list of disputes - states have to wait for a long time + states do not settle their disputes \"privately\" anymore   +-----------------------------------+-----------------------------------+ | ***Organisation*** | ***General Features*** | | | | | *▪ 15 Judges - Elected by the | *▪ Part of the peaceful | | General Assembly and the Security | settlement mechanisms under | | Council from the PCA list (Art. 4 | Article VI of the UN Charter* | | St)* | | | | *▪ Only inter-state tribunal with | | *Up to 2 Judges ad hoc (Art. 31 | general jurisdiction* | | St)* | | | | *▪ Only UN body situated outside | | *▪ Representative of the "main | the geographic spheres of | | forms of civilization + principal | influence ("principal judicial | | legal systems of the world"* | organ of the UN")* | | | | | *▪ 9 years with re-electio; | *▪ Great influence on | | President and Vice-President | clarification/development of | | elected for three years (Art. 21 | public international law ("organ | | St)* | of public international law")* | | | | | *▪ Incompatibilities (Arts. 16 | | | and 17 St / 24 St)* | | | | | | *▪ Registry* | | +-----------------------------------+-----------------------------------+  **Governing Texts (Procedure (proc. Law) and Organisation) - hierarchy** ▪ United Nations Charter ▪ Statute of the Court, connected to UNC ▪ Rules of Court, developed more specific rules ▪ Resolution concerning the **judicial practice of the Court** ▪ Practice Directions   **2. Jurisdiction: General Issues** **Art. 38 ICJ St:. Sources what law to apply:** ▪ International conventions + treaties ▪ International custom - relevant when consent to courts jurisdiction has been expressed by optional closed declaration) + ▪ General principles of law recognized by 'civilized nations', uses less (but see \"good faith\"), more for procedual matters like \"equality\" ▪ Judicial **decisions (may be arbitrary) and the teachings( do not cite them in judgment!)** of the most highly qualified publicists (**subsidiary** means) **Jurisdiction Ratione Personae - who can appear before court** ▪ Only States: **Art. 34.1 St - what is a state? - e.g. palestine? - has allowed for it to litigate infront if ICJ, for this purposes, [DOES NOT mean, UN (or ICJ) accepts Palestine] as a state o.Ä.** Reference to general international law + States Parties to the UN (difficult cases) - Montevideo criteria, statehood! + States appear on behalf of individuals - may not alone, may be expert/ witness o.Ä. It is possible for individuals to get involved in the cases **Article 34.2/3 St:** participation of Ios, may not me party to ICJ! Can only refer information, been asked for information   **Jurisdiction Ratione Consensus** ▪ Principle of consent: Art. 36.1 St: *"The **jurisdiction** of the Court c**omprises all cases which the parties refer to it and all matters [specially provided] for in the Charter of the United Nations or in treaties** and conventions in force"* ▪ Strict principle: the importance of a norm does not give the Court jurisdiction (*East Timor*, 1996), no matter how serious of a breach, does not give per se give jurisdiction to the court ▪**Impossibility** for **third** States to **participate** in proceedings (*Monetary Gold* principle) If e.g. four states are involved in a conflict, only two give jursidiction to ICJ, cannot judge about state three and four involved, may also not take case - did not give consent Lack of formalism - how to express consent to courts jurisdiction **Treaties for the peaceful settlement of disputes** Whereby two or more states agree to settle all of their disputes (or just some) with peaceful settlement options - giving ICJ jurisdiction **Art. 2 Pact of Bogotá:** *"The aforesaid procedures, furthermore, **may not be applied to matters already settled by arrangement** between the parties, or by arbitral award **or by decision of an international court**, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty" \--* (*Bolivia v Chile*, 2015) ! Reopening all cases, does not add to peace and security! And stability **Jurisdictional clauses in treaties - dispute settlement clauses, compromissory clauses** Dispute must concern treaty - Renvoie to the provisions of the Treaty + certain additional questions − matters of State responsibility are left outside of treaty *(Factory at Chorzow, Nicaragua vs. US, Bosnian Genocide...). - breaches of a treaty* − Termination or suspension of the Treaty *(Jurisdiction of the ICAO) - Law of treaties (VCLT)* *− Principles of int. law mentioned in the treaty?* *− Other rules of int. law by way of systemic interpretation (Oil Platforms case)?*   **Optional clause declarations (Art. 36.2 St)** Unilateral statement by state, whereby ist accepts courts jurisdiction with respect to every dispute which submitted the same declaration, coincide optional clause declaration, with specific other state (?) \+ \"always list of reservations to declaration - is sovereign decision of states\" - bring to SC, refers to ICJ Origin in the negotiations of the Statute of the PCIJ: no agreement on compulsory jurisdiction "In relation to any other State accepting the same obligation" (Art. 36.2 St) In force at the moment of institution of proceedings - "Surprise attacks" possible, suddenly accept to bring case against other state, bring case - some clause declaration protect from that Reservations: search lowest common denominator, one case, non of the two parties has excluded, is irrelevant who made reservation/ submitted the case   **Special agreements** ***Forum prorogatum*** (Art. 36.5 St) - state brings case against other state, court does not have jursidiction, one state has not expressed consent, respondend accepts courts jurisdiction for this special case   **Jurisdiction Ratione Materiae** **= \"subject-matter Jurisdiction\" -**  [[court]](https://en.wikipedia.org/wiki/Court) can only hear and decide cases of a particular type - so ICJ only if treaty o.Ä. consents \--\> case must be within the meaning of the very treaty   **Dispute =** "a disagreement on a question of law/ of fact, a conflict of legal opinions or of interests between two persons" (*Mavrommatis*, 1923) \--\> 'A mere assertion is not sufficient to prove the **existence of a dispute (is definded, very careful)** any more than a mere denial of the existence of the dispute proves its non-existence Dispute is = must shown that the claim of one party is **positively opposed by the other**' (*South West Africa* 1966 (Preliminary objections) iexpress in a legally discrete term the matter in connection with which the Court is empowered to make a judicial decision...' (*Rosenne*) \--\> if there is no dispute, not case for ICJ! Needs to be dispute! -states shall talk to each other beofre going ot court   **Monetary Gold Principle Admissibility** ▪ **France, UK and USA** (Tripartite Commission for the Restitution of the Monetary Gold seised by Germany since 1938) ▪ **Albania:** claimed ownership of monetary gold seised in Rome in 1943 ▪ **Italy:** had claims against Albania, but feared a case by Albania before ICJ **In this case, Albania's interests would be not only affected by a decision, but would form the very subject-matter of the decision** *Art. 47 ASR* **Subsequent Case Law** ▪ *Nicaragua v United States* (collective self-defence) ▪ Third parties: Honduras and El Salvador ▪ ***Nauru v Australia* (Tripartite commission responsible for management of phosphate mines in Nauru** ▪ **Third parties: UK and New Zealand** ▪ *Portugal v Australia (East Timor Case**)*** (breach of self-determination of East Timor as a result of the conclusion of a treaty in respect to exploration of oil and gass off the coast of East-Timor) ▪ Third party: Indonesia 1819 The interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru\'s Application... In the \[*Monetary Gold*\] case, the determination of Albania\'s responsibility was a prerequisite for a decision to be taken on Italy\'s claims... In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court's decision on Nauru's claims against Australia *ICJ, Certain Phosphate Lands (Nauru v Australia, 1992, para. 55)* *3. Procedure in Contentious Cases (I): Application* States as parties against one ore more states (?); Languages: English or French (**Art. 39 St**); **Application or written notification of the special agreement** (**Art. 40 St**) Communication to the other party and the UNSG − **Art. 40.1 St + Art. 38 RoC:** the Application shall specificy as far as posible: *Legal grounds of jurisdiction*; *Nature of the claim*; *Statement of facts*   +-----------------------------------+-----------------------------------+ | **Written Proceedings** | **Incidental Proceedings (?) = | | | which take place as part of | | ▪ Blend between the continental | mainproceedings of merity, | | system and the Anglo-American | concerning certain aspects of | | common law system | courts proceeding:** | | | | | ▪ One/two rounds of pleadings | Preliminary objections (Arts. | | (Art. 43.2 St 'if necessary'). | 79-79*bis-79ter* RoC) | | | | | ▪ Deadlines: agreed with the | Provisional measures | | Parties between courts | | | | Intervention (Third State) | | ▪ No word-limits | | | | Counter-claims - respondent | | ▪ After the closure of the | against applicant | | written proceedings, no document | | | may be submitted by either party | Special reference to the Court | | (Art. 56 RoC) | | | | Discontinuance | +-----------------------------------+-----------------------------------+  **"IN THE EVENT OF A DISPUTE AS TO WHETHER THE COURT HAS JURISDICTION, THE MATTER SHALL BE SETTLED BY THE DECISION OF THE COURT" -** *Article 36 ICJ Statute; 1. Preliminary Objections: Art. 79* **RoC** \- *Motu proprio* by the Court (Art. 79 RoC) \- By a party (Art. 79*bis*) (systematically raised) \- No later than three months \- Proceedings suspended \- Possibility to be heard on the merits \- Decision (Art. 79*ter*). Esta foto de Autor desconocido está bajo licencia CC BY-SA-NC   **Preliminary Objections** **= proceedings on which one of the parties questions jurisdiction of court:** Jurisdiction; Admissibility; General admissibility (G. Abi-Saab): questions of judicial propriety (*Marshall Islands Cases* in the relation to negotiations on a multilateral issue)   **2. Provisional Measures** **Frequently used, Give publicity to parties taking measures, court has to decide quickly until ICJ really give judgment** **Criteria, so not abused: Art. 41 Statute.:** **preserve the respective rights** of **either party** 2\. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the SC." - are binding! **Requirements** - **Prima facie jurisdiction - courts needs to be satisfied it has jurisdiction** - **Plausibility** (reasonable prospect of success on the merits) - rights sought by party are plausible, have rights for this "At this stage of the proceedings, the Court, however, is not called upon to determine definitively whether the rights which Ukraine wishes to see protected exist; **it need only decide whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are plausible"** (*Ukraine v. Russia*, Order, para. 64) - Risk of **irreparable prejudice to the rights** asserted by the Applicant/Respondent (*Pulp Mills*) - Urgency: **"real and imminent risk" - Reality of Risk!** - Link between measures and rights (Arbitral Award of 31 July 1989) - suitable to protect right - Non-aggravation of the dispute - additionally, parties may not do anything to worse the dispute, diplomatic injunction **Example** of Provisional Measure: The Republic of the Union of Myanmar shall... take all measures within ist power **to prevent the commission of all acts within the scope of Article II of this Convention \[on Genocide\]**, in particular... (23 I 20) '**Take all measures** at its disposal to ensure that Mr. Jadhav **is not executed'** (18 V 17) Each Party shall r**efrain from sendin**g to, or **maintaining in the disputed territ**ory... any personnel, whether civilian, police or security (8 III 11)   **3. Intervention (of Third States)** **Article 62 ST:** **Interest of a legal nature** **Which may be affected by the decision**; **Judgment binding on the third party** **Article 63 St:** **Construction of a Convention (notification)**; **Right to intervene in proceedings**; **Judgment binding on the third party, only as far as interpretation of treaty**   **4. Counter-Claims** ?? **Procedure (III) - Oral Proceedings in Den Haag** **Procedure (IV) Deliberation** **4. The Judgment and ist Implementation** **-binding in parties, only, in respect to particular case** ▪ Language ▪ **Art. 94. UNC**: obligation to comply 94.2 - UNSC may ensure parties comply with judgement Often requires subsequent steps (demarcation, negotiations on reparations), Court does not go into details on how to implement judgement Means of enforcement to be decided by each party (*Avena*, *Jadhav*) Willing/unwilling parties to comply   ▪ **Art. 59 St.:** *res judicata* between the Parties (*dispositif*): "The decision of the Court has no binding force except between the parties and in respect of that particular case" − In practice, the Court deals with its previous decisions as precedents (the Court will not depart unless there are reasons. Marshall Islands vs South-West Africa) See case study- Salamonstate -- regarding fishing, reservation does not apply If optional clauses overlap -- Jurisdiction applies of ICJ -- but treaty?? UNCLOS content does not apply \[if coloniesd states is party to treaty, gets free from colony = was not party to treaty!\] - Surprise attack is not illegal, are possible, but states may exclude these in their optional clauses! - Facts may not be applied retroactively no case! - If one way of consent makes the case apply, one does not = conflict! Cannot force state to ICJ -- justifies they gave consent, with 1 valid one! (+ see forum prep...) - Optional clause declaration do NOT limit "topic" of jurisdiction, ANY question of IL and Customary Law may be brought self determination - Given consent trough treaties? -- consent only applies to treaty and its conent!, NO other questions may be discussed! **Week 10** **International Administrative Law ("IAL")** has evolved over time to deal with employment-related disputes ("IGOs") administrative bodies perform public duties +-----------------------------------+-----------------------------------+ | Administrative law is mainly | The principles that are common to | | about | most European legal systems are: | | | | | - Administrative authorities | 1\. The impartiality principle | | and their civil servants | | | | 2\. The right to be heard | | - How administrative | | | authorities get public powers | 3\. The principle to state | | | reasons | | - Procedural rules for the use | | | of public powers | 4\. The prohibition of | | | *détournement de pouvoir* | | - Substantive requirements | | | administrative authorities | 5\. The equality principle | | have to take into account | | | when using their powers | 6\. The principle of legal | | | certainty | | - Objection procedures and | | | judicial protection against | 7\. The principle that | | administrative action | legitimate expectations raised | | | by the administration should be | | Legislative powers \--\> | honored | | attributes powersto Executive | | | powers (Administration) | 8\. The proportionality | | | principle | +-----------------------------------+-----------------------------------+ +-----------------------------------+-----------------------------------+ | Administration = executing what | **Topics of Administrative Law | | is prescribed in the law | \[focus on EU\] - Exam question! | | | - \"What is administrative Law | | **The role of the State | about\" (see book!)** | | throughout history** | | | | Administrative authorities and | | 19thcentury: States focused on | their servants | | maintaining the law and order | | | within the country and | Powers of administrative | | **protecting the territory** | authorities | | against invasions | | | | **Procedural rules** applicable | | [Post-industrial | to public powers | | revolution]: | | | additionally, p**roviding | **Substantive requirements** | | community services** + | public authorities must follow | | **distributing wealth a**mong its | | | citizens (see housing, child | **Judicial protection** against | | labour, safe work conditions) | administrative action | | | | | Nowadays, States provide public | | | goods and services | | | | | | Expectation moved =\> Police | | | State \--\> Welfare state | | | (redistribute wealth among | | | citizens) \[child loans, study | | | Finnicization, unemployment, | | |...\] | | | | | | Vary from state to state! | | +-----------------------------------+-----------------------------------+ **Instruments and Powers at the disposal of Public Administration (rewatch - min 26)** Administration serves the public interest -- what is that'? Legislator empowers administrative body How the administration can effective its policies? Competences - **Public Law v Private Law** Context in Liberal Orders: The state holds a dual role, acting as both a facilitator and a potential limiter of freedom, multilevel governance [Private Law] = Governs **relationships between individu**als and private entities, covering areas like contracts, property, and family matters [Public Law =] Manages **political power,** its structural organization, and **interactions with citizens - exclusively Admin. Competence (?)** Rewatch min 35 Privatisation of e.g. construction work -- needs to enter into contracts with private parties -- Private Law competence, private actors would exercise task that would be administration comp. (energy, prisionny,e.g) **Public law: constitutional and administrative law** +-----------------------------------+-----------------------------------+ | Constitutional Law: | Administrative Law: | | | | | Defines the state\'s structure, | Purpose: **Implements and | | fundamental rights, and core | enforces constitutional | | values. | frameworks and principles** | | | | | Significance: Expanded beyond | **Continuous Evolution:** | | traditional public law during the | Adapts and redefines | | 20th century | administrative processes to | | | **meet societal needs** (Sabino | | | Cassese, New paths for | | | administrative law: A manifesto, | | | International Journal of | | | Constitutional Law, Volume 10,) | +-----------------------------------+-----------------------------------+ **Administration Within the Trias Politica** **= separation of Power, see Montesquieu (abuse of powers, corruption)** - The construction of a new power plant in an industrial area -- +-----------------------+-----------------------+-----------------------+ | Requirements for | Application of the | The courts can check | | environmental and | prescribed procedure | whether the | | construction | by law | **executive | | permission -- | (decision-making) | (Administration)** | | Environmental Law | | remains within the | | | If the permit is | limits imposed by law | | **Legislator** | issued, the | | | | administration will | **Judiciary** | | | also monitor the | | | | operation of the | | | | power plant - | | | | **Administration** | | +-----------------------+-----------------------+-----------------------+ **Public Administration (min 52 - 59)** Civil servant employment (need certain level of protection -- impartiality + corruption; can stay in position, different from election! - continuity) - Administration Legal guarantees of civil service employment**: Life tenure** absent grave misconduct (allows for certainty, continuity, impartiality+ safety) Privatization - outsources services to private companies (food, cleaning, etc) - (see USA), are not civil servant! +-----------------------------------+-----------------------------------+ | **Administrative Law beyond the | **European Administrative Law** | | state border (?)** | | | | Multilevel Governance: there | | Administrative Law has been | are **several levels of | | seen as: Designed to a unique | administrative decisio**n-making | | administrative system + A **body | | | of law on its own** | Direct Administration: EU law is | | | adopted and executed at EU level | | \--\> there would be no need to | | | look outside (no comparison or | **Indirect** Administration: EU | | transplant) | law is executed **through the | | | national administrations** | | Today **Comparative | | | Administrative Law** is | | | recognized in legal scholarship | | | and practice | | | | | | \--\> Reasons for change: | | | Globalization (more in slide 16) | | | + Global Problems (Climate | | | Change, Refugees, Social Media, | | |...) | | | | | | Enhanced international diffusion | | | of information, constant | | | connection Live + Internet | | | | | | \+ Cross-border health, safety | | | and environmental issues (need | | | for common or parallel responses) | | | - Covid 19 | | +-----------------------------------+-----------------------------------+ ------------------------------------------------------------------------- ------------------------------------------------------------------------ Global level EU level National level State/provincial level Local level **Multilevel governance, Shows influence + enforcement of Admin. Law** ------------------------------------------------------------------------- ------------------------------------------------------------------------ **Global Administrative Law** +-----------------------------------+-----------------------------------+ | "Can We Sustain Globalisation?" | Why Global Administrative law? | | report claims to have come across | | | more than 5,000 definition of | Address the **consequences of | | Global. SustainAbility\'s | globalized interdependence - | | favourite definition: | Covid, Climate Change etc.)** | | Globalisation = **"is the freer | | | movement of goods, services, | Transgovernmental regulation | | ideas and people around the | and administration (customs etc.) | | world"** | | | | Which areas needs this type of | | | regulation? | +-----------------------------------+-----------------------------------+ Accountability Deficit - Types of response: extension of domestic administrative + the development of **new mechanisms o**f administrative law at the global level to **address decisions and rules made within the intergovernmental regimes**   "The notion of a**n accountability defici**t is particularly associated with the a**bsence of political control by democratically elected political representatives** (where it is linked with a democracy deficit)." Richard Mulgan **GAL comprises:** "the mechanisms, principles, practices, and supporting social understandings that **promote or otherwise affect the accountability of global administrative bodies**, in particular by ensuring they meet adequate standards of **transparency, participation, reasoned decision, and legality,** and by providing **effective review of the rules** and decisions they make." **Questions** 1. **What is administrative Law? -- "verwaltungsrecht"**  governs the activities of [executive branch agencies](https://en.wikipedia.org/wiki/Government_agency) of government + includes executive branch rule making \"regulations\", adjudication, and the enforcement of laws -- deals with enforcing legal decisions, how to execute the legislations Respect public interest/ purpose, all decisions shall aim for this! Legal remedies to protect personal rights + interests, against possible use of abuse state directly interfering with individuals life Provides the legal framework for interactions of the state with society, based on this branch of law, has defined number if powers and functions, fulfills them in public interest + has predetermined procedure to solve conflicts originating from the use of admin. Powers **What is a welfare State?** equalizing living standards between similar families with different numbers of workers and dependents + horizontal equality case for the welfare state is extremely strong + pays out benefits wealth redistributed to strengthen economy -- ensure equal livelihood, basics for living **Why is it relevant when studying Administrative Law?** Enforced by administrative law... + adminstr. Is responsible for ensuring welfare state + grant welfare to individuals -- who, what, how much, ensure non discrimination - Who is eligible for granted... welfare sums. -- child allowance, study allowance Responsibilities of Admin. Law: individual and public interest -- public health e.g. Costumer getting wrong diagnosis + investers losing money -- consumer protection -- fraud + Giving permits, check whether idea works Responsible for consumer protection, both the product + promises, harmful products etc. Right to strike? Environmental law? Extinction rebellion -- right to protest -- how encountered? Who to inform? Which way? Constitutional law established the fundamental right to advocate for environmental causes Admin. law outlines specific guidelines, how law enforcement should act on certain situations and what tapes of admin penalties may apply Which option does [not] represent a topic covered by Administrative Law? - Merger contract among enterprises private law act, exercised by private law subjects **Week 11** Required reading: Legality Principle- must on a legal basis, legislation sets limits to power conferred to administration + princ. Conferral EU + MS may implement EU regulations **Tax law-** prescribes exactly which percentage of your income has to be paid in income tax and what may be deducted from your income before taxes are calculated - **administration has limited discretionary power** **Plan for the use of land -** Much is left to the administration; Therefore, the rights and duties of individuals who are affected by the land-use plan are not regulated concretely in legislation **- high level of discretion left with administration** Whenever it take decision, it must respect **fundamental rights + general principles of administrative law:** +-----------------------------------+-----------------------------------+ | Procedural Principles | Substantive Principles | | | | | 1\. The **impartiality** | 4\. The prohibition of | | principle | *détournement de pouvoir + 5.* | | | The equality principle | | 2\. The ri**ght to be heard** | | | | 6\. The principle of legal | | 3\. The principle to **state | certainty | | reasons** | | | | 7\. The principle that | | | legitimate expectations raised | | | by the administration should be | | | honored | | | | | | 8\. The proportionality | | | principle | +-----------------------------------+-----------------------------------+ Legal review: if they use a power for a purpose other than that for which it was conferred, e.g., where a building permit is refused because the mayor does not want a political enemy to become his neighbor; An administrative body can also act unlawfully outside the sphere of its public law powers when it closes a bridge for maintenance for a period which is unnecessarily long and is to the detriment of the shop owners in the neighborhood (violation of the principle of proportionality) or when it discriminates in accepting tenants for houses owned by the city (violation of the principle of equality).   **Fill in the gaps the Law leaves - Discretion and the principles how to deal with these gaps** **General Principles of Administrative Law** The tasks and competences of the administration has increased, have to deal with a lot of aspects of society, see welfare state \--\> More powers to regulate but also enjoy greater freedom in exercising these powers The use of public power differs from one field of law to another When taking a decision, the administration: Is bound by the c**onditions and limits explicitly mentioned in the applicable general r**ules Has to respect **fundamental rights** of those affected by the decision, **general principles of administrative law** **\--\> judiciary review is based on whether administration has respected these elements** Originally, developed in case law, Move towards codification European legal systems recognize basically the same general principles of administrative Even though the administration has discretionary power, some **legal limits are imposed** on the administration in the exercise of its powers **Prevent the abuse of highly discretionary powers - c**ontrol the administration, set limits to its actions + provide generally applicable safeguards against the abuse of admin. Competences **Discretionary Power** ✓ **Discretion refers to a freedom of choice on the part of a decision maker - administration, has high level of impact on life** ✓ **Discretion must be exercised by the person to whom it is given and not by anyone else, can not be passed on** - \"The decision maker has a choice to make; and yet\" - \"Since it is a discretion, the decision maker is to act responsibly and not arbitrarily (willkürlich)\" - has to provide legal basis and support, can not just randomly decide on things - \"Every public power must be exercised **responsibly**, and every public decision ought to be made **reasonably**. That means deciding in **the public interest,** and with respect for the **private interests of persons affected by the decision \"** - \"For a public authority to **have a discretion means that it is *up to that authority to decide*** what is in the public interest, and to determine what is required by respect for private interests." - decides itself what it considers \"public interest\" **Discretion** Advantages: Flexibility, speeds up process - Government policies may be more effectively implemented Disadvantages: Opens the way for inconsistent decisions (depend on the individual in office)- may put citizens as mercy of the administrator (cannot be certain about outcome) + can be misused by decision makers - not legal! (damage could happen until remedy) **General Principles of Administrative Law** Procedural Principles = Address **decision-making process** + way in which interests of individuals are taken into account during process HOW **Procedural Principles: EU level** Good administration: Fulfil the purpose of public interest Early **case law of** the CJEU has referred to notions of '**good**' (Case 32/62), '**sound**' (Joined Cases 1-57 and 14-57), or '**proper**' (Case C-255/90 P) administration Recognized as a **General Principle of EU Law (Article 6(3) TEU)** + as a **binding fundamental right (Articles 41 CFR)** Article 41 CFR Article 6 3 TEU ----------------------------- -------------------------------------------------- ---------------------------------------------------- Material scope Single case decision making \+ general acts Addresses of the obligation Institutions, bodies, offices, agencies of Union \+ MS when acting within scope of EU law - broader **41 CFR Right to good administration:** +-----------------------------------+-----------------------------------+ | 2. *Every person has the right | **- the duty of care -** Core | | to have his or her affairs | feature: | | handled **impartially, fairly | | | and within a reasonable | "obligation of administration | | time** by the institutions, | **impartially and carefully** | | bodies, offices and agencies | establish + review relevant | | of the Union.* | factual & legal elements, prior | | | to making decisions/ taking | | | steps" (Hofmann, p. 25) \--\> No | | | arbitrary action, No unjustified | | | preferential treatment and No | | | conflict of interest | | | | | | \--\> can exist for equality, | | | people need to be treated | | | differently but needs justifiable | | | + (Fair and within a reasonable | | | time (normally in legislation | | | prescribed)) | +===================================+===================================+ | *2. This right includes:* | **- Hearing and Access to One's | | | File** | | *(a) the **right** of every | | | person **to be hear**d, before | The right to a fair hearing + | | any individual measure which | must receive an exact and | | would affect him or her adversely | complete statement of the claims | | is taken;* | or objections raised | | | | | *(b) the **right** of every | must given opportunity to make | | person to have **access to his or | its views known 'on the truth and | | her file**, while respecting the | relevance of the facts and | | legitimate interests of | circumstances alleged + on | | confidentiality and of | documents used... | | professional and business | | | secrecy* | must given right of access to | | | documents and the file which can | | | be limited in case of | | | confidential information of third | | | parties | | | | | | Before any individual measure | | | (*audi alteram partem or audiatur | | | altera pars*) are taken | | | | | | Right to be informed - full | | | information which may affect | | | person position, especially with | | | sanction | | | | | |... of: - the administrations | | | response to complaints/ | | | representation | | | | | | Outcome of procedure and of | | | decisions made + All matters | | | necessary for their defence incl. | | | Right of appeal | +-----------------------------------+-----------------------------------+ | 1. *(c) the **obligation** of | **- Reasoning of decisions** | | the administration **to give | | | reasons** for its decisions* | The obligation to provide grounds | | | for the action taken - Clear | | | reasoning | | | | | | Allowing the persons concerned to | | | defend their rights | | | | | | **Duty to give reasons | | | (legislative acts also!, give | | | justification by referring to any | | | kind of treaty o.Ä.)** | | | | | | "I regard the giving of | | | satisfactory reasons for a | | | decision as being the hallmark of | | | good administration." - arbitrary | | | decision, unfair etc. need to be | | | justified is procedural step that | | | informs people affected by a | | | decision (and, potentially, the | | | public) of the substance of a | | | decision | | | | | | Mind concentration - the | | | resulting decision is much more | | | likely to be soundly **based on | | | the evidence,** decision-makers | | | will **carefully think about the | | | reasons for taking a decision and | | | justifying** them (obligation to | | | respond to question why? -- | | | justified = more based on | | | evidence and avoids biased = | | | sound decision is higher) | | | | | | **Fairness** requires that the | | | parties should be left in no | | | doubt why they have won or lost | | | no reasons which motivated | | | decision | +-----------------------------------+-----------------------------------+ **Duty to give reason in Treaty** - Article 296 TFEU "**Legal acts shall state the reasons** on which they are based and shall r**efer to any proposals, initiatives, recommendations, requests or opinions required by the Treatie**s." Precedent: Case C-269/90 TU München v Hauptzollamt München Mitte \[1991\] ECR I-5469, paras. 14, 26.: '\[T\]he statement of reasons must **disclose in a clear and unequivocal fashio**n the reasoning followed by the Community authority which adopted the measure in question in such a way as to **make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to enable the Court to exercise its supervisory jurisdiction.** **Procedural Principle - Transparency of Information** Sunshine laws or **freedom of information acts** exist in most countries **making government held information accessible to public** The same acts/laws also govern **the exceptions of the** main rule to protect sensitive information E.g.: National Security Transparency of (governmental) information is a pre-condition for both a fair and **accountable administration** and a functioning, participatory democracy = only if having access to information we can hold admin. Accountable, challange -- is in line with public interest?   Right of Access to Documents -- EU Level General right of access to documents under **Articles 42 CFR and 15(3) TFEU** **Regulation 1049/2001** issued on the basis of Article 15 TFEU is the general legislation on access to documents (in exam doc) Scope (Art. 2): "All **documents** held by an **institution,** drawn up or received by it & in its possession, in all areas of activity of the EU" **"The institutions"** Article 1 (a): **European Parliament; European Commission; Council of Ministers** **"document"** Article 3(a): "any **content whatever its medium** (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a **matter relating to the policies, activities and decisions falling within the institution\'s sphere of responsibility"**   B**eneficiaries** (who may?) Article 2(1): "Any **citizen of the Union,** and any **natural or legal person residing or having its registered office in a Member State,** has a **right of access to documents** of the institutions, subject to the principles, conditions and **limits d**efined in the present Regulation" **Absolute exceptions** Article 4(1): The institutions **shall refuse access t**o a document where disclosure would undermine the protection of: \(a) the **public interest a**s regards: public security, defence and military matters, international relations, the financial, monetary or economic policy of the Community or a Member State; privacy and the integrity of the individual (...)" **Relative exceptions** Article 4(2): "The institutions shall refuse access to a document where disclosure would undermine the protection of: **commercial interests** of a natural or legal person, including intellectual property, **court** proceedings and legal advice, the purpose of inspections, investigations and audits **unless there is an overriding public interest in disclosure =** should be disclosed (Admin decides on that, if there is overriding public interest) Art. Gives time limit to disclose document of requested, if no answer = rejection of request Administration has to react, cannot take forever! Internal appeal possible (regul.!) for access of documents -- COMM has to reconsider access to documents; still unlawful (?) Confirmatory application - Bring case to general court (COMM rejects access to doc )- Plaumann requi. (individual + directly concerned) **Week 12 part 1 -- Substantive Principles -- Content of Administrative Decisions** Rule of law is the sense that courts should act as a check on the worst excesses of government decision-makers need to understand the limits of governmental powers Substantive principles are important to challenge incorrect, unjust, or unreasonable governmental (admini.) decisions **Rule of Law:** Administration needs to respect purpose and limits set down in laws (legisl.) + Courts need to enforce these limits Everyone is bound by and entitled trough publicly made laws, taking effect in the future Admin. authorities receive certain competences from the legislator pursue public goals and general interests + REFRAIN from violating the law, including the basic rights of individuals allocation and execution of powers are regulated by law Sovereignty lies with the people, and governments have only the powers given to them legal limits on government actions should only able to act where has legal power (inlc. basic administrative decisions) !Legality Principle - the administration's competence to act must have a basis in legislation - legislature provides necessary instruments + sets limits of the powers conferred upon the administration Admin. should - procedurally and substantively accountable before the courts (263 TFEU -- on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any **rule of law** relating to their application, or misuse of powers) **LEGAL CERTAINTY** = rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly Case C-308/06 The Queen (on the application of Intertanko) v Secretary of State for Transport \[2008\] ECR I-4057, \[69\]--\[80\] know for sure what to excpect + what is i/legal - know what consequences their actions have - **law needs to be clear and precise** New rules only for future, **non retroactive effect of EU law**, 297 (1) TFEU \- shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication = if it has not been published, does not have legal effect! Exception to that: where the **purpose to be achieved so demands** and where the **legitimate expectations of those concerned are duly** respected. " (Case 98/78 Racke, paragraph 20) \[e.g. admin would like to benefit agra e.g. difficult season -- retro effect\] **LEGAL 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"** (Case T-357/02 para. 98) if **the public interest in the retroactive effect overrides the private interest** in the maintenance of the existing legal situation Revocation of acts (???) of administration or applicant (?) Lawful Acts: in principle not be revoked (see Craig, pp. 607 -- 613), have been implemented according to law! -- exeption, can be revoked, ver very rare!! Unlawful Acts: "permissible provided that the withdrawal **occurs within a reasonable time** and provided that the institution from which it emanates has **had sufficient regard to how far the applicant might have been led to rely on the lawfulness of the measure**". (Case T-251/00 Lagardère and Canal+ v Commission, para. 140) -- may be fraudulent?, was not correct information (?), error in competence -- individual was under impression act was lawful Needs to be remedied, If not according to law! **Legitimate Expectation! -** Have to protect expections on outcomes by people -- legal certainty Is General Principle of EU Law: Case 111/63 Lemmerz-Werke \[1962\] ECR 883 Very important when an administrative decision is cancelled or revoked -- whether claimant was under correct impression that outcome would become real, not hypothetical e.g no promise you get a 10; bur actually written in law Must be respected! - Requirements: Justifiable reliance: Case T-176/01 Ferriere Nord Spa v Commission you have to have an Affected Interest: Case 74/74 CNTA v Commission \[1975\] ECR 533, para. 44 \[question of subsidies, aids, building, health,\] **Priority for the protection of the expectations over the interest of the Union**