Unit 3 PIL - 2 Past Paper PDF

30/09/2024 What are International subject? International subjectivity (I) Subject of PIL: those entities that are the addresses of international legal norms, partecipate in their elaboration process and have legal standing to claim fort their non-compliance or incur international responsibility if t...

30/09/2024 What are International subject? International subjectivity (I) Subject of PIL: those entities that are the addresses of international legal norms, partecipate in their elaboration process and have legal standing to claim fort their non-compliance or incur international responsibility if they are the ones who violate them. -> entity holding international rights and obligations, with the capacity to A. uphold their rights by bringing international claims B. Be held responsible for international wrongdoing International subjectivity (II) States: main subjects of PIL - “Primary” and “original” subjects of PIL - Only subjects with full capacity: all rights, duties and competences under PIL International Organizations (IOs, IGOs) - Derivate and limited subjects - Functional legal personality Other subjects with certain international legal personality - Entities which can potentially become States (e.g. de facto regimes) - Certain subjects sui generis (e.g. Holy See, Order of Malta*) - Individuals (have limited power) (human rights law/international criminal law) - Certain groups of individuals (e.g. peoples, indigenous peoples) Taiwan-> non è considerato uno stato, ha un governo legittimo (è considerato un prolungamento della Cina) Taiwan is considered a de facto sovereign state, but not de jure in the international system, due to the lack of broad formal diplomatic recognition and political pressure from China. Il Stato di Palestina ha uno status complesso e controverso nel diritto internazionale, simile in alcuni aspetti a quello di Taiwan, ma con alcune differenze cruciali. In international law, the State of Palestine is recognized by many but not all, and its effective existence as a sovereign state is limited by the lack of complete control over the territory and the complex situation of the conflict with Israel. *Malta had a territory that it had lost but today is still considered a subject of international law B) The State as primary subjects of PIL States: the main subjects of PIL and, traditionally, considered to be the only ones. Primary or “original” subjects of PIL. - States are the only subjects with full legal capacity: they have alla rights, duties and competences under PIL - State sovereignty: two dimensions A. Internal: State is highest authority within its territory and has the exclusive right to exercise public authority (executive, legislative, judicial) over this territory and its population, i.e. States have jurisdiction over the territories B. External: 1) Independence: a State cannot be submitted to the authority of another State without its consent  2) All States are considered to be legally equal (“sovereign equality of all States”) 3) Principle of non-intervention in domestic affairs Elements of Statehood There is no legal definition of the State in PIL. But there are a series of generally recognized criteria. Art. 1 Montevideo Convention on the Rights and Duties of States of 1933: The state as a person on international law should possess the following qualifications: A. A permanent population B. A defined territory C.Government D. Capacity to enter into relations with other states Elements of Statehood: population - Each State needs a permanent population - Population: a group of people who permanently inhabit the territory of the state - Relevant is the legal and political link of nationality - Size of the population is irrelevant for PIL - People’s Republic of China: 1,425,671,300 inhabitants - Tuvalu: 11,810 inhabitants Elements of Statehood: territory - Each state needs a specific territory - Territory: spatial basis on which the State exercises its sovereign competences - Must be stable and determined, with an established border - Encompasses land, sea and air space - Extent or nature of(continental, insular…) is indifferent - Federation of Russia: 17,125,191 km2 - Principality of Monaco: 1.95 km2 Rose Island (mai riconosciuto come stato perché è un’istallazione artificiale e fondamentalmente non ha un territorio suo). Giorgio Rosa ha dichiarato quest’isola artificiale come stato nel maggio del 1968 e nel giugno la polizia ha occupato la piattaforma e l’ha tirato giù. Elements of Statehood: government - Every state needs a government/political organization - Government: institutional organization through which the functions of the state are guaranteed both inside and outside the state - Set of organs that guarantee the functions of the State - Must be effective, but principle of continuity (e.g. failed states) Yemen is undoubtedly recognized as a sovereign state in international law, but its ability to govern and provide protection and rights for its people is seriously compromised by the ongoing civil war. The population suffers enormously from the lack of a functioning government, widespread violence and humanitarian crisis. - Form of government and internal organization are indifferent Elements of Statehood: capacity to enter into international relations - Existence of (external) sovereignty - State must have the external capacity to act legally independently of other states and in accordance with the law (for example Texas, while having a high degree of internal autonomy as a federated state of the United States, has no external capacity to act legally or diplomatically in the context of international law) - Not the case, e.g., with the federated states of a federal state - Expressions of sovereignty: - sovereign equality between states - principle of non-intervention in the internal affairs of another state - principle of independence (exclusivity, autonomy and full state competence) A singular case: Vatican City and the holy See Tutti e due sono soggetti del PIL Vatican City= State - Territory (0.49 km2) - Population ( unilateral act done by one state or a group of a state. A free act by which one or more States verify the existence on a given territory of a politically organized human society, independent of any other existing State and capable of observing the prescriptions of PIL, thereby expressing their will to consider it as a member of the international community. - the existence of a State is independent of its recognition (declaration character) - BUT: a (still) unrecognized state cannot fully exercise certain rights, as its capacity to act is more restricted (certain constitutive effect) Recognition of States: characteristics - Discretionary act: no obligation/right to recognize - Relative character: produces legal effects only with respect to the State that receives it - Limits: - Premature recognition may constitute interference in the internal affairs of another State - Obligation not to recognize entities created in breach of ius cogens Recognition of States: types - Form of recognition is freely decided by the State - Can be express or implicit, by unilateral act or treaty - example: 1993 tripartite traete of goodwill, friendship and co-operation between S,F and Andorra - Grades of recognition: - De iure/definitive recognition: irrevocable act, modifiable only in the event of the definitive disappearance of one of the constituent elements of the State - De facto/provisional recognition: provisional recognition that can be modified once it has been carried out Recognition of governments: concept Recognition of a government: a free act by which one or more States recognize that a person or group of persons is in position to commit the State they wish to represent and which they certify their willingness to maintain relations with them. - The question of recognition of a government arises in the face of a change of government that is contrary to the internal legality of a state (e.g. coup d’état, revolution, etc.) Recognition of governments: approaches - Legality vs. effectiveness - Doctrine of legality (Tobar Doctrine)-> no recognition of a government if it does not demonstrate that it enjoys the support of the whole country - Doctrine of effectiveness (Estrada Doctrine)-> tacit recognition of a government coming to power through unconstitutional change of power (example: keeping diplomatic agents in a country after a coup d’état) - Spanish practice: tendency towards the Estrada doctrine 14/10/2024 State immunities: principle and modalities - Par in parem non habet imperium (an equal has no power over an equal) - = principle by virtue of which a State cannot be subject to the jurisdiction of another state - Consequence of the sovereign equality of states - Modality: - Immunity from jurisdiction: a foreign State cannot be sued before the courts of another state. Exception to the jurisdiction of domestic courts - Immunity from enforcement: the foreign State and its assets cannot be object of enforcement measures/application of administrative/judicial decisions by the bodies of the territorial State. Stete immunities: sources United Nations Convention of the Jurisdictional Immunities of States and Their Property (UNGA Res. 59/98, 2 December 2004) - 23 States parties (Spain: 2011) - Not in force - Important reference point (codified customary law) Customary international law State immunities: immunity from jurisdiction - Immunity from jurisdiction= restricts/relative immunity - Absolute concept of immunity from jurisdiction is now a minority view - Distinction between: Acts iure imperii= acts carried out in the exercise of public power. Immunity from jurisdiction: YES Acts iure gestionis= acts subject to the private law, which can be carried out by private individuals. Immunity from jurisdiction: NO Problem: determining whether an acts is iure imperii or iure gestionis (nature, purpose, context?) Exceptions: - Consent of the foreign state (express or implied) - List of specific exceptions in the 2004 Convention - Exception in the event of serious violations of human rights/ of the D or armed conflicts? - ICJ: NO (State jurisdictional immunities (Germany v. Italy), 2012) States immunities: immunity from enforcement Immunity from execution is more extensive then immunity from jurisdiction No coercive measures can be applied against the property of a State, even if they serve to enforce a judgement that has been duly adopted Exceptions: - Express consent of the State (thought treaty, contract or declaration before the court) - When the State assigns assets to satisfy the claim that is the object of the proceedings - When it is established that (1) the assets are specifically used by the State for purposes other than official non-commercial ones, (2) they are located in the territory of the State of the forum and (3) the have a link with the object of the proceedings Immunities of State officials - Individuals who serve as state officials also benefit from immunity from the jurisdiction of foreign States - PERSONAL IMMUNITY: - inviolability and exclusion from civil and criminal jurisdiction before the courts of a foreign state - also includes private actions - certain bodies that are fundamental to the conduction of the IR of a State - only for duration of official’s time in office - FUNCTIONAL IMMUNITY: - precludes a State from exercising jurisdictional over officials of another State, to the extend they are acting in an official capacity - Unlimited in a temporal sense State succession: Concept Substitution of one State fro another in the responsibility for the international relations of a territory. Relevant in those cases in which the title to sovereignty over a given territory changes from one state to another Relevant international treaties: - Vienna Convention on the Succession of States in respect of Treaties of 23 August 1978 - Vienna Convention on the Succession of States in respect of State Property, Archives and Debts of 8 April 1883 State succession: Types - Succession in respect of part of the territory (partial succession)-> cession of a territory to another state (Alsace and Lorraine from Germany to France) - Recently independent states (colonial succession)-> e.g. independence of Peru from Spain - Unification: two states unify, creating a new/successor state-> (Re)-unification of the two German states (GDR and FRG) - Separation/secession-> e.g. secession of South Sudan - Dissolution: State breaks up into several parts, the previous state disappears- > Czechoslovakia, Yugoslavia State succession: Legal issues - Succession of state raises a number of complex legal issues Do treaties to which the predecessor State is/was a party bind the successor State? Is ownership of public property and State archives transferred to the successor? What about State debts incurred by the predecessor State? What happens to the nationality of the inhabitants of the territory subject to succession? 16/10/2024 The territorial jurisdiction of States The territory of the State: general ideas Territory= constitutive element of States Physical or spatial basis on which a given State exercise its authority, i.e its power and competences. State may exercise its competences fully, exclusively and autonomously The territory of the State: scope and limits Territory is delimitated by borders (=limits of the State) Borders do not have to be undisputed at every point. Not part of State territory: - State embassies abroad (extraterritoriality) - Boats and planes (“floating territory”) Territorial competences (I) Territory of the State is where its sovereignty is projected. Territorial jurisdiction: the power of the State with respect to the people who live in its territory, the things that are in it and the actions that take place in it. Characteristics: - Plenitude of functions or powers - Exclusiveness of territorial sovereignty - Inviolability of territorial sovereignty Territorial competences (II) Obligations and limits: - Obligations to guarantee the rights of other States over their respective territories - Obligation to protect the rights of other States within its territory - Principle of non-intervention in the internal affairs of other States - Obligation to avoid causing damage to other states through activities carried out on state territory - Obligation not to allow its territory to be used for acts contrary to the rights of other States - Prohibition of abusive exercise of territorial competences - Sic utere tuo ut alienum non laedas Acquisition of territory (I) Original acquisition (= acquisition of terra nullius) - Occupation (= taking effective possession of the territory of the territory with animus occupandi) -> irrelevant case - Accretion (= increment of the territory by the incorporation of new land masses) Derivative acquisition (= acquisition of territory previously subject to the sovereignty of another state) - Cession (= cession of sovereignty to another state though sale, exchange, peace treaties…) - Prescription(= change of ownership by effective and uncontested possession for a certain period of time) - Conquest/annexation (= violent incorporation of a foreign territory)-> PROHIBITED BY PIL Acquisition of territory (II) Principle of uti possidetis iuris - Principle of application to cases of newly independent states following decolonization - Double function: - Border delimitation of independent states produced by preserving as territorial limits those fixed by the colonial power ( international and administrative) - Preeminence of the legal title of the colonial era over effective possession as the basis of sovereignty 21/10/2024 Territorial competences over marine areas The Law of the Sea Object: Rights and obligations of States in respect of the seas and other waters Origin: Discovery and exploration of the oceans at the beginning of the Modern Age created the need to organize the seas as a legal space that would satisfy the needs of maritime nations. Mare clausus v. Mare liberum 1982 United Nations Convention on the Law of the Sea (UNCLOS) Base lines Point from which the extensions of the different maritime zones are measured General rule: low-water mark along the coast Exceptions: - Straight base line (art. 7 UNCLOS) - Archipelagic base line (art. 47 UNCLOS) Internal waters Maritime space between the mainland and the baselines Extent depends on the base lines applied by the riparian state Subject to the sovereignty of the coastal state Part of the state territory Extends to the overlying airspace + sea bed and subsoil Territorial sea Strip of the sea adjacent to land territory Maximum length: 12 nm from the base line (art. 3 UNCLOS) Subject to the sovereignty of the coastal state Limitation of sovereignty: right of innocent passage (arts. 17 ss.) - Passage: the right to sail through the territorial sea in order (1) to cross it without entering the internal waters or (2) to leave the internal waters or to leave them - Innocent: it must not be prejudicial to the peace, good order and security of the coastal state - The innocent passage is enjoyed by the boats (not airplanes) of all States Contiguous zone Strip of sea adjacent to and outside the territorial sea Maximum extent: 24 nm from the base line (art 33. UNCLOS) Does not form part of state territory, but in it the coastal state has powers to adopt certain control measures - Control rights to prevent/chase violations of the law in its territorial waters (see art. 33 UNCLOS) Exclusive Economic Zone, EZZ (I) Maritime space beyond the territorial se and adjacent to it Partially overlaps with the contiguous zone Maximum length: 200 nm from the base line (art. 57 UNCLOS) Existence depends on declaration by the riparian state (Spain: Law 15/1978) Competences of the riparian State (see art. 55 ss.UNCLOS): - rights of sovereignty for the purposes of exploration/exploitation/ conservation/administration of natural resources (art. 56 UNCLOS) - Jurisdiction regarding the establishment/use of artificial installations, marine scientific research, protection/preservation of the marine environment - Powers of control and sanction regarding fishing activities in the EEZZ (art. 73 UNCLOS) Exclusive Economic Zone, EEZ (II) In the absence of special rights for the coastal state, the rules relating to the hight seas apply to the EZZ (art. 58 UNCLOS) - Freedom specific to the high seas (navigation, overflight, tender cables and submarine tubes) - Not: freedom of fishing, scientific research, building artificial islands and other facilities Continental shelf (I) Natural continuation of the land mass below the marine water column (seabed and subsoil) beyond the territorial sea Maximun extent (art. 76 UNCLOS): - End of the natural continental shelf; or - 200 nautical miles (if the continental shelf does not reach this distance); or - 350 nautica miles from the base lines or 100 nautical miles from the 2,500 meter isobath Continental shelf (II) Competences of the riparian State: - Exclusive rights to explore and exploit the natural resources of the continental shelf (art. 77 UNCLOS) - Exclusive right to built artificial islands, installations and structure on the continental shelf (art. 80 UNCLOS) - The legal regime of the CS refers only to the seabed and subsoil and does not affect the status of the overlying water and air column (art. 78.1 UNCLOS) (P) Delimitation of the CS of neighbour countries-> Art. 83.1 UNCLOS: agreement taking into account equity High Seas (I) All parts of the sea not included in the EEZ, the territorial sea, the internal waters of the State or the archipelagic waters of an archipelagic State (art. 86 UNCLOS) Res communis omnium: cannot be occupied (art. 89 UNCLOS) Principle of freedom (art. 87 UNCLOS) - Open to all States, riparian or not - Under the conditions set by UNCLOS ad PIL - With consideration for the interests of other States High Seas (II) Freedom of the high seas (art. 87 UNCLOS) - Freedom of navigation - Freedom of overflight - Freedom to tender submarine cables and pipes - Freedom to build artificial islands and other installations - Freedom to fish - Freedom of scientific research High Seas (III) There are no sovereign rights over the high seas, but there are sovereign rights in the high seas - Ships on the high seas are subject to the jurisdiction of the flag State (art. 92 UNCLOS) - Repression of piracy (arts. 100-107 UNCLOS) - Right of visit (art. 110 UNCLOS) - Right of hot pursuit (art. 111 UNCLOS) The Area (I) Seabed and subsoil beyond the limits of international jurisdiction No sovereign rights can be exercised over the Area or its resources -> COMMON HERITAGE OF HUMANITY (art. 136)  - It is open to use exclusively for peaceful purposes by all States - Exploration and exploitation shall be carried out for the benefit of all mankind The Area (II) International Seabed Authority (ISA): organization/control of activities in the Zone, particularly administration of its resources Resources: all solid, liquid or gaseous mineral resources in situ in the Area, located on the seabed or in its subsoil, including polymetallic nodules (art. 133 UNCLOS) Territorial competences over outer space Airspace Every State has full and exclusive sovereignty over the airspace located over its territory Delimitation: air column located over the territory until the outer space In practice there are certain attenuations of sovereignty over this space, imposed by the common needs of States - E.g. overflight and (technical) stopover rights for civil aircraft (not for state aircraft) - 1944 Convention on International Civil Aviation Outer space (I) Area of international interest beyond airspace There is no concrete legal delimitation Legal regulation of extraterrestrial space - 1967 Treaty on the principles governing the activities of States in the exploration and use of extraterrestrial space, including the Moon and other celestial bodies - 1972 Convention on International Liability fo Damage Caused by Space Objects - 1975 Convention on the registration of objects launched into outer space - 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies Outer space (II) Applicable principles: - Non national appropriation (art. II 1967 Treaty) - Freedom and equality of use (art. 1.2) - Exploration and use for the benefit and interests of all mankind (art. l.1) - International cooperation and mutual assistance (art. IX) - Demilitarization and denuclearization (art. IV) - Aid to astronauts (art.V) - International responsibility (arts. VI, VII) - Jurisdiction of the State of Registry (art. VIII) 23/10/2024 The territorial jurisdiction of States Territorial competences over other areas The polar regions The Arctic: area around the North Pole north of the Arctic Circle - Artic Ocean + parts of Canada, Denmark, Finland , Iceland, Norway, Russia, Sweden and the United States The Antarctic: area situated south of 60° south latitude - Antarctic continent + waters surrounding it above 60° south latitude The Antarctic Antarctic Treaty of December 1, 1959 - Common heritage of mankind - Confrontation of territorial sovereignty claims (art. IV) - Exclusive use for peaceful purposes (art. I) - Freedom of scientific research and cooperation for this purpose (arts. II, III) 1980 Convention on the Conservation of Antarctic Marine Resources Protocol to the Antarctic Treaty on the Protection of the Environment of 1991 The Arctic Application of the Law on the Sea codified in UNCLOS Areas under sovereignty/state jurisdiction + areas where the principle of freedom/common heritage of mankind applies Arctic Council Intergovernmental forum promoting cooperation between Arctic states Main objective: environmental protection + sustainable use of resources Members: - 8 states with territory within the Arctic Circle - Permanent participants: organizations of 6 indigenous communities - Observers: other states and various organizations (also Spain) The personal jurisdiction of States Nationality: general ideas Nationality: legal link between a state and a person Extends to: - Natural and legal persons - Certain objects (ships, aircraft, objects launched into outer space) It is up to each state to determine who its nationals are - Exclusive competence of the State - Limits imposed by PIL: - Existence of effectiveness (ICJ, Nottebohm Case, 1955) - Nationality as a human right State powers over its nationals abroad Personal jurisdiction: jurisdiction, derived from sovereignty, that State exercises over people who are under its jurisdiction The bond of nationality exits independently of the physical space in which the person is located Does the State have powers over its nationals abroad? - Executive power: not without the consent of the territorial state (primacy of territorial sovereignty) - Normative jurisdiction: can have extraterritorial effects State has right that its nationals are guaranteed a certain minimum treatment (minimum standard) Legal condition of non-nationals/aliens Alien: a person who does not have the nationality of the state in whose territory they are located They are subject to the internal law of the territorial state - Of particular relevance: (administrative) regulation of the regime of foreigners PIL establishes certain limits on the exercise of territorial jurisdiction over foreigners - Territorial state must recognize certain rights as a result of the minimum standard - E.g.: protection of life; the right not to be arbitrarily detained; the right not to be subjected to torture; the right to have access to the courts without discrimination… Entry and expulsion of aliens Entry of foreigners: - Admission of foreigners falls to the discretion of the territorial state - PIL prohibits discrimination in terms of entry between the subjects of one country and those of another - However: it does not preclude the possibility of establishing preferential regimes Expulsion of foreigners: - State has the right to expel a foreigner from its territory - However: PIL imposes certain limitations - Obligation to respect human dignity and human rights - Prohibition of certain expulsions (e.g. collective expulsions) Statelessness= situation of those people (stateless persons) not united to any State by a bond of nationality Object in PIL of a special treatment Basis normative instruments - 1954 Convention on the Status of Stateless Persons - 1961 Convention to reduce statelessness Refugee: A perso who, due to well-founded fears of being persecuted for reasons of race, religion, nationality, political opinion, membership of a particular social group, gender or sexual orientation, is outside the country of their nationality and cannot or, because of said fears, does not wish to accept the protection of that country. Applicable also to stateless persons (country of habitual residence) Specific legal regime: - 1951 Convention on the Status of Refugees - 1967 Protocol on the Status of Refugees Certain basic guarantees - Principle of non-refoulement (art. 33 1951 Convention) Manca il motivo dei rifugiati a causa del cambiamento climatico, è una convenzione comunque del 1951 ma non è stato aggiunto nel corso degli anni perché per far sì che sia cambiato, bisogna fare un emendamento della convenzione del 1951 e serve il consenso degli stati e si ha paura che alcuni stati possono voler cambiare altri unti di questa definizione, come per esempio l’orientamento sessuale. Asylum Art. 14 UDHR: Everyone has the right to seek and to enjoy in other countries asylum from persecution - Everyone has the right to seek asylum, but there is no obligation on a state to grant asylum THERE IS NO RIGHT TO ASYLUM IN GENERAL INTERNATIONAL LAW (?) - Territorial asylum: the asylum granted by States by virtue of their territorial sovereignty - UNGA, “Declaration on Territorial Asylum”, Res. 2312(XXII), 1967 - Diplomatic asylum: asylum granted in the diplomatic missions of a country - Most States do not recognize this figure 29/10/2024 The human person and Public International Law The international subjectivity of the individual The individual as a subject of PIL? Are human beings autonomous subjects of Public International Law? Traditional perspective: the individual is not a subject of PIL (there is no direct attribution of right or duties) Today: in some ares of PIL, the human person is directly the holder of rights/obligations (human rights law, international criminal law) In some cases, individuals can assert their rights on their own at international level Tendency to recognize a certain international legal personality of the individual (humanization of IPD) The individual’s capacity to act before international bodies Ability to assert one’s rights before international bodies is an essential element of international subjectivity General rule: the individual requires the action of the State of nationality (“mediatization” of the individual) Applies to both physical and legal persons BUT: there are some exceptions where individuals can themselves have recourse to international bodies Non-judicial bodies There are now a series of non-judicial bodies that individuals can access Individual complaints to bodies set up under human rights treaties - Bodies created by human rights treaties to supervise implementation - 9 treaty bodies: CCPR, CESCR, CERD, CEDAW, CAT, CRC, CMW, CRPD, CED - Can receive complains from individuals about alleged human rights violations - Optional nature (States must accept the body’s competence; ratify the Optional Protocol) - Non-judicial nature: the body’s decision has the character of a recommendation (but: TS of Spain) Extra-conventional mechanisms (e.g. complaint procedure of the Human Rights Council) Judicial bodies Judicial bodies with ius standi for individuals are less frequent Universal level: there is no direct access to international courts - ICJ: “Only states may be parties in cases before the Court”. (Art. 34 (1) ICJ Statute) Regional level: - Human rights: - Generally, there is no direct access to regional human rights courts (e.g. Inter-American Court of Human Rights) - Exception: European Court of Human Rights (mechanism for individual claims since 1998) - Other matters: Court of Justice of the European Union (annulment, infringement action…) 30/10/2024 International Criminal Law Delicta iuris gentium There is a series of criminal acts that give rose to individual criminal liability under PIL. These include: - Crimes of genocide, war crimes, crimes against humanity - Torture and forced disappearance - Piracy, terrorism or illicit drug trafficking - Human trafficking - Aircraft hijacking Individuals may bear direct international responsibility for acts which, by their gravity, are contrary to certain basic interests of the international community. Enforcement Enforcement and punishment of crimes against the international community, in general, are the responsibility of States Art. 7 Convention Against Torture-> The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. International criminal courts for the prosecution of certain crimes - International Military Tribunals at Nuremberg/Far East - International Criminal Tribunal for the former Yugoslavia (ICTY)/Rwanda (ICTR) - International Criminal Court (ICC) (Rome Statute, July 17,1998) International Criminal Court (ICC) 1st permanent international court for punishment of most serious crimes of international concern Legal basis: Rome Statute (adopted 1998; entered into force 2002) Seat: The Hague, Netherlands Member States: 124 State Parties - Not: USA, China, Russia, India, Iran, Israel… Jurisdiction - Four crimes: Genocide, crimes against humanity, war crimes & crimes of aggression (since 2018) - Complementary - May be exercise only if crimes were committed a) on the territory of a State or b) by a national of a State Party International Human Rights Law Human rights: basic ideas Recognition of rights inherent to the human person= constant idea among legal philosophers Historical declarations - Magna Carta, 1215 - Bill of Rights, 1689 - Virginia Declaration of Rights, 1776 - Declaration of the Rights of Man and of the Citizen, 1789 On international level: idea of human rights was not consolidated until after the Second World War - United Nations Charter - Universal Declaration of Human Rights (UDHR), December 10, 1948 Human rights: which human rights? “International Bill of Human Rights” - Articulates a series of universal human rights - Universal Declaration of Human Rights (UDHR), 1948 - International Covenant on Civil and Political Rights (ICCPR), 1966 - International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 Other international human rights treaties - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965 - Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 - Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984 - Convention on the Rights of the Child (CRN), 1989 - International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICMW), 1990 - International Convention for the Protection of All Persons from Enforced Disappearance (CPED), 2006 - Convention on the Rights of Persons with Disabilities (CRPD), 2006 - International human rights declaration (e.g. UN Declarations on the Rights of Indigenous Peoples/Peasants) Regional human rights treaties Human rights: generations First generation of human rights - Civil and political rights - Rights to life, right to liberty Western States Second generation of human rights - Economic, social, and cultural rights - E.g.: right to work, right to education, right to partecipate in cultural life Socialist States Third generation of human rights - Collective or people’s rights - e.g: right to development, right to peace, right to self determination Former Colonies “All human rights are universal, indivisible, interdependent and Interrelated. The international community must treat human rights globally in a fair and equitable manner, on a equal footing and with equal emphasis.” (Vienna Declaration and Programme of Action, 1993) Human rights: imperative nature? Today, the general affirmation that all human beings have inherent rights forms part of ius cogens The situation is more complex when we examine the status of specific rights Some human rights reflect existing imperative norms of general international law - Right to self-determination - Prohibition of genocide and crimes against humanity - Prohibition of torture - Prohibition of racial discrimination and apartheid Protection mechanism: universal level (I) UN Human Rights Council: - Intergovernmental body within the UN system composed of 47 States responsible for the promotion and protection of all human rights Powers: - Reviews the human rights records of UN Member States (Universal Periodic Review) - Adopts resolutions or decisions (non-binding) on certain human rights issues or situations - Appoints Special Rapporteurs on specific human rights issues or countries- Confidential individual complaint procedure Protection mechanisms: universal level (II) Bodies created by virtue of human rights treaties-> Powers: - Examine reports of States parties - Conduct country enquiries - Examining individual complaints (depending on ratification on the Optional Protocol) - Adoption of general comments on the interpretation of the treaty 04/11/2024 Protection mechanisms: Europe (I) Continent where the first regional system for the protection of human rights was established Basis: Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe (European Convention on Human Rights, ECHR) - Adoption: 4 November 1950; Entry into force: 3 September 1953 - 46 States parties Other treaties related to human rights adopted in the framework of the Council of Europe Include - European Social Charter (revised), 1961 (1996) - European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987 - European Charter for the Protection of National Minorities, 1994 Human rights are also protected indirectly through the EU Court of Justice when it comes to the interpretation or application of EU law Protection mechanism: Europe (II) ECHR protection mechanism + 16 Protocols: Central pillar: European Court of Human Rights (ECtHR) Created in 1959; since 1998: full-time court able to hear individual claims 46 judges, elected by Parliamentary Assembly of the Council of Europe The ECtHR can hear any case brought by a private individual or a State Individual claims procedure: - Applications can be lodged by any individual, NGO or group of individuals who claim to be victims of a violation by a State party of the rights enshrined in the ECHR (art. 34 ECHR) - Requirements: it must be anonymous, domestic remedies must have been exhausted, it must not be manifestly unfounded or abusive… - ECtHR judgements are binding on member states (art. 46.1 ECHR) - The application of judgments is supervised by the Committee of Ministers of the Council of Europe Protection mechanisms: America (I) The Inter-American Human Rights System was born from the American Declaration of the Rights and Duties of Man (1948), adopted within the framework of the Organization of American States (OAS) Subsequently, the OAS played an important role in the codification of human rights - American Convention on Human Rights, 22 November 1969 (entry into force: 28 July 1978) - Protocol of San Salvador on Economic, Social and Cultural Rights, 1988 - Inter-American Convention on the Forced Disappearance of Persons, 1994 - Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, 1999 - Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, 2013 Protection mechanism: America (II) Inter-American Commission on Human Rights (IACHR): Created in 1959/1960 as an organ of the OAS 7 members elected by the OAS GA, acting individually. Powers: - Receives individual petitions alleging human rights violations by any OAS member state - Observes and reports on the general human rights situation in OAS member states - Country visits to carry out in-depth analyses Protection mechanism: America (III) - Treaty system of the America Convention on Human Rights (ACHR): - Only applicable to States Parties to the ACHR - Three modalities: periodic reports, state communications, individual communications Inter-American Commission on Human Rights Analyses periodic reports Receives and evaluates individual communications Transmits (confidential) proposals and recommendations to the respective State If the State does not fulfil the recommendations, the IACHR can: - Issue its (public) conclusions on the matter; or - Remit the case to the Inter-American Court of Human Rights (if the state accepts the jurisdiction) Inter-American Court of Human Rights Judicial body of the ACHR (Headquarters: San José, Costa Rica) 7 seats (elected by the OAS General Assembly) Considers cases presented by the IACHR or States Parties Jurisdiction under Article 62 of the ACHR (20 OAS member states) IACHR judgements are final and binding Protection mechanism: Africa The newest of the three regional human rights systems, created under the auspices of the African Union (AU). Base: African Charter on Human and People’s Rights (Banjul Charter), June 27, 1981 African Commission on Human and People’s Rights Established by the Banjul Charter (inaugurated in 1987) Duties: to protect and promote human and peoples’ rights; to interpret the Banjul Charter Receives individual and state communications about alleged violations of the Banjul Charter (judicial case function) Decisions are not legally binding (recommendations) African Court on Human and People’s Rights Established by the 1998 Protocol to the Banjul Charter (34 EP), 11 judges, elected by AU Assembly Functions: to guarantee respect for and compliance with the African Charter and any other human rights instrument ratified by the State in question. Studies cases presented by the ACHPR, States Parties or African IOs Can hear individual cases in the State accepts the jurisdiction of the Court (currently: 8 E) Sentences are final and binding