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INTERNATIONAL LAW Esplicazione dei temi dell’esame scritto

F.A.B.

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INTERNATIONAL LAW

Appunti Luiss – F.A.B.

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Sommario NATURE AND FUNCTIONS OF INTERNATIONAL LAW AND THEORIES

ON ITS LEGAL GROUND (DIXON CHAPTER 1) .................................................. 5

THE SOURCES OF INTERNATIONAL LAW (DIXON CHAPTER 2) .............. 9

THE LAW OF TREATIES (DIXON CHAPTER 3) ............................................... 13

THE RELATIONSHIP BETWEEN NATIONAL AND INTERNATIONAL LAW

............................................................................................................................................. 19

PERSONALITY, STATEHOOD AND RECOGNITION (DIXON CHAPTER 5)

............................................................................................................................................. 23

JURISDICTION (DIXON CHAPTER 6) ................................................................... 27

IMMUNITIES (DIXON CHAPTER 7) ...................................................................... 34

INTERNATIONAL LAW OF THE SEA (DIXON CHAPTER 8) ....................... 42

THE RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONG

FUL ACTS......................................................................................................................... 47

THE PEACEFUL SETTLEMENT OF DISPUTES (DIXON CHAPTER 10) . 50

THE USE OF FORCE (DIXON CHAPTER 11) ..................................................... 55

HUMAN RIGHTS ( DIXON CHAPTER 12) ........................................................... 59

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NATURE AND FUNCTIONS OF INTERNATIONAL LAW AND

THEORIES ON ITS LEGAL GROUND (DIXON CHAPTER 1)

INTRODUCTION : In simple terms, International Law can be seen as a

system of rules and principle that govern international relations between

sovereign states and other institutional subjects of international law such as

the United Nations, the Arab league and the African Union.

CRITICS : International law has been for a long time object of criticisms,

in particular the most important critics about International law features and

shortcoming are the non existence of a set of organic rules , the non existence

of a law in term used in the national systems and the non existence of the

traditional functions of the law, such as the creation of law, the non-

automatic judicial assessment of law and the non existence of enforcement

rules.

ANSWERS TO CRITICS : In answer to the first critics we have to explain

that International Law is a set of organic rules thanks to agreed aims such as

the aim to facilitate the cooperation among the subjects of International Law,

the aim to prevent wars and disputes and the aim to assert and protect the

basic principles of International law. The second and the third critics are

based on the comparison between the National and the International legal

system, so that these critics cannot be considered valid because National and

International legal system are different in terms of subjects, structure, basic

principles and general aims.

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FUNCTIONS : We can affirm that the functions and the aims of

International law are in the hands of the subjects of it, the States; their main

function are the approval of International Law rules, the international judicial

system and the enforcement measures.

FEATURES :

- ENFORCEMENT MEASURES : the fact of enforcement may be a

reason why individuals obey the law, but it is not the reason why it is actually

law, enforcement measures allow legal rules to come into existence in a

manner accepted and recognized by States as authoritative; the means are :

a) The Security Council , under the Charter of United Nations, may take

“enforcement action” against a state when it poses a threat to the peace, or

has committed an act aggression or breach of the peace (Art. 39, Ch. 7 of UN

Charter);

b) Loss of legal rights and privileges, according to which any violation

of law results in the loss of corresponding legal rights and privileges;

c) Judicial enforcement, as well as ad hoc tribunals, there is the

International Court of Justice, being the principal judicial organ of the United

Nation, and the relatively recent International Criminal Court for dealing

with serious violations of International law by individuals; ICJ is primarily

concerned with the enforcement of international rights and duties, even

through the procedure by which states can be compelled to carry out awards

of the Court is limited; furthermore we can note the growth of specialized

judicial institutions concerned with discrete issues of International Law and

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we have to mention all the problems concerning International Law issues

which arise in the national courts of states.

- EFFECTIVENESS OF INTERNATIONAL LAW :

a) The common good can be understood as the common self-interest and

necessity of states, based on the need of International Law to ensure a stable

and orderly international society;

b) The psychological Rubicon is a psychological barrier against

breaking international law simply because it is law and a behavior against

an international rules would be immoral or unacceptable;

c) The practitioners of International Law may have a “habit of

obedience” derived from their own training as national lawyers which serves

to encourage respect for international law;

d) The flexible nature of International Law means that a state may be

able to choose from a range of policies, all of which will be legal;

e) The political costs;

f) Sanctions .

CONVERGENCE BETWEEN NATIONAL AND INTERNATIONAL

SYSTEM : In recent times it showed modest signs of convergence between

the National and the International system in terms of more powers to the

rights and interests of individuals versus the national states, in terms of

existence of international judicial mechanism similar to national system and

in term of enforcement rules.

APPLICATION : International law has to be applied by all State organs ,

regardless their role and importance in national system, like those which

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have external outstanding responsibilities or only internal relevance,

according to the ILC Draft 2001, art, 4, para. 1 and 2. International law has

to be applied in the relations between States inter se or between States and

other subjects such as individuals, both in time of peace or war.

RATIONE MATERIAE E RATIONE LOCI : Two other important

principle are the ratione materiae, which is identified as the aim of “common

good” because it helps to create a stable and orderly international

community; and the ratione loci according which there many rules with

territorial application and other, such as Human Rights, which are applicable

extraterritorially.

DOCTRINAL THEORIES : In addiction we need to explain the Doctrinal

Theories on the nature and legal ground of International Law which can help

as to understand in a better way the concept of International Law. The first

one is the Theory of Natural Law according which some principles are

embodied in individuals; this theory has been supported by Grotius, one of

the father of IL, Pufendorf and Locke. The second one is the Theory of Self

Restraint by States, according to which in principle States are free to do

what they want basing its application on the consent of States, even if it could

cause chaos as a risk. The third one is the theory of Positivism with the

Command Theory of John Austin based on commands and orders with

sanctions as way of enforcements. There are also other expressions of

Positivism such as the Pure Theory of Law supported by Hans Kelsen who

thought that International Law is a positive law founded in a grundnorm.

The fifth and the last theory is the one of the Realism, approved by Santi

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Romano with his “Teoria delle istituzioni” based on the latin brocardo ibi

societs ubi jus.

THE SOURCES OF INTERNATIONAL LAW (DIXON CHAPTER 2)

INTRODUCTION ART. 38 ICJ STATUTE : The starting point for a

discussion about the sources of International Law is Art. 38 of

International Court of Justice Statute, which provides :

“1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” DISTINCTION FROM THE TECHNICAL POINT OF VIEW : before

explaining all the concepts expressed in att. 38, we should distinct the

sources from a technical point of view, dividing them in formal, material and

evidentiary sources. Formal sources are characterized from the process by

which a legal rules come into existence (law creating principle); Material

sources concern with the substance and the content of legal obligations and

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the Evidentiary sources tell us what a state and other international legal

subjects can or cannot do (diplomatic memoranda, statements of

Governments and state activities).

INTERNATIONAL CONVENTIONS : The International Conventions,

whether general or particular, establish rules expressly recognized by the

contesting States; International Treaties are the only way by which States

can create International Law consciously because the parties give their

consent to be bound. Treaties can be bilateral (concluded by two parties) or

multilateral (concluded by more than two parties), they are the outcome of a

long and difficult negotiation which binds State (which become parties) and,

at last, they usually promote the development of customary law, for example

the Vienna Conventions on the Law of Treaties and the Vienna Convention

on Diplomatic Immunities codified existing customary law in order to create

an exhausting system of rules capable of impose itself as a souce of law and

as a legal obligation, like the effects of contracts in national law.

CUSTOMARY LAW : Customary International Law is that law which has

evolved from the practice or customs of states. International Customs are

the evidence of a general principles accepted as law, customary law has

evolved from the general, uniform and consistent states practice and from

the belief that this practice is obligatory, this belief in the obligatory nature

of the practice is called opinio juris and, for example, in the Lotus Case the

PCIJ emphasized that opinion juris was an essential element in the formation

of customary law. The three main features of customary law are Diurnitas,

Uniformity and Generality. Where customary law and treaty law stipulate

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the same or similar legal obligation there are few problems, in particular a

treaty may replace or modify customary law but the rules of Jus Cogens,

which are embodied in the nature of individuals and recognized by all,

cannot be modified by a treaty. It may arise the conflict between the custom

and the treaty: if the treaty is later in time than the custom, the treaty will

prevail; if the custom is later than the treaty, the position is unclear, the

custom may partially modify the treaty only if there is the overwhelming

consensus among the parties, the better view instead supports that treaty

continues to govern the relations between parties even if a new practice

developed.

GENERAL PRINCIPLES OF LAW : The General Principles of law

recognized by Nations can be identified with the material sources, the natural

law doctrines, the rules common to all legal systems and the principles of

equity . Especially, material sources are the content and the substance of

legal obligations; according to natural law doctrines some rules derived

from natural law are said to have a pre-existing legal validity; the rules

common to all legal system concern those procedural and administrative

rules which are inherent in the concept of every legal system, such as the

exclusion of circumstantial evidence, the general principle that a claimant is

entitled to receive compensation for proven injury and the principle of res

judicata, applied in particular in the dispute of Bosnia Erzegovina against

Serbia Montenegro; at the end we have to mention the principles of equity

which are identified with the principles of fairness and justice, they are

essential in international law because they may influence the manner in

which more substantive rules are applied.

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JUDICIAL DECISIONS : judicial decisions are described in Art. 38 as a

“subsidiary” means for the determination of law; in theory, they do not make

law but are declaratory of pre-existing law, they are law identifying or

material sources of law and this is confirmed in Art. 59 of ICJ Statute.

Decisions of the Court have a profound impact on customary law because

the Court will bring the process of crystallisation of customary law to a swift

conclusion; also the Advisory Opinion have decisive effect on the

subsequent state practice. The judicial decisions can be not only those of

International Court of Justice but also those of International Criminal Justice,

the Permanent Court of Arbitration , the International Court for the Law of

the Sea and also the decisions of National Tribunals about questions

concerning the International Law.

WRITINGS OF PUBLICISTS: the writings and teaching of the most

highly qualified publicists are also to be regarded as a “subsidiary” means

for the determination of rules of law, although it is clear that they are

evidential or material sources only; today the writings of even the most

respected international lawyers cannot create law. Furthermore, at the second

point of Art. 38 it is specified that this provision shall not prejudice the power

of the Court to decide in case of ex aequo et bono, if the parties agree thereto.

RESOLUTIONS AND DECISIONS OF INTERNATIONAL

ORGANISATIONS: resolutions of international organizations are omitted

from the list of materials that the court may consider when deciding disputes

submitted to it and this may be because such resolutions do not usually,

themselves, create binding law; they are material or evidential sources and

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they may accelerate the formation of customary law as well as providing

crucial evidence of the elusive opinio juris. In particular, the General

Assembly resolutions deal with substantive questions of international law

and they may be declaratory of existing customary law; the Security Council

resolutions instead are concerned more with mandatory enforcement actions

against delinquent states and they bind states.

SOFT LAW : We should also pay attention to the concept of Soft Law

which is connected to two different but related phenomena: the rules of

International Law that do not stipulate concrete rights or obligations for the

legal person to whom they are addressed to (such as Human rights and

Environmental Rights); amd the values, the guidelines, the ideas and

proposals that may develop into rules of International Law but they have not

done yet.

THE LAW OF TREATIES (DIXON CHAPTER 3)

INTRODUCTION : The law of the treaties covers a wide variety of matters,

there are rules dealing with the entry into force, the termination, the

interpretation, the reservations and the relationship of treaty law to customs.

The law of treaties is one of the least “political” areas of International Law

but we have to explain its discipline starting from the definition of the

concept of “treaty”.

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DEFINITION OF TREATY : A treaty is a legally binding agreement

deliberately created by, and between, two or more subjects of international

Law who are recognized as having treaty-making capacity. A treaty is an

instrument governed by International Law and, once it enters into force, the

parties thereto have legally binding obligations in International Law.

ACTS LACKING AN INTENTION TO CREATE LEGAL

RELATIONS : There are also acts lacking an intention to create legal

relations but it is quite possible for states to conclude a quite complicated

“agreement”, encompassing formal procedure for future actions, without

establishing legally binding treaty, this was, for example, the position of the

Final Act of the Conference on Security and Cooperation in Europe 1975

(the Helsinki Declaration) , which was not intended to take effect as a treaty

under international law but which has given rise to a whole host of formal

procedures and institutions.

OTHER “NON-TREATY” CIRCUMSTANCES GIVING RISE TO LEGALLY BINDING OBLIGATIONS : We also have to distinct a number of examples of acts creating legal relations that do not amount to treaties as such, these include the declarations under Art. 36 (2) of the Statute of International Court of Justice, unilateral statements intended to have legal effects, acts having legal effects in National law, acts giving rise to Customary International Law and formal acts of international organizations. According to art. 36 (2) of ICJ Statute the states parties to the Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning the matters on which the Court has the power to judge. Moreover, we should also to consider unilateral statements intended to have legal effects, in particular the Court, in the Nuclear Test Cases of 1974, confirmed that unilateral statements of states can become legally binding in appropriate

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circumstances. Sometimes acts and obligations having legal effects in National law might be regarded as a treaty when they take effect in international law; for acts giving rise to Customary International Law we can mean all state activity on international plane which may have legal significance and at the end, we have also to consider formal acts of international organizations because they may give rise to binding international law for the persons to whom the act or decision is addressed. THE VIENNA CONVENTON ON THE LAW OF TREATIES 1969 : The most important Convention concerning the matter is the 1969 Vienna Convention on the Law of Treaties; in fact it governs written treaties for state-parties to this Convention, much of the content is now replicated in Customary Law. - TREATIES TO WHOM THE CONVENTION DOES NOT APPLY : The Vienna Convention does not apply to all international treaties; it is made clear in Arts 1 and 2 that the Convention applies only to treaties between states and only to treaties “in written form … governed by international law”; in addiction treaties concluded between states and other international persons or between those person alone, are excluded from the scope of this Conventions like oral treaties, in cases concerning those international subjects which are not states but international organizations, we have to refer to the 1976 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (VCLTIO). - THE CONVENTION AND CUSTOMARY LAW : The

Convention itself preserves the operations of customary international law;

there are clearly certain areas of the Convention which were intended to be

a codification of existing customary international law or which have now

achieved that status, such as the rules of fundamental change of

circumstances and material breach identified as such by Sinclair.

- THE INCEPTION OF TREATIES : The second part of the

convention deals with rules pertaining to the creation of treaties and

including the authority to conclude treaties, modes of consent and entry into

force international scenery. The authority to conclude treaties is a matter

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for national law of each state to decide which government official or entity

is competent to enter in to international treaties on its behalf, for example in

UK treaties are concluded by the Crown. Before a treaty can create legal

obligations for a state, two distict criteria must be met, the consent of the

state to be bound and the entry into force : art. 11 of the Convention stipulates

that the consent of a state to be bound by a treaty may be expressed “by

signature, exchange of instruments constituting a treaty, ratification,

acceptance, approval or accession or by any other means if so agreed”; the

entry into force is explained under art. 24 of the Vienna Convention,

according to which a treaty enters into force “in such manner and upon such

date as it may provide or as the negotiating state may agree”

- PRINCIPLE OF “PACTA SUM SERVANDA” : Art. 26 of the

Convention is rightly regarded as one of the most fundamental rules of

international law, in particular “ […] every treaty in force is binding in good

faith upon the parties to it and must be performed by them in good faith”,

this is the rule of pacta sum servanda.

- RESERVATIONS: In the negotiations leading to a bilateral treaty,

the two participating states may disagree over the precise terms of the treaty

that is to bind them, so that it is necessary to renegotiate in order to find a

compromise, this is achieved by means of “reservations”. Reservations are

unilateral statements made by a state at the time it gives its consent to be

bound and which are intended to modify or exclude an otherwise binding

treaty obligation; the discipline of Reservation is explicated in Art. 19,

according to which all states are free to move Reservation unless they are

prohibited or they are incompatible with the object and the purpose of a

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treaty. In Art. 20 it is affirmed that a Reservation expressly authorized by a

treaty does not require the acceptance of the other parties and for those

classes of treaty that are intended to create a uniform set of rules and

obligations the unanimity rule prevails. Under Art. 20 (3) a Reservation to a

treaty which is the constituent instrument of an international organization

must be accepted by the competent organ of it before it can have legal effects

and, under Art. 20 (4), there many other important and specific cases which

allow the Reservation when it is not expressly prohibited or permitted.

- INTERPRETATION OF THE TREATIES : Another important

point of the Convention is treated from Art. 31 to Art. 33 and it concerns the

Interpretation of treaties which can be characterized by a textual or literal

approach, it can be based on the intention of the parties or on the object and

purpose (teleological approach), it can follow the principle of

effectiveness, according to which a treaty should be interpreted in order to

ensure maximum effectiveness in achieving the object and the purpose of the

treaty, or the concept of Travaux Préparatoires , which are supplementary

means of interpretations which may be used to confirm the meaning resulting

from art. 31 or to determine the meaning according to art. 31 when the

meaning is obscure or leads to absurd or unreasonable meaning.

- THE THIRD STATE : Under art. 34 of the Convention describes the

concept of “Third State” specifying that a treaty does not create obligations

and rights for a Third State without its consent because it binds only the

parties that stipulated it.

- IUS COGENS : Art. 53 is strictly connected with the Jus Cogens

concept according to which a treaty is void if it conflicts with an existing

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