Transcript Sources of International Law

I.B.D.
International Organization law
Prof. Marco Scarpati
University of Parma
A.Y. 2013-2014
Marco Scarpati
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Degree in law in Parma University
Professor of International Law in Parma
University
Prof. In International Human Rights Protection
(spec. In Child protection)
Barrister
President of ECPAT Italia
[email protected]
Text book
for who will attend the lessons
From page 3 to
page 305
Our course
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Introduction on International law
Basic rules of International Organization law
Working groups on International economic
law – millenium development goals
Reports on working groups
Discussion
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Examination on papers and part of the book
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exams
13 dicembre 2013 ore 9.00 (special for
students will attend the lessons)
 Winter 16 and 31 january 2014 9.00
 Spring 11° april
9.00
 Summer 6° june, 20° june
9.00
 8 september 2014
9.00
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In a normal world….
Meritocracy and equal opportunities
In our country
Choose your job: maybe to study
is not the best criterion…
Growth rate
Life expectancy
Children mortality rate
statistics
statistics
World population
World by population
World population density
World popolation density
Population and development
10 busiest air travel routes of 2012
Population by age group
Better places to born
Hunger map of the world
Dimension of countries for size of
GDP
China GDP rate
Economic world
World GDP growth 2010
democracies
Child poverty rates
Diversity map
Diversity Tollerance map
Right to sexual orientation
Sexual orientation tollerance
Security treaty map
Felt beloved
Condition of mothers
Paid maternal leave
Number of researchers per million
inhabitants
Attitude welcome foreigners
Law system
Majority religion by country
Gepolitical problems
International Law
International law is a body of rules that govern
relations between states, functioning of international
institutions/organizations and rights and duties of
individuals.
 International law covers every aspect of relations
between States from aviation to Xenophobia and
beyond.
 However, we will focus on those aspects of
international law that are of direct relevant to
international Organizations and Int. Economic Law
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A short definition
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International law is the law of the so-called
“international community”.
com·mu·ni·ty n., pl. com·mu·ni·ties. Abbr. com. 1.
A group of people living in the same locality and
under the same government. 2. A group of people
having common interests: the scientific community;
the international business community. 3.a. Similarity
or identity: a community of interests. b. Sharing,
participation, and fellowship.
Subjects of International law
Members of the international community are
subjects of International Law
Subjects have international legal personality:
capacity to have rights and duties under
international law.
Objects of international law do not have rights
and duties but are merely the object of subject’s
rights and duties (e.g. a territory and the natural
resources within it)
Subjects of international law II
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Subjects of international law relates to which entities
have legal capacities under international law and the
extent of that capacity in terms of competence to
perform certain acts:
Hold of rights and duties under international law;
Hold a procedural privilege of prosecuting claims
before an international tribunal;
Possess interests for which provision is made by
international law; and
Competence to conclude treaties with other States and
international organizations
Subjects of international law III
States
 Public International Organizations (e.g. United
Nations, African Union, North Atlantic Organization,
European Union, Organization of American States
etc).
 Individuals: It is part of customary international law
that the obligations of international law bind
individuals directly regardless of law of their states.
 Other Entities: An example of such ‘other’ entity
would be the Holy See and the Vatican City, which
enjoy the status of a State and has international
personality. Other example: NGO’s
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States
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Statehood is objective, not subjective. Recognition does
not bestow statehood.
A State is a state under international law (i.e. it has
international legal personality), if it meets certain basic
criteria.
– Must have a territory
– Must have a population.
– Must have a government.
– Must be sovereign, that is to say must be able to
exercise sovereign functions on the territory (e.g., be
able to exclude anyone else from claiming it
(defense), policing, administration (raise taxes), etc.).
International Organizations
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International organization means public international
organization or governmental organization, that is to say an
organization created by sovereign states and whose
functioning is regulated by international law, not the law of any
given country.
There are hundreds of IOs. Some operate at the global level
(E.g. UN, WTO, World Bank), others at the regional level
(EC/EU, OAS, NATO, ASEAN, AU).
Personality of IOs is limited to what is necessary to carry out
the assigned functions. E.g.. the UN or NATO must have the
power to conclude treaties with states to carry out their
mission. Powers are specified in the legal instruments of the
organization (establishing treaty (e.g. UN Charter) and decision
of the organization itself).
Individuals and Other…
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Individuals have certain (inherent) rights under international law
(i.e. human rights ) and certain duties (e.g. no to commit
international crimes: war crimes, crimes against humanity and
the crime of genocide). They have no international law-making
powers (but can definitively lobby governments and IOs to do
so).
Individuals can act collectively…
– (NGOs). E.g. Amnesty International, medecins sans Nongovernmental organizations frontiers, WWF. There are
several thousands of NGOs. The legal status of these
organizations is regulated by the laws of the countries in
which they operate.
– Peoples (e.g. indigenous peoples…)
Hybrid organizations (public/private): International Committee of
the Red Cross, International Union for the Conservation of
Nature.
Sources of International Law
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International law has three primary sources
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custom
international treaties
general principles of law.
Subsidiary sources (i.e. means to ascertain
the content of law created by the primary
sources)
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Rulings of courts (mostly international)
The writings of international scholars
Article 38(1) – ICJ Statute
international conventions, whether general or
particular, establishing the 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) judicial decisions and teachings of the most highly
qualified publicists…subsidiary means (Art. 59)
2. power to decide a case ex aequo et bono
(a)
Customs
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Customary international law is the result of
consistent practice of a majority of states supported
by the belief that the practice is obligatory (opinio
juris). Example: you cannot use your territory in such
a way as to cause harm to other states; the territorial
sea is 12 mile wide.
Customary international law is law for all states,
regardless of whether they participated in the
formation of the custom. A state is bound by
customary international law simply by virtue of being
a state. Where do you look to know what states’
practice is? You look at what states do and say.
Treaty making, unilateral declarations, decisions
within international organizations, acts….
Jus Cogens
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Special category of customary rules: jus
cogens.
Jus cogens are rules of international law to
which are considered so essential that they
can never be derogated. E.g. ban on torture,
slavery, genocide. Two states or more
cannot make a valid treaty making torture,
slavery or genocide legal.
Treaties
‘…an international agreement concluded between
States in written form and governed by international
law, whether embodied in a single instrument or in
two or more related instruments and whatever its
particular designation.’
- treaty, convention, protocol, covenant, charter,
statute, act, declaration, concordat, exchange of
notes, agreed minute, memorandum of agreement,
modus vivendi, or any other appellation
- central principle: consent to be bound
Treaties: Essential Vocabulary
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full powers
signature (authentication, good faith)
ratification (domestic and international, Article 14 of VCLT)
acceptance, approval, accession
reservations, declarations
contracting state
state party
entry into force
deposit
multilateral, bilateral, law-making
Treaties: Interpretation
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Vienna Convention on the Law of Treaties, articles
31 and 32
Art 31: general rules of interpretation
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in good faith and with ordinary meaning, in context and in
light of its object and purpose
in addition to the (full) text, the context shall comprise:
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agreements relating to the treaty
instruments made in connection with the treaty
also: subsequent agreements, subsequent practice, any
relevant rules of international law
special meanings if established
Article 32
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty (*) and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of Art 31, or to determine the meaning
when the interpretation according to Art 31:
a) leaves the meaning ambiguous or obscure; or
b) leads to a result which is manifestly absurd or
unreasonable.
International law and national law
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In general, as long as a State carries out its obligations under
international law, how it does so is not the concern of International
law, except in the area of human rights where states have undertaken
to make certain conduct such as torture and genocide a crime
punishable under national laws.
Not all states agree on the relationship between International Law
and National Law
Many states adhere to the superiority of international law over
national law, meaning that international law will prevail in the event of
a conflict between with national law.
Other states see International law and national law as two separate
legal systems and require formal incorporation of international laws
into national law by the legislature before they become operational in
the countries.
However, from international perspective it is important for you to bear
in mind that international law is binding on all states.
General Principles
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General principles of law are those principles
commonly found in the major legal systems of the
world. E.g.: ne bis in idem rule, or double jeopardy is
a general principle of law (criminal law) common to
all legal systems of the world. It is a source of
international law on its own right but it is resorted to
mostly when there is no applicable treaty or when
there is no practice or it is unclear or inconsistent
(which is rare).
International Order – Based on
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International institutions
International norms
“Habit” (customs)
Some norms codified into international law
Common Principles of National Law
Factors “Shaking Up” International
Norms
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End of old international order (1950-60)
New subject (1970)
End of Cold War (1990)
Rapid shifts in economic participation and
status of some countries (e.g. China, India,
Brazil)
Information revolution
Others
International Organizations (IOs)
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Intergovernmental Organizations (IGOs)
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Regional IGOs
Global IGOs
Nongovernmental Organizations (NGOs)
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Professional organizations
Economic/business orgs
Political orgs
Cultural orgs
Religious groups
United Nations
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67 years old
More prominent since end of Cold War
World government – not
Major purposes:
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Conflict resolution (collective security)
Economic and social development
Created to serve state’s needs
Designed for post-WWII world
UN Structure
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General Assembly – all states
Security Council – 5 great powers and 10
rotating seats
Socio-economic Council
Secretariat - office of Secretary General
Court of Justice
UN Programs
Autonomous agencies
UN structure
Security Council
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5 great powers
(permanent) and 10
(temporary) rotating
seats
Maintain world’s security
Decisions binding on all
member states
Re security situations:
– Define security threat
– Choose a response
– Enforce through
mandatory
directives/resolutions
Choosing Non-Permanent
Members of the Security Council
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10 non-permanent members
9 votes needed to pass resolution: (no one of
the 5 permanents have to put the veto, so no
one of them have to vote “no”. Abstention is
possible)
5 new non-permanent members chosen
every year for a 2-year cycle
Each region of the world represented by the
5 new members
Proposed Changes of the Security
Council
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Japan and Germany as permanent members –
concerns?
European seat?
India?
Brazil?
An Islamic country?
Expand Security Council to 24 Members
New permanent members?
Semipermanent member
World Region in UN
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Western Europe
Eastern Europe and OLD USSR territories
Middle East
East Africa
West Africa
EAPRO (East Asia, pacific and Oceania)
South Asia
Latin America (Central and southern America)
General Assembly
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All states are members (currently 192)
Functions and Powers :
– Control of finances for UN programs and ops (e.g.
peacekeeping)
– Pass resolutions – merely advisory if not convention
signed and ratificated
– Elect members of UN agencies
– Coordinates UN agencies and programs
Make-up of GA changed post-colonialism
– Often venue for concerns/complaints of developing
countries
Secretariat
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Secretary-General is the top of the administration
Nominated by SC, approved by GA
Ban Ki-Moon from South Korea 2007
Bureaucracy for administering UN policy and
programs
Develops international civil service system –
diplomats and bureaucrats with allegiance to
world
SG serves as third party, good offices of UN
Special status of staff members
The list of Secretary-General
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Trygve Lie, Norway (1946-1952)
Dag Hammarskjold, Sweden (1953-1961)
U Thant, Burma (1961-1971)
Kurt Waldheim, Austria (1972-1982)
Javier Perez de Cuellar, Peru (1982-1992)
Boutros Boutros-Ghali, Egypt (1992-1996)
Kofi Annan, Ghana (1997-2006)
Ban Ki-Moon, South Korea (2007-)
UN Programs
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Purpose - advance economic development and
social stability
More than 10
Funded by GA and donations
Examples:
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UNICEF (Children’s Fund – poor countries)
UNHCR (Refugees – protect and assist)
UNDP (Development in poor countries)
Administrative programs such as UN System
Autonomous Agencies
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About 20
Ties to UN but not run by UN
Specialized technical organizations
IAEA (Atomic Energy Agency)
WHO
UNESCO
WIPO
WTO, IMF, World Bank
In Italy: FAO, WFP, IFAD, UNICRI, ILO School…
Peacekeeping
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The UN’s own forces (borrowed)
Calm regional conflicts
Neutral role
Funds from General Assembly, control by Security
Council
Size and cost of peacekeeping forces almost tripled
1997 to 2002
Can be observers (unarmed) or peacekeepers (armed)
Don’t MAKE peace, KEEP it
Currently 18 different missions in Africa, the Caribbean,
Middle East, Europe and Asia
Who Pays: top 10
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United States - 27%
Japan - 19%
Germany - 9%
United Kingdom - 7%
France - 7%
Italy - 5%
Canada - 3%
Spain - 3%
China - 2%
Netherlands - 2
Peace enforcement