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DIRITTO INTERNAZIONALE
LEZIONE N1, “NATURE and DEVELOPMENT of INTERNATIONAL LAW” The main goal of International Law is regulating interactions between international subjects and going so maintaining a situation of peace, creating a legal framework that works as a “shock absorber” of potential conflicts. The first example is in Qadesh, the 13th century before Christ, between Egyptians and Hittites. In Europe, we mark the beginning of international relations in 1648 with the peace of Westphalia, in which many new states gained sovereignty and independence. Jean Bodin in the 16th century was the first to theorize the concept of sovereignty, but he thought it about individuals. Then it was re-elaborated and shifted to countries: only God is superior to the State. Also, Thomas Hobbes gave contributions to the concept of sovereignty. States’ CONSENT is the basis of International Law. There is no DUTY , everything is consensual. Positivism said: “The true law is the positive law, the law created by men”. Postal unions and telegraph unions, brought by the Industrial Revolution, helped spreading this idea. NEW ORGANIZATIONS : by becoming part of new organizations countries, by consent, for the first time decided to lose their sovereignty. 1919, League of Nations : WWI is finished, States want peace. Following Woodrow Wilson’s idea. It fails as the US and Russia do not participate in the league) 1928, Treaty of Paris (Briand-Kellogg) : 15 states sign an international treaty (for the first time), renouncing to war as a mean of resolution of conflicts 1945, ICJ (International Court of Justice) : it has no compulsory power, but from now on is a very relevant player on the international scene.
1945, the foundation of the UN (15 countries in the Security Council, 5 of which permanently FUGRC , and
a General Assembly) The second half of the 20th century: end of colonialism End of 80/the '90s: the creation of regional international organizations, empowerment of non-state actors, development of the concern for human rights, consolidation of Western-driven liberal values
INTERNATIONAL LEGAL SYSTEM : Montesquieu theorized the separation of powers. There is a judiciary
branch, an executive branch (the government) and a legislative branch (Parliaments)
INTERNATIONAL LAW SYSTEM : nothing of all of this. The power is DECENTRALIZED (it’s up to States to
interpret international laws), it is a system of SELF-HELP (States can take countermeasures after a violation of another country to protect themselves) NO COERCITIVE SYSTEM, NO POLICE: how States are driven to respect International Law?
- PLURALITY OF STATES (absolute need to avoid anarchy)
2. RECIPROCITY
3. REPUTATION
LEZIONE N2, “SOURCES of INTERNATIONAL LAW” DECENTRALIZATION and SELF-HELP are the main features of the international system. Sources are the content within International Law works. Art. 38 of the ICJ Statute states the sources of International Law:
1. International conventions (or treaties): PACTA SERVANDA SUNT is one of the guiding principles in the
treaties field
2. international custom: conducts used by countries for ages and now they are like unwritten rules. They
work in all states, not just in some. They are valid also in States that were born after the start of these customs. There are two elements in customary law: an objective one ( STATE PRACTICE ) and a subjective one ( OPINIO JURIS ). State practice is the consistent repetition of the same behavior by a group of States for a certain period. We can see them at international conventions or in decisions by international courts. Opinio juris is a subjective acceptance of the practice as law by the international community. Big countries have a much bigger weight in using certain customs.
3. general principles of law generally accepted: they are used as “gap fillers” as there are no specific
laws in specific fields. Some of them are: GOOD FAITH, PACTA SERVANDA SUNT, RES JUDICATA, and DUE DILIGENCE (a country must try to avoid damaging the environment and other countries)
4. judicial decisions: new sentences, new resolutions and new decisions by tribunals are going to be part
of the sources. Judges are inspired by already existent decisions (but they are not obliged to follow them). HIERARCHY OF SOURCES : there is no hierarchy between treaties and customs, there’s a normative equality between them. In case of conflict: “the newer the better” and “a specific rule is going to be better than a general one”. Exceptions to the equality:
- jus cogens rules: those rules that don’t admit derogations and can be modified by other jus cogens rules
- erga omnes obligations: duties owed by every state to the international community as a whole (human rights, against genocide and aggression)
- obligations under the UN Charter (art. 103) Soft law is that kind of law constituted by non-legally binding agreements and by UN General Assembly Resolutions. LEZIONE N3, “INTERNATIONAL PERSONALITY”
the offender), PASSIVE NATIONALITY or TERRITORIALITY (allows states, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens, nationality of the victim), PROTECTIVE JURISDICTION (States can claim it when they think that the offense represent a national threat, e.g. monetary currency), UNIVERSAL JURISDICTION (a State can claim it no matter where, who, what, when it comes to slavery, genocide, war crimes, crimes against humanity) As there is no hierarchy, there is a guide principle: AUT DEDERE AUT IUDICARE (o estradare o giudicare, che significa che per ragioni pratiche l’indagato sarà processato nel luogo dove si trova in quel momento oppure estradato) States’ jurisdiction is full, but not absolute. We can see that in the case of immunities. States cannot: judge representatives of other countries in national courts, arrest a representative of another State, sue another State without its consent. When it comes to adjudicatory jurisdiction (the tribunal one) States have a restrictive immunity (no more absolute) over: sovereign acts ( jure imperii acts, only by a State, they are governmental acts) and commercial acts ( jure gestionis acts, they are not governmental, they are commercial acts). IMMUNITY TO STATES REPRESENTATIVES : distinction between immunità funzionale (condotte poste in essere nell’esercizio di attività ufficiali, valida anche dopo la fine del mandato) e immunità personale (atti compiuti dagli agenti come privati compiuti prima e durante il mandato) Le immunità giurisdizionali funzionali in realtà accompagneranno il rappresentante sempre anche dopo la cessazione delle funzioni perché relative a condotte poste in esser come organo. Non possono essere imputato all’individuo in quanto tale, ma allo Stato. Viceversa, immunità personali cessano definitivamente con il cessare delle funzioni. VIENNA CONVENTION ON DIPLOMATIC IMMUNITIES : it regulates the conditions for the concession of immunities. Diplomatic agents enjoy: personal immunity from the host State's criminal jurisdiction, civil and administrative immunity, and exemption from all dues and taxes. Also, administrative and technical staff enjoy some and even service staff. Art 22 and 24 of Vienna Convention mention the inviolability of premises and of archives and documents. LEZIONE N5, “STATE RESPONSIBILITY” 2001, ILC scrive “ Draft Articles on Responsibility of States for Internationally Wrongful Acts ” Art 1: ogni Internationally Wrongful Act di uno Stato implica la responsabilità internazionale di quello Stato (“There is an internationally wrongful act of a State when conduct consisting of an action or omission: is attributable to the State under international law; and constitutes a breach of an international obligation of the State”) Art 2: cita i casi in cui un atto è attribuibile a uno Stato Art 4 e 7: attribution of conduct (uno Stato è responsabile per gli atti commessi da uno dei suoi organi, anche nel caso di atti ultra vires) Uno Stato può essere responsabile di atti individuali se negligente o colludente. Viene considerato colludente se l’individuo o il gruppo di individui agisce sotto il controllo o istruzioni dello Stato. (nel caso Nicaragua v USA non si è riuscito a provare la collusione statunitense)
Art 12, 13, 14, 15: breaches of International Law (when a State’s act is not in conformity with its obligations regardless of its origin or character. No retroactive application) (“any breach of an engagement involves an obligation to make reparation”) A distintion between strict and fault liability is made (strict is when there’s a liability without fault [intention/negligence], fault is when there’s a liability for one's own conduct [responsabilità diretta]) In questi articoli ci sono i casi della responsabilità dello Stato quando un gruppo criminale prende il potere e successivamente sale al governo, nei casi di abuso di potere delle forze dell’ordine, nei casi di assenza di autorità in un determinato momento vd. Rivoluzionari una volta saliti al potere, nel caso in cui i tribunali nazionali non assolvano il loro dovere nel punire adeguatamente un offensore, nel caso in cui ci sia una breach di una international obligation se questa è valida in quel momento Art 20, 21, 22, 23, 24, 25, 26: circumstances that preclude wrongfullness : CONSENT, SELF DEFENCE, COUNTERMEASURES or REPRISALS (sarebbero violazioni se non fossero precedute da atti commessi da altri stati precedentemente, a differenza delle ritorsions, che invece sono unfriendly, ma still legal. Art da 49 a 54 chiariscono che devono essere compatibili allo ius cogens, devono essere proportional e temporary), FORCE MAJEURE (the force majeure event in question must be unforeseeable or irresistible, it must not be caused by the state, and it must render the performance of the state's obligations "materially impossible”) , DISTRESS (sacrifice of lives to save more lives) and NECESSITY (if it’s the only way to safeguard an essential interest against an imminent and grave peril). Art 30, 31 (cessation) e da 34 a 38 (reparations): consequences of wrongful acts: CESSATION (immediate cessation) and REPARATIONS ( restitution in kind [restoration of the pre-existing situation], compensation and satisfaction ) LEZIONE N6, “LAW of the TREATIES” 1969, “Vienna Convention on the Law of the Treaties” (VCLT) is the main document about treaties. Art 2 of VCLT (definition of treaty) : 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. It is regulated by International Law. ITS BASIS IS
CONSENT.
Who can conclude a treaty? Art 7 of VCLT: VCLT requires the representative of a State to produce full powers in order to adopt the text of a treaty What is the difference between signature and ratification? Normally States use signature to conclude treaties. The final signature is the “definitive signature”. Then there’s the ratification, which is a far more formal thing. Ratification requires a confirmation given by the Parliament. Both signature and ratification are different from accession. Accession is a way to manifest consent by a State that wants to join an already existing treaty. ENTRY INTO FORCE : Art 24 of VCLT: a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. RESERVATIONS : Art 19-23 of VCLT: countries sometimes aim to exclude or modify some parts. The States will be no more bounded by the points it decided to advance reservations on. They are accepted if they aren’t in contrast with the principle of the treaty.
9. STATES’ RECOGNITION
In relation to the recognition: a. none of the answers is correct b. must occur whenever a new state emerges c. it is a condition without which an entity cannot be considered a state d. in today’s international reality is of little use
10. STATES’ RECOGNITION In relation to the recognition of a state, please tick the correct answer: a. states political existence is indipendent from the recognition b. recognition of a governement is necessary for statehood c. states territorial effectiveness depends on recognition d. none of the answers is correct 11. STATES’ RECOGNITION **Somalia is not a state because it lacks an effective government. False.
- SELF-DETERMINATION** UN A.G. Resolution 1970 recognizes the right of self-determination: a. none of the answers is correct b. only if allowed by a state government c. for colonial peoples only d. to any people claiming it 13. SELF-DETERMINATION **An effective right to self-determination, always leads to secession. False.
- REPARATIONS** The obligation to make reparation for damages deriving from an international wrongful act entails: a. restitution in kind b. financial compensation only c. cessation of the wrongful act d. cease of the that act if it is continuing 15. COUNTERMEASURES Talking about countermeasures: a. they are unfriendly and originally unlawful measures b. they are international sanctions c. they are unfriendly but lawful d. they include the right to self-defence 16. STATE’S RESPONSIBILITY States may respond internationally for: a. acts of private individuals if there are no state’s official organs b. non armed reprisals c. no answer is correct d. acts of private parties that they cannot objectively prevent 17. STATE’S RESPONSIBILITY The internationally liability framework: a. is ruled by customary law b. not compulsory for states because it does not originate from a treaty c. does not give rise to legal obligations for states d. it is governed by the Treaty of International responsibility by states 18. INTERNATIONALLY WRONGFUL ACTS When can we talk of an internationally wrongful act according to the 2001 ILC Draft Articles? a. if a state’s conduct is contrary to an international norm b. none of the answers correct c. if a conduct is attributable to a state d. if there’s a breach of international duty irrespective of the perpetrator 19. INTERNATIONALLY WRONGFUL ACTS Any internationally wrongful act gives rise to international responsibility of the state. a. yes, irrespective of the origin and nature of the international obligation b. no, it must be a breach of customary norm c. it depends on the nature of the international duty violated d. no, it must be a breach of the treaty norm 20. IMMUNITY About personal immunity: a. it is conceded to those individuals that personify the state b. no, its synonym of immunity rationae materia c. it is enjoyed by all state representatives d. it applies also to the diplomatic administrative and technical staff 21. PERSONAL and FUNCTIONAL IMMUNITY The adjudicatory immunity of heads of state: a. extends to their private acts during their term of office (personal immunity case) b. doesn’t apply to foreign courts during their office c. extends to
their public and private acts subsequent to the public office d. refers only to their official acts during their public office
22. ENFORCING JURISDICTION Which of the following statements is true? a. enforcing jurisdiction is generally governed by extradition agreements b. universal jurisdiction was first applied to war crimes cases c. states cannot extend their jurisdiction to their nationals abroad d. international terrorism cannot be prosecuted under protective jurisdiction 23. IMMUNITY State immunity from adjudication: a. means that a state cannot be sued before a foreign court unless it consents b. means that a state cannot be sued before its national courts c. it’s an absolute privilege of sovereign states d. applies also to jure gestionis acts 24. PRINCIPLE OF TERRITORIALITY According to the principle to the principle of territoriality a. national court can judge foreigners' acts released on its soil b. a state has jurisdiction over its nationals c. none of the answers is correct d. a state has jurisdiction also over acts committed outside its territory 25. PRESCRIPTIVE and ENFORCING JURISDICTION About prescriptive and enforcing jurisdiction, it is correct to say that: a. the application of one of them doesn’t imply the application of the other b. prescriptive jurisdiction follows enforcing jurisdiction c. none of the answers is correct d. prescriptive jurisdiction follows judicial jurisdiction 26. PRESCRIPTIVE JURISDICTION Talking about jurisdiction to prescribe: a. none of the answers is correct b. it’s a synonym of enforcing jurisdiction c. it warrants effective compliance with the national law d. it’s the state’s power to physically ensure the application of its laws 27. JURISDICTION Jurisdiction can generally be defined as: a. state’s right to employ its powers over its nationals and territory b. the influence a state can exert on foreign nationals c. none of the answers correct d. the right of each state to govern its internal affairs with independence DOMANDE MIDTERM PRINCIPIO DI TERRITORIALITÀ in STATE'S JURISDICTION 1 - Perché non è sufficiente oggi applicare il criterio di territorialità per stabilire la state's jurisdiction? Perché molti crimini hanno carattere transazionale e dunque più di uno stato può avere interesse a esercitare la propria giurisdizione. GERARCHIA DELLE FONTI: le eccezioni 2 - Il Diritto Internazionale contiene qualche eccezione alla regola generale per quanto riguarda il fatto che non ci sia una gerarchia. L'articolo 103 di UN Charter è una di queste. PACE DI WESTFALIA 3 - Perché la pace di Westfalia è percepita come un turning point della storia e dello sviluppo del Diritto Internazionale? Perché ha inaugurato lo stato nazione come "primary source of authority".
RESERVATION
13 - Reservations to a treaty's rules... can be presented when acceding to a treaty. STATES' RECOGNITION: declaratory theory 14 - On States' recognition, the declaratory view implies that... the creation of states is a matter of fulfillment of legal criteria and one of effectiveness. STATES' IMMUNITY 15 - From where is state immunity derived? States' immunity as such derives from the sovereign equality of states.
