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that organization which began its life in the half of the 90s and this organization provide for certain rules in the field of trade law. Based on reciprocity but rules which are the same independently of the economic power of the states under consideration.
2 LEZIONE
The question of legitimacy of int.law. this is a false problem. Legitimacy means the effectiveness of int law and the effectiveness of the way in which int law was created. The key notion is the consent expressed by the states that is always necessitate in determination or creation of rules, laws etc.
The international value system is a group of common goals (int.legal order today is mainly based on solidarity towards goals like environment, common rights).
The content of the course
- Subjects of the international legal system :
a- states b- insurgents c- national liberation movements
2. Sources of international order
private source like=
a- custom b- general principles recognized by civilized nations
and =
c- treaties : from stipulation to termination (secondary sources of int.law but at the same time are the main sources of int.law.) d- sources stemming from treaties (source of a third category: f.e. the regulation of the EU, the decision of the security council of the UN). The legal basis of these sources are fund in the treaties e- unilateral acts Æ recognition, promise etc. a- f - contracts, unilateral act in private system.
- Responsibility for internationally wrongful acts (in case of violation)
In case of violation?
- international dispute settlement Æ in very few case you find a dispute in front of an international judge between an international organization and a state or between two international organisations. This fourth point, is one of the most important area of int.law. We have nowadays a huge number of international tribunals (human right, in general int.law, int court of justice, int tribunal for democracy) but also as regards int. disputes, in the field of investment law Æ this is a very particular situation because in the field you find a settlement of disputes between the host state of investment (African state f.e.) and a private company which invested in that state. The basis is always int.law. In this case, the basis is always a treaty or two treaties: int.centre for the settlement of dispute and a bilateral
investment treaty between the state which host and receive the investment and the state to which belongs the private company that invested in that foreign state.
Ex Æ is very common that Venezuela appears before a tribunal by reason of investment law disputes. Venezuela decided 5 years ago to deprive the property of some foreign companies, 2 Italian companies wrote a case before an arbitral tribunal against Venezuela in order to receive compensation. This is international dispute. Behind the private company there is always a state!
- Relationship between national and international law Æ int law and domestic law are totally separated. Tradition int lawyers always use to say that national law is a mere fact for the int.lawyer. The Italian constitution or Italian law are mere question of facts with int law. The judgment of the EU court of human rights, you find a typical structure of the judgment itself: find descriptions of fact and the legal assessment of the fact, the treatment of description of national legislation likes solely the boding fact of judgment not in the part of law. A state cannot invoque its own legal system except in very special and particular circumstances.
THE SECOND PART regards the main rules of international law.
- State sovereignty and its alleged decreased relevance in current international law
Sovereignty is the key content of international regulation. In the EU, the long-term decisions are not taken within the organization, but interstate, intergovernmental dynamic. Especially when it is necessary to decide the allocation of extraordinary resources f.e.
- The regulation of sovereign and non-sovereign spaces: delimitation of frontiers;
we’ll see the limitation of frontiers. Decide the frontier between states. F.e. we have with France a dispute regarding the limitation of maritime frontier in the western part of Italy. In 2015 italy and France signed an agreement about the frontier. In this agreement our fishing companies, are in trouble because they cannot fish in some area of the French maritime zones. But the limitation of frontiers both land and maritime occurs by treaties. The frontier of African states, are artificial decided by the European state in the Congress of Berlin, look the frontier between Egypt and Sudan.
- The law of the sea
- State immunities
it is a question of int.law. The immunities of foreign states, as such, is different from immunity enjoying by state organs. If you want to bring a case before a national judge against France, it would be problematic. You can bring the case in front of a judge just in specific cases.
The law of diplomatic is very ancient. It was codified into the Vienna convention. (NB: specify the year since there has been so many Vienna conventions). Here Æ 1961 convention on diplomatic relation.
- Immunities of State organs other than diplomatic agents
- International Criminal Law
A crime against humanity, war crimes or aggression. International criminal court is an institution tribunal. Int.criminal law is an international criminal judge which was established in Rome 1998 and it judge crime committed by individuals.
We have 2 criteria in order to assess whether an entity is subject or not of int.law: effectiveness and independence. These are the criteria, the test The test which allow us to uncertain whatever a given state is a real subject or not. Apply to states and also int.organizations, to sea, to insurgents,
f.e. the ISIS was a subject of int.law. the ISIS was an entity which took an effective and independent control over the territories of 2 diff states: Iraq and Syria.
FULL VS. PARTIAL INTERNATIONAL LEGAL PERSONALITY
- Advisory opinion on Reparation for Injuries, in which the ICJ stated that the ‘subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights’ ( Reparation for Injuries _, 178)
- Only States are accorded FULL legal personality
- Other subjects of international law, such as international organizations, are only considered partial subjects in the sense that their rights and duties are limited by the founding treaties_
The international court of justice, in a famous advisory opinion, 1948, stated that subjects of international law in any legal system are not necessarily identical in their nature or in the stands of their rights. According to this theory, only states are full in joy a full legal personality while other subjects are vested with limited rights and limited obligations. Only consider partial subjects, their rights and duties are limited, in the case of international organization, by the bounding treaties.
Because states can realize what is in abstracto provided for/by int law rules. (=are centred with notion of sovereignty, exercise of sovereignty, the limit of sovereign. But we talk about sovereignty in any case).
F.e. the EU, what can or cannot do, entirely depends on what founding states decide in the founding treaties of the European union. What a state can or cannot do, depends on general int.law but in a larger perspective, is stated by states.
Original and Derived/created Subjects of International Law
_- There is a distinction between original, or born, subjects of international law and derived, or created, subjects of international law.
- States are qualified as original subjects of international law
- International organizations do not possess international legal personality by their own will but depend on the action of States as their creators. Hence they are often qualified as created subjects of international law_
This distinction derives from an empirical decision of what is social basis in int law.
A state is a human phenomenon, social made up by human beings. The state begins grows up and normally dies like all human phenomena. State only terminates naturally or by wars. (Ex. The extinction of the ottoman empire). The extinction of the state is determined by the extinction of 2 of the 3 elements of a state: government, population, and territory. The termination of some states, (Yugoslavia as a state, federal socialist Republic of Yugoslavia does not exist anymore), the Austrian empire was a giant in the history. States died.
Int organization do not possess a personality. This Is not a spontaneous phenomenon the creation of an int organization. They are created by the will of states. Often qualified as Created subjects of int law.
Domestic and International Legal Personality
_- International legal personality does not automatically imply national legal personality and vice versa
- The EC was, for example, expressly endowed with both national and international legal personality. While Art. 281 ECT provided for international legal personality_
States accepted f.e. that the EC now the EU, enjoyed personality within their own legal systems. It is not obvious to be an international legal person does not automatically mean enjoy a domestic law personality. With some practical consequences – f.e. in contract law, to rent an apartment etc. practical daily problem.
Distinction between domestic legal personality and international legal personality
In international law personality is a quality Æ which int law simply recognize and does not confere to subjects. Situation like: law takes note of personality, int law does not constitute/create subjects.
There are only questions of fact that determine the int legal personality or not: every entity capable to exercise an effective control and to be totally independent form any other entity, is a subject of int.law. Again - effectiveness and independence.
Effectiveness is in particular a notion that we will see in 3 diff fields: subject personality, int. responsibility, dispute settlement.
THE STATE
• The international legal personality of States has never been put into question Æ but it is the mere
description of what happens, not a legal explanation of this «factual» phenomenon.
- International law originated amongst the States of Europe following the Peace of Westphalia of 1648
There is not a legal explanation of this phenomenon, this is the key to understan what happens today. Taiwan is an example of statute of intenrational legal personality and of the limits of the recogniztion. Italy does not recognize taiwan as a state, but nonethless, taiwan exist, as a state, is a subject of int.law, despite the fact that politically states do not recognize taiwan as a sovreign state.
Characteristics of States
Are empirical characteristics.
1. States have plenary competence to perform acts, make treaties, and so on, in the international _sphere
- States are exclusively competent with respect to their internal affairs
- States are not subject to compulsory international process, jurisdiction, or settlement without_ _their consent
- States are regarded as ‘equal’_
5. Derogations from these principles will not be presumed Æ Lotus principle
Example Æ Venezuela with the president Nicolas maduro, last years, the president maduro who was re-elected for a 2 mandate and this re-election was contested by the president of the national assembly. Uai Do, the president of the national assembly, Self-proclaimed as the president of Venezuela and he was recognized by the USA and by other states (UK, 20/27 states of EU). Uai Do does not exercise any formal control of the Venezuela territory Æ the army, the police bodies, all the regions, local governmental authority are only in the hands of Maduro. For int law, the state, is that representing by maduro. Independently of our opinion of this democratic attitude, of what we think about his politics, its government exercises an effective control of the community and above all, it exercises the representation of Venezuelan community in int. relations.
ART1 Montevideo Convention Æ this is a definition of statute.
a- Permanent population is a key element for statute, without territorial community/population there is no state, there is no question of exercising power over a given community. States are territorial entities, but they are territorial communities, aggregates of individuals sharing a common legend, pact. A permanent population is necessary for a state to exist.
b- Defined territory simply means a portion of heart with clear boundaries. Int. law does not prescribe the minimum area for a state to be considered. We have in int. community states like India, brasil or China or US with a large area and states like Luxemburg whose extension is minimum. There is no distinction for int. law between large or small countries.
c- Government , in this specific sense, means the exercise of the public authority over a territorial community.
Government just means for int. law an effective government. The government of north Korea is not a democratic government, but it is not in question. For statute and for int. personality. The question here is “does the north Korean government exercise all control over the north Korean territory/community?” Æ not if there is a democratic or not democratic system but if the government of the north Korea exercise power over the territory.
There is no rule in int. law which prescribes, imposes to government to be democratic re-elected. It is evidence Æ in almost 200 states of the int. community, those genuinely democratic are no more than 30/35. And also with regard the so called democratic state, we have something to say about democratic guarantees or freedom, protection of individual rights. For instance, Italy is a democratic country with a parliamentary assembly, an independent judge etc. BUT in the world ranking, with respect to freedom of press, Italy is in 49 places not in the first 20.
The capability of that state to be engaged in diplomatic relations in a given moment.
INDEPENDENCE
Independence is the central criterion for statehood.
The meaning of ‘independence’, however, is not the same for all purposes. a) Formal Independence b) Real or Actual Independence What Relation between Formal and Actual Independence?
FORMAL INDIPENDENCE Æ A state is sovereign without any influence from abroad, but formally a State is independent and its constitution, its funding derives from itself.
Formal independence involves the exclusiveness of competence. A state, formally independent, determines its own political goals without any formal interference by other states.
REAL OR ACTUAL INDIPENDENCE Æ the exercise of sovereignty without influence.
Issue Æ States which are independent from any other state are very few. Italy after 2WW was formally independent but in reality, receive influence by USA.
What matters Is formal independence and the fact that the political dependency of a state or another state, does not amount to the lost of effectiveness. What matter is that even in an interdependent world, a state does not lose its own effective control over its own community and int. relations.
THE SO-CALLED INTERNATIONAL LAW CONDITIONS FOR STATEHOOD
_- The classical criteria for statehood were essentially based on the principle of effectiveness
- But, e.g., an entity established in violation of the principle of self-determination—such as the Bantustans in South Africa—even if existing as effective governmental units, may not be States._
So-called Æ it is debatable whether int. law imposes condition on statehood, on the capacity of a given entity to be considered as a state.
Certain int law rules, which acquire the status of territorial rules of general int law, such as the principle of self determination of people, have an influence on statehood.
States establish in violation of this principle of self-determination, (=under which a given population is endowed with the right to acquire independence if the population in question is subject to occupation, military attack etc. in this case the population got the right to self-determinate).
PRACTICE
_- “Badinter” Commission, Opinion n. 1
- Italian Court of Cassation
- BOTH highlight the central role of the three elements: territory, effective government, and population._
Here mention two statements made by the so called Badinter commission. 1994, in which this commission clearly stated that effectiveness and independence are the main criteria for statehood.
The Italian court of cassation, 1984, clearly stated that the state is defined by 3 elements: population, government authority and territory.
RECOGNITION OF STATES
- IDI, 1936 Æ art. 1 (Brussels resolution): “ La reconnaissance d'un Etat nouveau est l'acte libre par lequel un ou plusieurs Etats constatent l'existence sur un territoire déterminé d'une société humaine politiquement organisée, indépendante de tout autre Etat existant, capable d'observer les prescriptions du droit international et manifestent en conséquence leur volonté de la considérer comme membre de la Communautéinternationale »
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1RQ-recognitionà non-recognition stems from the law of international responsibility (art. 41 ARSIWA)
