Appunti International Law

International law 26/09

National ordinament

National ordinament (Western countries):

• Constitution (principle of nation + fundamental rights);
• Laws;
• Decree.

In Arabic States → Sharia.

News in IL: Supranationality

Each state has its own sovereignty but, you have to cope with the idea of supranationality, ex. Costa vs Enel and the idea of primacy of the UE law above the national ones, Van Gend, Loos vs NL and the direct principle for citizens.

Sources of International law

Statute of ICJ, art. 38:

• General principles of law + international custom;
• Treaties;
• Acts of the international organisations.

International treaties: legal act establishing rights and obligations between international actors.

NB: same thing but different names, such as agreement, convention, covenant, etc.

Protocol: still a treaty but a very specific one, bc it usually modifies the one to whom it is added to or it just adds something new.

Exchange of notes: notes, letters explaining some points to a State/head of the State/minister etc.

Memorandum of understanding: not legally binding, sharing same view on same problems.

Who is an international actor?

• States (sovereign);
• International organisations;
• Federal sub-entities (ex. CH cantons, federal regions etc.).

There are some different categories: bilateral treaties, multilateral treaties that can be universal or regional.

Regional bc they are continental, but there might be clauses saying that they are open to states non-member.

Treaties can be permanent, or denunciable, have a limited time of life, you can have condition for being a member or they can have unlimited accession.

How is created a treaty?

Step 1, Negotiations: plenipotentiaries, delegation that act with some given instructions and have a negotiation mandate with a limited action. A new way is that to use technology, for example emails, video calls, Skypes and allow even private citizens to participate and give an opinion (anyway the opinion is not part of the negotiation).

Step 2, Signature: just for saying that the document signed is the one discussed during the negotiation, no legal value.

Step 3, Ratifications: gives the legal value and makes the act come into force.

State are represented by plenipotentiaries habilitated to negotiate in the name of their respective governments. Usually negotiations are secret.

Competent organ: People upon referendum, Parliament or Government depending on the importance of the matter.

Negotiation → plenipotentiaries restricted by internal instruction (negotiation mandate).

Signature → treaty not yet in force.

Ratification → National declaration to be bound by the treaty. Issued following approval of the text by the competent domestic organ. Entry into force subject to a quota of accepting states, example.

International treaties: generalities

Definition: legal act establishing rights and obligations between international actors.

Inconsistent terminology: agreement, convention, covenant etc.

• Protocol, example;
• Exchange of notes, example;
• Memorandum of understanding, example.

International actors: sovereign states, international organizations, exceptionally federal sub-entities.

CH: cantons art. 56 Cst.

Different categories:

• Bilateral treaty/multilateral treaty (regional/universal);
• Regional with an universal vocation example;
• Unlimited accession (example)/limited accession;
• Permanent treaty/denunciable treaty.

A Memorandum of Understanding (MoU) or letter of intent is a legal document describing a bilateral or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action and may not imply a legal commitment. Secret diplomacy, usually not published, not formally binding, express a common desire, no need for ratification: Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US and Cuba, meant to criminalize hijacking in both countries (February 3, 1973).

Cantons fear for their areas of autonomy to be infringed by the central state by way of international law: what would be impossible to do for the national legislator, would be imposed by way of international law.

P. Ex fixation d’une frontière (pas dénonçables).

Schengen.

Convention européenne des droits de l’Homme.

L’actuel art. 141, al. 1, let. d, ch. 3, Cst. ne prévoit l’application du référendum facultatif que pour les traités qui entraînent une unification multilatérale du droit. La mesure proposée vise donc à introduire un instrument indispensable à l’heure actuelle, dans la mesure où il est de plus en plus créé de règles de droit au niveau international. Il s’agit de faire en sorte que les droits populaires soient les mêmes en matière de droit international qu’en matière de droit national.

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NB: remember the difference between signature and ratification.

Switzerland → treaty making power.

In case Swisse wants to join a supranational org. it needs a double mandate, from the cantons and from the people (double majority).

Same if the country wants to join some international organizations which but it’s national/international/multilateral defence.

What’s the problem? New global word, very fast and the treaty procedure is very slow.

Are there solutions? Still no solutions.

But → new perspective to IL, more inclusive and dynamic.

Now we have reservation and protocol: idea is that is better to have more States interacting, discussing, participating to the negotiation even though they do not accept the whole treaty.

Institutional justification on the ratification process

Its function is to safeguard the legislative power of the Parliament (democratic decision making process) or (but to a lesser extent) the autonomy of national sub-entities (federalism).

By way of the ratification process, governments are prevented from obtaining by way of international treaties what they cannot obtain on the domestic level.

In other words: no circumvention of the opposition of the Parliament or the Federal States.

Obiezione Francia

Conformemente all’articolo 35 paragrafo 2 del Protocollo, la Francia fa obiezione all’entrata in vigore automatica del Protocollo.

Infatti, la ratifica del Protocollo richiede l’autorizzazione del Parlamento in applicazione dell’articolo 53 della costituzione francese. La Francia non è dunque in grado di accettare l’entrata in vigore automatica del Protocollo allo spirare di un periodo di due anni dopo la sua apertura all’accettazione, ossia il 1° ottobre 2000, nella misura in cui le procedure interne avviate a tal fine non siano state ancora ultimate.

NB: exc. Riserva degli USA su i corsi.

NB: reservations and objections.

What is a reservation?

Definition: «unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (Vienna Convention on the Law of Treaties (art. 2 (1 d)).

Favored in order to increase the number of member states. Allowed if not expressly prohibited by the treaty or inconsistent with the scope and goal of the treaty (ibidem, art.19).

Withdrawal of reservations: always possible.

Reservation or declarative interpretation?

Other examples of reservations

United States Convention on the Prevention and Punishment of the Crime of Genocide in 1986. The reservations taken were:

That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.

Convention against racism.

Reservation regarding the list of fundamental rights but acceptance of procedural means.

Prohibited: the whole treaty or only certain articles.

Implementation of art. 4 UN 1966 Convention by Swisse

Article 261bis Criminal Code, coupled by a reservation of freedom of expression:

La Svizzera si riserva il diritto di adottare le misure legislative necessarie all’applicazione dell’articolo 4 tenuto debitamente conto della libertà di opinione e di associazione, segnatamente formulate nella Dichiarazione universale dei diritti dell’uomo.

By USA

I. The Senate’s advice and consent is subject to the following reservations:

(1) That the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and law of the United States. »

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What is the impact of an objection? A statement reserved to a reservation.

US legislative and jurisprudential impact

US → General Reservation, priority to freedom of expression → Hate speech allowed in public and private spheres.

CH → reservation protecting essential aspects of freedom of speech → Hate speech allowed only in private spheres.

FR e GER → no reservation, hate speech banned both in private or public.

Convention of Genocide

Convention of Genocide → more than a simple paper but introduces mechanisms for enforcing it and protecting it, such as article IX that says that any dispute concerning the treaty shall be submitted to the ICJ.

What the Convention did is give a generally clear and approved definition of what is a genocide, the particularities etc.

Pascià Omar Al Bashir of Sudan is charged of genocide of Dharfur, a minority of muslims living in Chad. The Hague charged this Pascia for genocide and there is a mandate of arrest for him. Sud Africa actually protected him from getting arrested.

ICJ has the right to solve problems concerning interpretation, disputes etc.

Art VI says that in case it is needed a judgement about a case of genocide, it must be done by a specific court of tribunal.

USA: why ratification?

Senator Proxmire really wanted to ratify the convention, but there was a big opposition because of the military commitment of the USA all over the world.

Why he wanted to ratify the Convention? USA had to give a signal to the rest of the world by being part of an humanitarian treaty.

He won with the compromise, but the declaration are really high → even the declaration are a bit strange to understand, for instance there will no be extradition of the USA military personnel.

NB: the USA has no protection for the citizens, if a USA citizen makes a crime in any part of the world they can be extradited for being persecuted abroad.

There have been other 9 states joining the USA, among them Yugoslavia and other countries of Asia.

About the Italian objection, what are the consequences?

The doctrine is still divided: some say that regarding the country that objected to the reservation, this country is not bounded by it. The others say that it is an important political declaration but has no legal value.

Administration and publication of treaties

Multilateral treaties: there is a depositary State or an International Organization. A State is chosen for collecting the means of ratification, or an IG and generally is the UN. A State usually chosen is Switzerland, because of its neutral status, moreover the depositary State is the same where the negotiations took place.

Lugano was the place for the Lugano convention, for the International private relations, such as marriage, divorces etc. It concerned the intra-European relation (UE and Switzerland + States that want to join).

The function of the depositary State is that to collect them, review etc. and publish it but no study if there are legal or illegal reservation, no legal evaluation. So, the work is mostly that of a secretarial.

The official language is (or are) defined by the treaty → it might be even different from the languages if the States members.

UN may decide to publish treaties that are not in force yet, because of their impact in the international community. Same does Switzerland, on the government website there is a space reserved to the international law publication, reporting all the treaties and convention to whom Switzerland is part and what is their topic. Some does Italy.

Multilateral treaties: Depository State or International organization.

Example: Switzerland as depository state.

Official Collections.

United Nations collection of treaties.

Switzerland: art. 3 Fed. Law on official publications/special section of the systematic collection of laws “International Law”.

Beware: always check ratification and reservation lists!

Official language(s): defined by the treaty; may not coincide with the official languages of Member States.

Secret treaties

Secret treaties → UN wants no secret treaties.

Ratification of Secret Acts: usually there is not a ratification, it’s only a governmental sign, by going to the Parliament the act is going to be public, even though there are some sections discussed “a porte chiuse”. What happens usually is that only the “public” part is shown to the Parliament, while the rest is secret, and it’s known only by the government or the negotiators.

Secret acts → there are different types.

• Treaties that are wholly secret, they exist, and are usually bilateral (or among 3 countries);
• Normal treaties where it is secret that there is a State secretly member, ex. Treaty among It and CH, but nobody knows that even SPA is part (esempio inesistente). Es. Reale, GER-IT in 2WW + JAP not mentioned as part of the treaty;
• Treaties secretly mention a military or defensive alliance, there is a classical defence pact among the countries, but the secret part refers to military interest and concordance of territories (es. Ribben-Motolov).

Extinction of treaties

Common will of all member States:

• Expiration of time limit;
• Denunciation by a single member state;
• Minimal number of member states required for the survival of the treaty;
• Example, Succession of states: diverging practices;

Ex.: treaties ratified by the former USSR are considered to bind the new independent states as long as they do not express a will to the contrary.

Specific notification of the successor State to be bound by previous obligations of the predecessor.

Example: Declaration of the Federal Republic of Yugoslavia of April 1992, notified to the UN Secretary General (see Exercise 1.2).

New political government, new organizations is not a problem of succession of states: international obligations are still in force.

Invalid treaties

46ss Vienna Convention on the Law of Treaties/ITA) → art.

When?

• Corruption/Coercion (art. 50-51);
• Misunderstanding (art. 48);
• Agent without power to conclude a treaty? (art. 47);
• Non-Compliance to the internal ratification procedure? (art. 46);
• Breach of treaty may cause temporarily suspension;
• Violation of peremptory norms (see 1.42).

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International custom

Unwritten rules play a more significant role compared to domestic law… but their existence is often difficult to establish. Two criteria:

• Concordant and constant practice;
• Opinio necessitatis.

Ex. Corfu Channel Case, UK v./Albania, 1949 (Customary duty to notify mines).

Protest: declaration not to be bound by a customary rule.

Efforts to codify customary rules.

Mainly under the auspices of the United Nations (codification division).

Ex: Vienna convention on diplomatic relations (1961): art. 29-39 diplomatic immunity (EN/IT).

Nevertheless, not all rules can be codified; ex.: the nuncius as dean of the diplomatic corps.

Non written means uncertainty.

Objective criteria: The notion of practice establishing a customary rule implies that the practice is followed regularly, or that such state practice must be "common, consistent and concordant". Given the size of the international community, the practice does not have to encompass all states or be completely uniform. There has to be a sufficient degree of participation, especially on the part of states whose interests are likely be most affected, and an absence of substantial dissent. No persistent objection of a State by acts or declarations.

Subjective criteria: psychological element, states think that the rule is necessary, they are convinced by its rationale and should be obeyed. The fact that there was no use of nuclear weapons since 1945 – no practice – does not mean that there is customary ban on nuclear weapons.

The Corfu Channel Case (UK v. Albania), the first case decided by the court, was brought before it at the suggestion of the Security Council. On 22 October 1946, two UK destroyers passing through the Corfu channel off the Albanian coast struck mines whose explosion caused the death of 46 seamen and damage to the ships. The British thereupon mineswept the channel. Albania claimed that it had not laid the mines. The court found Albania "responsible under international law for the explosions… and for the damage and loss of human life that resulted therefrom" and determined the compensation due to the UK at £843,947, equivalent to approximately US$2.4 million at that time.

Art 22: inviolabilité de locaux; 27 (3): valise diplomatique.

Other sources of IL

Also sometime referred to as principles of mature legal systems or of civilized countries…

Unclear and controversial category which is supposed to include legal principles common to a large number of systems of domestic law.

Ex.: Considerations of equity or proportionality.

Ex. Meuse Case, Belgium v. The Netherlands (1937), “In equity, the Netherlands cannot ask Belgium to discontinue the operation of the Neerhaeren Lock when the Netherlands remain free to continue the operation of the Bosscheveld Lock.

Powerful state might play a more decisive