Appunti Introduction to European and International Law

Part I: General Principles

Topic 1: Introduction

a) Public International Law (a/k/a Law of Nations)
b) Private International Law (a/k/a Conflict of Laws)

Topic 2: The territorial ambit of the jurisdiction of a state

Topic 3: The sources of international law

Agreement of the parties, customary law, instruments: bilateral agreements, multilateral agreements, treaties, conventions.

Topic 4: The sources of European Union law

Primary and secondary law, treaties, directives, regulations, decisions.

Part II: Private International Law Topics

Topic 5: Applicable law

• Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations).
• The Hague 1955 Convention (Convention on the Law Applicable to International Sales of Goods).

Topic 6: International dispute resolution: Jurisdiction

Bruxelles I Regulation

Topic 7: International dispute resolution: Arbitration

New York 1958 Convention

Topic 8: The CISG

United Nations 1980 Convention on Contracts for the International Sale of Goods

Topic 9: Negotiating and drafting international contracts

International law

International law is also known as the law of nations and is related to relationships between states law between the nations - the term "nation" may be ambiguous - we usually refer to “state” (or better “independent state” or “sovereign state” to refer better to the relationship between people and business between states). There is no law above the nations but only among the nations. Scholars developed the concept of the need for international law. Before the 17th century, international law was not the matter for people living in Europe. In the 17th century, legal relationships between foreigners weren’t many because it was difficult to travel and have business abroad. As the world gets closer and it is easier to have international transactions, the more the need for international law. The starting point of this complexity is the "Westphalian sovereignty" or "state sovereignty" principle rooted in the "Peace of Westphalia" (1648). Before this Peace, there were no sovereign states.

While the terms country, state, and nation are often used interchangeably, there is a difference among them:

• A country is a territory.
• A (sovereign) state (also an independent state) is a state that has the highest jurisdiction over a certain territory and is a territory with its own institutions and populations that has a permanent population, territory, and government.

Some features of sovereign states are:

• Space or territory that has internationally recognized boundaries/borders. Within these borders, the state has complete autonomy, while it has non outside of them. If someone infringes its border, the state may react.
• People who live within the boundaries on an ongoing basis.
• Regulations governing domestic affairs.
• An internationally recognized government (by other states) that provides public services and police power and has the right to make treaties, wage war, and take other actions on behalf of its people.
• Sovereignty, meaning that no other state has power over the country's territory. Other states should not interfere with the domestic affairs of other nations.

Today there are 197 recognized sovereign states in the world, out of which 193 are members of the United Nations; Palestine and the Holy See are excluded from the UN, while Taiwan (not recognized by China) and Kosovo are recognized by some but not all members of the U.N. Entities that are not Sovereign States are: Hong Kong, Bermuda; and Northern Ireland, Wales, Scotland, England which are non-sovereign parts of the United Kingdom.

• A nation is a large group of people who inhabit a specific territory and are culturally homogenous as they are connected by history, culture, a common language, institution, religion, and another commonality but are not necessarily subject to a state. Example: Catalonia, Tibet, Quebec, the Indian Nations of the US.

Nation-state is a cultural group (a nation) that is also a (sovereign) state ("nation-state" is the legal concept developed under the definition of the Westphalian Sovereignty principle) the idea of "Nation-State" and consequently of "Jurisdiction" arose after the Peace of Westphalia (1648).

"Westphalian sovereignty" established the current international legal order characterized by independent sovereign entities known as "nation-states", which have equality of sovereignty regardless of size and power, defined primarily by:

• The inviolability of borders of each nation-state; cuius est regio.
• Non-interference in the domestic affairs of another nation-state (eius est et religio).

From this period onward, the concept of the nation-state evolved rapidly, and with it the development of complex relations that required predictable, widely accepted rules and guidelines. The idea of nationalism, in which people began to see themselves as citizens of a particular group with a distinct national identity, further solidified the concept and formation of nation-states.

But what was the system before?

The roman law: the universal law of the peoples of Europe. Romans had conquered everything, and there was just one nation: the Roman Empire there was no internationality because the legal structures were all provided by the empire. Romans annexed territories and adjusted their law, expanding it over the newly conquered states.

Romans developed throughout the centuries the “civil law”. In the third century BC, citizenship was a privilege that marked off Romans from other peoples and Romans were expected to observe higher standards of conduct than others. Civil law was the proud possession of Roman citizens and could not be extended indiscriminately to peregrines. Where one or both of the parties was not a citizen, it was inappropriate to apply the traditional civil law to their disputes.

At first, when non-citizens were relatively rare, the Romans resorted to the fiction that the foreigner was a citizen in order to bring a case within the scope of the civil law. When the empire extended, the Romans solved the problem in a typically pragmatic way by the recognition that Roman law consisted of two kinds of institutions:

• There were first those legal institutions, such as traditional ceremonies for the transfer of property from one person to another, which were peculiarly Roman and therefore must be reserved for citizens.
• There were also other institutions of Roman law, which were considered to be found in the laws of all civilized people.

They collectively formed what the Romans called the ius gentium, or law of nations, in contrast with the traditional civil law, which was a set of international recognized rules. The ius gentium was available to citizens and non-citizens alike. Later, when they speculated about why such rules were universally recognized, they suggested that the reason must be that they were based not on traditional practice but on the common sense, or ‘natural reason’, which all men shared as part of their human nature. It was so general that it was sometimes called as natural law (ius naturale).

After the Roman Empire – the Middle Ages. The dissolution of the Roman Empire led to a fragmentation of the territories to small local entities under the control of kings, governors, etc… During the European Middle Ages, there were very limited interactions between foreigners.

• The inhabitants of the territories ruled their legal relationships through their personal law (the law of their status) - not the rule of citizenship.
• The governors (Kings, Princes ...) focused their legislative interventions in public international law to determine alliances with other territories, the area of their territory. Were only concerned on the legitimacy of their power and not about the people.

International law was concerned primarily with the purpose and legitimacy of war, seeking to determine what constituted a "just war”.

When the population began to increase, the population arranged themselves their law.

Medieval guilds

The guilds were an important part of city and town life. Each profession/trade arranged its internal ruling and self-governed itself. Guilds were separated from the government of the city. The members were free independent master craftsmen who hired apprentices to become journeyman or day worker.

Guilds were:

• Created to preserve the rights and privileges of their members: only members of the guild may locally trade to consumers. Foreigners may trade only wholesale to Guild members;
• Exclusive, regimented organizations: they define the standard qualities of the products and the rules to be followed by their members, the guilds have internal arbitration courts devoted to solving disputes among its members and among members of the guild and foreign merchants;
• Separate and distinct from the civic governments, but since the functions and purposes of guild and civic government overlapped, it was not always easy to tell them apart, especially since many well-to-do guildsmen were prominent in civic government.

Merchant guilds began to form during the Medieval period. “Merchant” comes from mercatant or mercatans, mercatare the Latin formed from the present participle of (“to trade”, “to traffic” or “to deal in”). They started to trade internationally and also in faraway countries, e.g., merchants in Venice dealing with China.

The flourishing of international economic relations in Western Europe at the beginning of the 11th century caused the formation of the so-called “LEX MERCATORIA” or ‘Law Merchant’, a cosmopolitan mercantile law based upon customs and adjudicated and enforced in cross-border disputes by ARBITRATION in the market tribunals of the various trade centers. Some scholars say that it is still alive today. It determined arbitration.

This law resulted from the effort of the medieval trade community to overcome the obsolete rules of feudal and Roman law which could not respond to the needs of the new international commerce. In the 15th and 16th century, the inefficiency of International Law upon the medieval ages and the Renaissance stressed in European countries because of several factors and among them:

• The implosion of Christian unity after Martin Luther
• The concurrence of the several European countries in exploiting the new colonies upon the discovery of the Americas and they exploded in the Thirty Years' War (1618 - 1648), finally settled by the Peace of Westphalia (1648) that provided the grounds for the contemporary principles of International Law. It determined it was time to have independent states and sovereign states. It cut off all relationships with citizens and foreigners and now the state has control.

Development of Principles of International Law upon the Peace of Westphalia was possible because of the accrued works of several scholars, and traditionally the prominent are considered to be: Francisco de Vitoria (1486–1546), Francisco Suárez (1548–1617), Alberico Gentili (1552–1608) considered to be the founder of international law, Hugo Grotius (1583–1645) who wrote “De Jure Belli ac Pacis” (1625). They created the legal concepts that were used by the kingdoms of the time to justify colonialism; starting from the discovery of America by Colombo more international trade and imperialism so clashes also in the sea or on other continents. Piracy was a huge problem as well.

Video:

Law of Nations flourished in response to the coexistence of different states, particularly during the Discovery Age during the 16th and 17th century and it was concerned with issues like the relations between rulers, the use of oceans, diplomatic relations, rules of war and territory acquisition. The essence of this new set of laws can be sat back to the Spanish conquest of the New World where the jurists Francisco de Vitoria and Francisco Suarez of Salamanca were among the first scholars to affirm international law’s universality. They also advocated that the indigenous people should be treated as nations that have their own legitimate interests, as they are equal to the Christian European states and that therefore the war against them could only be justified on the grounds of a just law.

Another important founder of international law is the Italian professor Alberico Gentili who has been called the originator of the secular school of thought in international law, as he minimized significant theological theses. He wrote three books on the law of war. However, it’s the Dutch jurist Hugo Grotius that is considered as the father of modern international law, being one of the first scholars to articulate an international order that consists of a society of states governed by treaties and customs and not by force or warfare. Grotius was also concerned with the conflicts between states and the Church, as he secularized international law by separating it from theology and Divine law, by saying that the law of nature would be valid even if there were no God. In his books, he provided a systematic overview of the international law of war and peace. He laid down a system of natural law principles that bind all people and nations regardless of local custom or rules. He also emphasized the doctrine of the “freedom of the high seas”, which was relevant to the colonizing of the new world and rejected the Portuguese concept of the “closed seas” and emphasized free trade by saying that high seas belong to all.

Westphalian Sovereignty

The Peace of Westphalia solved some problems but also created new ones. Establishes the Principle of Westphalian Sovereignty, according to which each state is autonomous to the others and sovereign over its territories (everything and person within its border) and does not accept any interference from foreigners or other states. By providing the concept of state, it switched the law of the citizen from their personal law to the law of the state.

- The closing of each legal system to the other legal systems – territorial principle/ territoriality principle: i.e. the principle of public international law under which a sovereign state has exclusive jurisdiction for all the matters/people within its borders but is barred from exercising jurisdiction beyond its borders, with abandoning of other principles such as the principles of nationality/personality, the protective principle, and the eventuality of universal jurisdiction.

- The overcoming of International Law. The Westphalian Sovereignty principles relied on nation-states. The key principles are:

• The principle of the sovereignty of "nation-states" and the fundamental right of political self-determination of each "nation-state".
• The principle of legal equality between "nation-states".
• The principle of non-intervention of one state in the internal affairs of another "nation-state".

It created the problem of legal relationships between foreigners. If a state claims the exclusivity of ruling over people in its border, how to solve the relationship between states and people of different states? Which state has the last word between for example a husband from one country and a wife from the other, since both states claim exclusivity and final word over the solution? There is no sovereignty over the "nation-states" (each state has exclusive jurisdiction beyond its borders) and no other entity may claim authority over the affairs in the territory of a nation-state. International law became the solution because it’s a set of rules that provides shared solutions. The states developed a series of rules to give solutions to these problems; it’s peace of the state law that settles when people from one country have relationships with people from other countries.

International Law is Divided Into:

1. Public International Law (a/k/a Law of Nations) concerns the structure and conduct of sovereign states and intergovernmental organizations. The relationships between sovereign states are rooted in two fundamental principles, but it’s complicated because it starts long negotiations between countries:
   • Pacta sunt servanda – if two states agree on something, it should be observed;
   • Consuetudo est servanda - what has been done before should be continued; relationships are stable and anyone continues what has been done so far.
   Any modification of these principles should be done by a voluntary act by the state. Each sovereign state claims its independency and does not accept any non-voluntary interference with its domestic affairs. Art. 11 Italian Constitution “L'Italia ripudia la guerra come strumento di offesa alla libertà degli altri popoli e come mezzo di risoluzione delle controversie internazionali; consente, in condizioni di parità con gli altri Stati, alle limitazioni di sovranità necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni; promuove e favorisce le organizzazioni internazionali rivolte a tale scopo.” Internationally speaking, Italy accepts limitations to its sovereignty in order to find peace and determine a better legal environment. When issues arise between sovereign states, war is the main instrument to settle them. If a state does not respect the two principles, the other states can use war to reestablish what has been infringed.
2. The League of Nations was established in 1919, after World War I, under the Treaty of Versailles "to promote international cooperation and to achieve peace and security" and settle the disputes rather than going to war. Despite some early successes, the League of Nations was not able to prevent World War II. As of 20 April 1946, the League of Nations ceased to exist, having handed over all of its assets to the United Nations.

The sources of international law...