Riassunto esame International law, Prof. Tanzi Attila, libro consigliato A Concise Introduction to International Law, Tanzi

Alessandra Trapani Calonaci: a concise introduction to international law

Attila Tanzi

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1. What is international law

Regulating the relations between states and constraining their external sovereignty

International law can be public or private. International conventions are promoted to international law. International law is a set of rules that uniform domestic rules of private international law.

Public international law regulates the relationships between states. It is different though from foreign laws, that is a subject that pertains to comparative law and can be public or private.

The inner-state nature of international law can be seen through the diplomatic settings. On the other hand, the international character can be seen through the common scope of application of most rules of international law, for example with the rule that bans the use of force and aggression.

Private international law, better known as conflict of laws, is the domestic law and the body of these laws are to be found in the national legal system. Also there is the need to guide the domestic judge in deciding if it has jurisdiction and in case, which laws are to be applied. Each country provides for connecting factors like citizenship, in order for the domestic judge to choose the applicable legal order among those connected to a given case.

This can lead to diplomatic and transboundary relations, for example the one that regulates the external sovereignty of states. However rules are applied or misapplied within the domestic legal orders.

Constraining the exercise of the international sovereignty of states

In some cases, international laws provide constrains over the internal sovereignty. Also, rules on the treatment of foreign states have higher standards. For example, foreign heads of state and of governments, foreign minister and diplomatic immunities.

For example, the international trade law is made up of international rules according to which states cannot treat foreign individuals and companies below certain standards. International obligations on tariffs and non-tariff barriers and requires domestic legislative and administrative regulatory action. When such legislative and/or administrative action is in contrast with international legal standards, the private beneficiaries can ask for jurisdictional redress.

Why do states undertake international obligations?

The duty side of the international rules creates the legal obligations as a consequence and they also produce a mirror of the rights. So, states produce international rules providing for self-binding limits in exchange of an advantage. This is to be considered a bilateral obligation based on reciprocity, quid pro quo. If we want to name an example, when certain international standards are to be respected towards foreigners in exchange for the respect of the conditions stated. Another example could be the one of the pacts not to use military force in exchange of respect towards the same thing.

The Rio Grande Agreement: this dispute involves Mexico and the US over the use of the shared waters in 1895. This dispute was based on the interpretations of the concept of state sovereignty, by which, the waters belong to the state and hence are to be conducted under the sovereignty of the state. In few words the states claimed that the water belonged to them and that they could decide as they wanted, like they were their property, over the water.

Upstream countries did not worry at all, absolute territorial sovereignty theory approach sustained by the attorney-general Judson Harmon, about the downstream countries that claimed unaffected waters, absolute territorial integrity theory.

Judge Jiménez de Aréchaga claims that these theories operate at the expenses of the other states and this brings states to go against each other instead of coordinating the use of the basin. Eventually, they managed to negotiate on how to best allocate to each other the quantity of water flowing. This dispute ended in 1906 with the Convention concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, recognizing the rights of both parties.

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Why do states breach international law?

International rules are mostly silently complied. Whilst adopting treaties the political and administrative apparatus of states concentrates on creating rights and then they concentrate on creating obligation that comes from the same rules. This contra poses with the phenomenon whereby states infringe the obligation of their own rules. The increase of the number of the subjects regulated by the international law, can bring to the political and administrative dichotomy. So, it is required to have ministries that involve themselves with international affairs.

Can we speak of a constitution of the international society of states?

George Scelle states that “ubi societas, ibi ius” (= where there is society, there is law) that comes with the assumption that “ubi ius, ibi constitution” (= where there is law, there is a constitution). The UN Charter can be said to have an important component of the constitutional principles of contemporary international law. However, the fundamental rights are non-representative of the international law because the founding principles of contemporary international law are in an unwritten form.

International law is to be consider a social fact, so, looking for its constitution means to be looking for its basic constituent features that are the rules and principles. It appears that the basic principles of the coexistence, the Grundnorm, are that of the sovereign equality of states. This shows the low level of institutionalisation.

It is recognized the lack of a centralized power as a matter of law-making, adjudication and enforcement. The basic principle of equality of states, brings to the three main functions of the international law:

• The way in which states work on the rules by consensus, together and through agreements or treaties, pacts must be kept.
• The consensual solving of disputes.
• Self-help in the law-enforcement function.

Sovereignty applies to the structural dimension of the international society of states, but we can also say that the international law principle has an impact also at the level of substantive law. A basic element of the principle of the formal sovereign equality of states, is the absolute political independence. There are some principles that counterpoises, for example the principle of non-intervention in the internal affairs of other states the principle of sovereign independence.

After a period of anarchy during the barbarian invasions, by the 17th century, no one would do anything to inherit the Roman Empire and his hegemonic organization. With the Peace of Westphalia of 1648, a horizontal legal setting emerged that brought to a formal equality. Such equality was of a formal nature because there were weaker states anyway. The principle of equality was only applied to Christian states paving the way for the colonization of the non-Christian states.

The growth of significant material inequalities made possible to reverse revolutionary attempts system from a horizontal to a hegemonic one. Some attempts were the one of the Nazism, the Napoleonic project, the Bolshevik internationalism. The aim was the one to demolish the principle of sovereign equality disrespecting the principle of non-intervention, political independence and territorial integrity of states.

There is an evolution among states that is proceeded from a limitation of the sovereignty in the exercise of the external sovereignty through the sources, treaties and customs. This evolution had two aspects. On one hand the growth of the organisational side and on the other hand we have the development of the rights and duties. On the organisational side, international institutions developed remaining intergovernmental. They do not involve a renunciation of the sovereignty: institutions members still exercise external sovereignty.

The acts of the international institutions not legally binding, and if they are, their enforcement depends on the domestic sovereignty. Members can exercise their foreign sovereignty to the full extent of quitting the organization. Even when members introduce some kind of limitation on their sovereignty, they are not giving up to it.

In the 20th century there were constitutional changes from the law of coexistence into the one of cooperation, with of course bilateral relations based on erga omnes obligations such as the one on the use of force and on human rights. This changes also made possible a constitutional change. In fact, if a treaty is in contrast with those obligation we were talking about, it is to be considered null. There are some rules that permit no derogation, this are the peremptory norms or rules of cogens.

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This internationalisation occurred because of the aim of defeating the totalitarian regimes of the Soviet bloc, the memory of the humanitarian horrors of WWII, the overall economic expansion. In that period, in the ’90s, there were the end of the Cold War, the fall of the Soviet Union and the Communist regime in 1989, the free-market economy worldwide, the full liberalisation of international trade and the development of environmental protection.

This climax was broken with the failure of the peace-keeping operations by the UN, example: Somalia, the disagreements between NATO and Russia over Yugoslavia, the NATO bombing of Serbia in 1999, the bombing of Iraq by US and UK in 2003, the crises since 2008 to date, Islamic terrorism, Syrian and Libyan crises and the growing feeling of nationalism, some examples are Brexit and the Swiss referendum to put Swiss Constitution above international law. All this was the basis of the sovereigntist movements. We can therefore say that there is an important balance between internationalism and nationalism, between liberalism and protectionism.

Differences and similarities between international law and domestic law

The main difference is the lack of a central and institutional exercise, law-making, law-assessment and law-enforcement. If we want to discuss about the lack of a legislator, is very complex since all states need to participate in the making of a custom, or a treaty. At the same time another complexity is that if every state participates, the lawmakers coincide with the recipients of the obligations. On the other hand, with the problem of enforcement, one has to consider the fact that many important rules in domestic law are unenforced.

Another difference is the absence of compulsory international adjudication. About this, we can say that international adjudication is always voluntary, or arbitral, but there are no international centralised police that enforces international laws or judgments, unless you give this function to an international body through a treaty before the born of the problem. An example could be the one of the UN Security Council. There is to say that it is very unlikely to have an enforcement decision against a permanent state of the security council since they have the right of veto.

The absence of an international adjudication, is to be considered a result of the complexity, costly, slow and unpredictable litigation in the domestic legal system, but despite this, the degree of effectiveness of the domestic legal orders are not much superior to the international one.

Predictability: some people believe that the absence of those things before said, determine the indeterminacy of international rules, since many international principles, treaties and customary laws are unwritten. The latter is not more indeterminate in international law than in domestic law. In fact, as Judge Crawford says, indeterminacy is to be consider part of all legal systems, some more, some less. The American philosopher Benjamin Cardozo says that we should not be disappointed when we expect the absolute from premises that are relative. Of course, the aim of law is to find the highest possible degree of predictability, but even if the goal of a contract is to give security respect to a handshake, there is no absolute guarantee.

Concluding remarks

International law, like any other legal system, is an expression of social and political process. Louis Henkin says that the health of law depends on the health of society. Sir Robert Jennings gives a definition of international law. According to him, in a divided society with many differences the only vocabulary we have in common is the public international law. In fact, after WWII, international law was the common language between the different societies. The UN General Assembly promoted the New International Economic Order as a resolution.

In sum, during the Cold War, the preservation of the basic international rules was perceived to be in the interests of all states in order to have a coexistence and maybe a cooperation. When the two superpowers realized that no one could win, a balance was created crystalizing everything. The former colonial powers used international law’s treaties to extend as much as possible their privileges. On the other hand, the new countries emerged from the decolonisation, used international law to change or preserve the rules that they would find useful to change or preserve.

While on public affairs there is a unique language with many unilateral visions, on the transnational business level there is a tendency to rely on homogeneous parameters.

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2. Who makes international law and its recipients

The subjects and actors of international law and the issue of international legal personality

On one hand, the subjects of law, those individuals or entities to which the legal order applies, are the receivers of its legal rules. On the other hand, they are individualized in the capacity of creating and/or transfer rights, duties and powers. This can be made through agreements or customary laws. They indeed have to also come forward for the violation of their rights and the breaches of their obligations.

Generally, the subjects of law, can sue and be sued, are natural persons, the capacity given with birth, and juristic persons, non-living entities that have legal personality. If we talk about international legal personality, its receivers and therefore subjects of law, and so the bearers of duties and rights capacity that goes under the principle of effectiveness, are the states and the intergovernmental organisations, their subjects also enjoy domestic legal personality. There is also to specify that in domestic law, the juristic personality is objectively attributed to everyone, while in international law doesn’t.

International customary law and treaty law, provide international legal standard. If such standard is infringed an international legal dispute arises.

States and statehood

States are independent, they have the power to prescribe, adjudicate and enforce, but a condition for their independence is also the exercise of the external sovereignty, meaning that the state decide its own foreign policy. Even if we clarified that the state is independent, both internally and internationally, the exercise of both jurisdictions can be disciplined by international customary treaty law.

We said that states are the subjects of international law. The three requirements to be a subject of international law, there is no registry recording incorporation and certifying its validity for all once one has those requirements, it becomes a subject of international law, and therefore having a legal personality, coincide with the conditions for an independent statehood:

• Independent and stable government.
• A territory with settled borders.
• A permanent population in a territory with a government.

A new state is not created from nothing, it is a result of transformations and processes. This transformation can be named dismemberment, secession and annexation.

Recognition

Some considered being recognised as a state by pre-existing states, as a further requirement. This is the so-called constitutive recognition doctrine. However, the three requirements in practice are sufficient. In fact, this method is to be considered merely declaratory of the recognition of the new state, declaratory recognition doctrine.

For example, the US recognised the people’s Republic of China only in 1979, even if the Republic had the three requirements since 1949 and was accepted in the UN since 1971. The admission to the UN can be an indicator of the statehood, but it is not a formal recognition of that. Such admission is relevant only for the evaluation of the recognition given by the UN members that voted in favour for the admission, because the vote is not always unanimous so there are some in favour and some against.

The conditions to be part of the UN are different from the requirements for the statehood. The UN Charter states that the applicant should prove to be peace-loving and capable to respect the obligations. Newly formed state is likely to lose the capacity of meeting the three requirements without the political recognition by other states.

Arbitration Tribunal in Deutsche Continental Gas Gesellschaft vs Polish State (1922): the recognition of the state is not constitutive, but merely declaratory. The state exists by itself.

Elements of state practice after the end of the Cold War concerning the dismemberment of the Former Yugoslavia and the Soviet Union can suggest the question “Are the requirements additional to the three requirements part of the customary international law?”.

The 1991 Declaration by the Ministers for Foreign Affairs of the EC, now EU, announced the readiness of the European Community Member states to recognize new states, if they are not the result of aggression, if they do not use force, have territorial integrity, human rights, protection of national minorities and constituted on a democratic basis. The Badinter Commission, named after the French lawyer that presided it, was the recognition cases. Therefore the declaration is a set of political guidelines for th