International Law

COMPETENCE OF THE GENERAL ASSEMBLY FOR THE ADMISSION OF A

STATES TO THE UNITED NATIONS

At. 4 par. 2 was questioned. It was asked to move away from the strict literal

interpretation.

Solutions of the ICJ there is no going beyond what the UN charter provides for,

absent an amendment of the document itself; consequentially all proposals to reform

the security council have met resistance of the five permanent members.

Lecture 10/10/2022

Sui generi international entities

Lecture 17/10/2022

● Capacity to enforce their duties and rights

● independence and effectiveness

● No recognition is required

● Treaty making: states, IOs, Sui Generi entities

Are individuals subject to Internal Law?

There is no correct answer.

One of the factors to take into account is effectiveness: if we take the case of

insurgents they are considered to be relevant only insofar that they control a

consistent part of territory, otherwise they are considered ordinary criminals.

Another element is the involvement of individuals into international conventions

treaties: still in the case, the ultimate actors of treaties are states and there does not

exist a supreme international court or entity that can enforce the provisions under

internal treaties.

The answer depends on the notion of subjectiveness that we engage in. For

example, not only states are subjects of IL, but also IOs and SG entities even if they

are not considered states. To this end, the answer that results is yes, since also

individuals are subjected to rights and duties of the International legal order.

But if we consider the internal legal personhood, including for example the immunity

under the international jurisdiction, the answer will be no.

Under traditional international legal order, before WWII, individuals were protected

just as long as they were foreign citizens. The ultimate beneficiary of this treatment is

the home state, since it represents a way to maintain internal legal order. Indeed,

individuals are seen as “pertinenze” of a state, meaning that they are an element

strictly attached to the foreign state. In this way, however, a paradox arose: domestic

citizens did not enjoy the same treatment, which will be protected by the home

state's impunity. Individuals were basically an homage to a foreign state.

The idea here is diplomatic protection, which is the possibility of a foreign state to

bring a claim for a mistreatment to a hom state abroad.

"Exhaustion of domestic remedies” is a procedural requirement, according to which

an individual has the right to be judged by his own state law.

The problem is that the extent to which the home state must protect its citizen is

completely discretionary: is the protection of an individual worth jeopardizing the

relationship with another state? (Giulio Regeni)

An essential revolution occurred after WWII, when the ECHR was adopted.

On the other hand, the UN Convention of Human Rights 1948 is just a

recommendation to states.

Lecture 19/10/2022

The sources of international legal order

A legal order is a coexisting set of binding provisions.

The Statute of the ICJ represents the set of rules and regulations managing the

functioning of the ICJ: Article 38 1945 specifies the applicable rule whenever a legal

dispute arises. It is not the ultimate reference for the international legal order, it is just

the only option to refer to, due to the absence of an authoritative source.

Paragraph 1 of the Article includes actions of the sources of law and complementary

images, to look at whenever there is a gap in asserting the discipline to solve a

certain matter. It refers to treaties, customary laws, and international conventions

and general principles. There is a part mentioning the term “civilized nations”: it

considers the most fine old legal traditions. This is because differently from treaties,

customary law and international conventions, the general principles come from

domestic legal orders (separation of powers, the concept of good faith).

The Statute of the ICJ is the mere copy of the one established by the permanent

court of International Courts However, throughout time after 1919 the number of

International Organizations started to rise drastically.

Within the whole set of legal acts adopted by international actors which are seen as

recommendations, it is included in the category of the Provisions of the Security

Council, which on the other hand is entitled to put in force binding resolutions.

Another IO which is fully fledged allowed to manage such provisions is the European

Union.

Opposite to the domestic legal order, in the international legal order there is no

pyramid, no hierarchical rank, of legal sources.All though there is no formal

hierarchy, Italian scholars above all came up with an ideal order of legal order,

including 3 degrees of sources. In terms of legitimacy, the supreme one in the list will

be the legitimate shayari of the latters: without the primary source, the other two

won’t exist.

1. Customary law: it embodies the ultimate tradition of the international legal

order. This distinctive feature implicates two different paths. first of all we take

into consideration two examples:

● Whenever a former head of state visits another one, the latter must

provide him with a red carpet and flowers at the airport.

Features:

- not written

- flexible

- informal: no established procedure for the adoètion of a

customary law

- general fully fledged source of international law: binding the

whole international community

- Constituted of two main elements:

1) practice: need for states to perform a certain conduct

2) opinio juris: the subjective element, according to which

states perform a conduct because they feel it is

necessary to do so, they believe they are expected to

2. Conventions and treaties: the first step for states to enter a treaty is the norm

of respecting such conventions, which Pacta Sunt Servanda, which is the

ultimate principle of customary law, so of the primary degree of international

legal order sources.

3. Binding Acts of IOs: for example, there would not be any UN Security Council

resolutions without the establishment of the UN Charter, which is a secondary

source.

Lecture 24/10/2022

ICG Procedure for Customary Law

State immunity from jurisdiction: jurisdiction is a simple synonym for the word

“authority”. It is made up of 3 elements:

- jurisdiction to prescribe

- jurisdiction to enforce

- jurisdiction to adjudicate

These 3 elements summarize the 3 forms of separated powers: legislative, executive

and judiciary.

To be immune means to be exempted from the reach of other states.

Putting the two notions together, we are referring to the capability of not being

subjected to other states’ competencies.

States can be sued in domestic precedence all the time, by individuals, however we

must draw a perimeter for this specific case study.

State immunity, when it was engaged for the first time, it was not subjected to any

exception.

However, throughout time, the scope of the rule became more circumscribed and it

was supplanted by another customary law: there was a shift from absolute to relative

immunity, put in force by Belgium and Italian judges at the end of 19th century. They

established that it only makes sense to envision state immunity with reference to

those acts that are public, sovereign in their nature, also called “Acta juri imperi”.

Some examples of the capability of judges to adjudicate their own country’s law,

could be military actions in a foreign country or another state enacting legislation.

This is because we are not talking about sovereign conducts.

“Acta jure gestioni” include all those functions that can be enacted by any individual.

Together with the informal nature of customary law, another important feature is the

so-called “time facta”, meaning that customary law does not emerge overnight.

However, the less the time facta is required, the more widespread and admissible is

the conduct.

Until recent years, diversity did not matter since customary law was a purely western

function: this was because other states were not included in the international arena

of the 60-70s.

Customary law is general meaning that it affects each state, even though it did not

concur in the formation of such rule.

“Persistent objector” has been an attempt of some states to be exempted by

customary law, but this is a doctrine that is not recognized by contemporary

international law.

Lecture 7/11/2022

Difference between treaties and customary laws

Treaties:

● Written

● Formal

● Binding nature for the ones that adopt them; they are considered particular in

the sense that they do not affect all the subjects of international law, as the

case of customary law (general)

● The rational: Charter I UN “Prohibition of the use of armed forces”: states see

conventional obligations as a source of common stability because there is an

expectations from the other states

● The treaty making process: precise steps, according to the Vienna

Convention of REule Treaty 1869, adopted in 1980, which codified already

existing customary principles. There will be some provisions that can be

derogated. The steps follow the Solemn Procedure:

1. Negotiation: setting the actual legislative regime governing a particular

international issue. Considering the example of fish stocks, a first step

would be setting annual quotas to be not overcome; secondly, the

consequence of breaching those obligations would be for instance

criminal claims. So, it could be established for the use of mercury in the

sea and making states put criminal implications in case of the

overcoming of such provision. It could also happen that more

industrialized states buy quotas from the less developed ones. We

identify the actors of this process as “plenipotentiaries”.

2. Signature: several different effects, First of all, it certifies that the text

was the one on which parties agreed upon. Then, plenipotentiary

manifest their states’ availability to potentially become a party of such a

treaty: this refers to the availability of the state to bring the question

forward. Article 18 UN Charter is the only case in which the mere

signature of a treaty implicates the actual obligation of not breaching

the essential principles of such a treaty.

3. Ratification: the moment in which a state chooses to be engaged in the

treaty. Often, it is the constitution of each country which establishes

which body or entity has the role of ratifying the treaty: so, it is a

domestic matter.

4. Exchange or deposit of ratification instances: when the minimum

number of ratification instruments is reached, the treaty is fully applied

5. Entering into force

There is a simplified procedure which if followed brings states to be bound as

soon as the treaty is signed.