International Law

International and European Law

Introduction

International Law is considered to be a craft, in the sense that we use it to analyze the world around us and to answer our questions, even though we see in recognizing human rights the main goal of it. The fundamental element of International Law is protecting sovereign equality of every state in the international background.

A case study, helping us to naturalize this concept, is the conflict that arose between the Talibans and the US concerning the opium business. In this case, 3 important questions have to be addressed:

• Whether Afghanistan is bound to any international treaty
• Whether it has ratified such treaty before introducing it in its legal domestic system
• Whether Afghanistan has violated any of the rules dictated by such treaty

If the answer to all 3 is positive, then Afghanistan is legally accountable as a state. It was decided that the Talibans had to be considered as a bunch of random and separated people, not as governmental bodies and being so any wrongful conduct could not engage any international law intervention.

Another important case refers to the situation after WWII: the Nazi Army had forced many people to labor. In this case, however, the conduct of the Germans has been considered as a breach of international humanitarian laws and, being seen as an official state, this situation triggers the concept of state responsibility.

Another important element of international law is the sovereign immunity from a foreign state, meaning that each state is legally accountable only to its own country’s court. However, throughout time, something has changed due to the rising interconnection between states, above all on an economic basis. In the case for example of a missing payment for an ambassador or a rent for an international entity, any legal person is entitled to sue such a state to the international court.

Some Basic Notions

An important distinction:

• Civil law: the main source of provision is represented by parliamentary statutes and judges have only to apply and NOT INTERPRET the law (+separation of powers); judiciary has its roots in the Roman law
• Common law: (English-speaking countries) the role of the judiciary is more significant, because it can lay down the discipline and judges comply with the precedent

An order is a set of legal rules in the fact that it has been established by the authorities competent in the rule-making functions.

International legal order (set of rules) is qualitatively different from the domestic legal order.

Domestic order: individuals, who elect representatives

International order: states; the source of binding power can be found in the international charters and constitutive treaties. States are not only the subjects of international legal order, but they’re the masters; within domestic legal orders the addressees are passive, while in the international one states are the ultimate masters, because there’s no way to compel a state - ADDRESSES BUT AT THE SAME TIME CREATORS of legal order.

Definition of State

3 functions of the state: Executive (the implementation of existing provisions by the government ≠ coercive orders), judiciary (international order: no way to compel a state), legislative.

In the international legal order, there’s no executive power or ad hoc structure; Retaliation is the rule. The subjects of domestic legal order are passive (object); while states concur in the legislative functions and are the ultimate managers of the executive functions and they can enter in the judiciary proceedings.

Why are international legal orders so peculiar? Because of sovereignty: it is the main characteristic of states = sovereign entities (all countries). Territory, population, government that needs to be independent and effective (≠ Palestine hasn’t an effective government); recognition is not a definitive feature for statehood.

Origins and Outcomes of the Creation of International Law

Conventionally international law was born during the peace of Westphalia in 1648, when its main gestures had been settled down.

• Natural territory, no artificially one with precise borders even if the requirement of a border considers some flexibility
• Population is the group of individuals, either citizens or not that live within the territory of a state. Different scope between population and minorities (ex. Turkish and Kurdish)
• Government: government controlling all the territory, but some could be considered under the control of other authorities; countries have governments just for show, without a real foreign policy.

This statehood has an entity exercising influence over a population and within specific territories. It was a matter of fact; there’s no authority or a test to pass.

• Holy see sui generis subject – it’s not counted as a state, but it has peculiar features such as state’s prerogative
• Transnistria not recognized, nonetheless it would be a puppet state, without a central governmental apparatus
• Catalunya
• Taiwan
• Kosovo
• Hong Kong
• Kurdistan

Effective ≠ independent. Having a government doesn’t automatically make it a state, because that government needs to be effective on the national territory and independence and effectiveness should coexist at the same time. For example there’s a lack of effectiveness in the exile states.

The requirement of independence is trickier; INDEPENDENCE, UNLIKE EFFECTIVENESS IS A FORMAL REQUIREMENT, which is represented by having one constitution to be considered independent, represented by a self-sufficient charter that represents the ultimate source of power.

Why Italy and France check that requirement, while California or Delaware, for example, doesn’t? Territorial articulations are not independent states from an international law point of view, because they lack the requirement of independence; Those territories are under the national constitution. But, when a degree of political influence on the part of foreign authority is severe and annihilates the autonomy of a state, in that case only the independence is indeed not to be complied with.

Recognition Under International Law

Recognition doesn’t occur in statehood. Recognition is a unilateral act performed by states and discretionary framed - no sanction or obligation to recognize, nonetheless there’s a very bottom line being the recognition of situations that would form an open violation of some principles of international law.

Covenant of league of nations and the Kellogg pact. UN charter art. 2: There can be no recognition of which situation is created in violation of this article. States are the paramount entities in international law, however throughout time also International Organizations acquired a great importance: for example the UN, NATO, the EU and the WHO.

As already specified, States are entities recognized in their own nature, their existence is independent from any other factor: this aspect brings to the main difference between states and international institutions which can be summarized in the word “constitutive treaty”. Usually states take part in any sort of international agreement in order to regulate and solve some common issues, such as environmental pollution or agriculture guidelines. However, the final result for states entering into international treaties is formally creating a whole institutional framework made up by specific organs governing certain issues, not just an ordinary cooperation.

The boundaries for states’ power and duties of any international organization are subscribed in the constitutive treaty and by overcoming those limits states will encounter some consequences. A general rule is STATES WILL + CONSTITUTIVE TREATY = legal order of its own it’s different from that of state and with further specific features that qualifies.

Furthermore, international organizations, all through creating a separated legal order, are not in the position of adopting binding legal instruments. In addition, it is important to distinguish between the domestic and the international personalities of those institutions. Several IOs have the legal personality of domestic legal orders such as FAO (under the Italian legal order).

A fundamental case to establish whether an IO has a legal or an international personality is REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS, 1949. In that situation, an agent of the UN had been injured in Palestine, hence the US was asking for reparation. The main issue was: does the US have the rights to call for such a claim? It is all a matter of legal personality whose recognition depends on some main elements. Firstly the legal personality is a concept which goes together with statehood. Moreover, other 2 elements are required: independence is a requirement and it’s the autonomy of IO pursued by documents, regardless of the will of its member states, and secondly an IO in order to be a subject needs to be effective in enforcing its agenda. The case ended with the ICG recognizing the international legal personality of the UN and it applied that concept to all IOs.

How Does the UN Work?

Art. 1 of the UN charter provides the ends of this organization:

• Security in order to prevent from whatever have just happened towards an international peaceful security
• Develop friendly relations based on the principle of equal rights and self-determination
• Achieve cooperation in solving international problems
• Center for harmonizing the actions of nations

This organization was created in 1945 after WWII. Originally members were only 51, after membership grew, there have been 193 states (latest South Sudan).

Structure

Main organs:

• Big body where every member state is represented: UN general assembly
• Restricted directory: UN security council