Riassunto esame International law, Prof. Tanzi Attila, libro consigliato A concise introduction of international law, Attila Tanzi

Institutional means for the settlement of disputes over collective interests

The bilateral nature of inter-state legal relations protecting the individual interests of states based on reciprocity, can also stem from a general customary rule, or a multilateral convention. For example, taking about the rules on the inviolability of diplomatic premises, or the freedom of navigation, every state is to comply with such obligations in respect of any other state, but its violation gives rise to a relationship of responsibility solely between the wrongdoing state and the individual state materially affected by the breach in question. The victim states can immediately identify the violation of an international legal right of theirs occurred through the infringements of the material interest protected by the legal right in question and corresponding obligation in question and invoke the responsibility of the wrongdoing state. Since the second world war, new rules have emerged that protect collective rights,

which are also susceptible to giving rise to international disputes, the settlement of which are often provided for by treaties for their identification and resolution. Each state involved is entitled to invoke the responsibility of the wrongdoer and ask for reparation for the benefit of those directly affected by the breach in question. However, there is little political interest by states not directly affected to raise the matter and the violation itself may be difficult to be identified due to the highly technical nature of the obligations.

The United Nations

The UN was created primarily to pursue the maintenance of international peace and security and to bring about by peaceful means adjustments or settlement of international disputes or situations that might lead to a breach of the peace.

Compliance review mechanisms

Compliance with certain international law may require high technological, administrative or financial capacities (ex. environmental obligations provided for by MEAs), so in case

ofconduct in violation of such obligations, the agreements in question provide for theinvolvement of compliance review mechanisms prior to the engagement in diplomaticexchanges where the international rules on state responsibility would be invoked by theinterested states. Such mechanisms are aimed primarily at providing state parties withassistance in complying with treaty obligations of a highly legal, administrative, scientific andtechnological complexity.They usually operate in conjunction with a reporting system,whereby parties are to submit periodically, every two or three years, reports about theirimplementation of and compliance with the convention in question. The mechanisms aregenerally conceived with powers to carry out procedures that are not adversarial orconfrontational in nature

CHAPTER 7

Select areas of substantive international law

International Economic Law

International investment law (IIL) represents an important development of the traditionalbranch of international law

on the treatment of aliens, complemented by the right to propriety as enshrined in the Declaration of the Right of Man and the Citizen adopted in 1789 during the French Revolution.

International economic law ensures protection to foreign investors from arbitrary, discriminatory or abusive interference by the legislative, administrative or judicial authorities of the countries in which the investment has been made and at the same time it pursues the promotion of the economic development of the host country. The applicable rules and principles found in customary law are few and of general character; they include the fair and equitable treatment principle, consisting of the obligation not to adopt discriminatory conduct against a foreign investor, the right of the foreign investor to full protection and security, both from physical and legal violence, and the prohibition of expropriation, except for the lawful expropriation.

For an investment to qualify as a "foreign investment", in

In order to be protected under IIL, it has to be a substantive investment in the host country for a significant period of time involving a commercial risk (ex. loan). The assessment of the 'foreign' character is a formal one, meaning it's dependent on the main seat of business, not the origins of the owner.

The interpretation and application of international investment agreements it's made within the context of the customary law on the law of treaties, which governs the validity and interpretation of such agreements, and of the customary law of state responsibility, which governs the assessment of the wrongfulness and the legal consequences of it.

IIL with other components of international economic law is subject to debate and political concerns.

IIL was strongly boosted by the revival of liberalism, worldwide prompted by the fall of the Berlin Wall in 1989. After the end of the Cold War, many developing countries reintroduced a free-market economy, privatizing their industrial

Structure and public utility services that had been nationalized. Through the 1990's, those countries massively entered into BITs and FTAs. This represented a form of fair legal competition to attract foreign investment, promoting the development of their economy through the establishment of a reliable legal environment. This included accepting that disputes between foreign investors and local state authorities could be brought to international arbitration directly by foreign investors, rather than before the domestic courts of the host state, or left to the unpredictability of diplomatic protection by the state of nationality of the foreign investor.

However, IIL is also criticized in some Western countries, not only by activists, but also by those governments who are sharing protectionist trends. The unilateral termination of BIT usually does not leave those who had made an investment prior to the denunciation in hand deprived of the legal protection. Such treaties contain provisions,

Called sunset clauses, that extend the operation of the treaty in question for a period ranging between 10 or 20 years since the denunciation. The criticism was that this body of law and its arbitrary application would be vitiated by a pro-investor bias.

One would assume that the economic relationship between investment-importing and investment-exporting countries would be balanced enough for states to equally realize the benefits produced by IIL for their economy by promoting foreign investment and protecting the national companies investing abroad, at the same time. However, traditionally investment-exporting countries are now also expressing concerns and criticisms over IIL and arbitration.

This change of attitude confirms the pendulum-like nature of the way which the international legal process evolves, insofar as it is subject to the expressions and contractions of the international community states, swinging between liberalism and protectionism, as much as between cooperation and conflict.

This shows a Janus-faced attitude of states in regard to international law, indeed they initially engage in the creation of new international rights and later they complain when they have to comply with the obligations corresponding to such rights. Particularly in times of economic crises, it appears that, even industrialized countries are more concerned with the risk of being sued before investment arbitration tribunals than with the benefits for their national companies abroad.

ICSID and UNCITRAL have introduced procedural adaptations that may enhance attention for public interest concerns, such as new forms of transparency or the participation in the proceedings by third parties representing public interests under the status of amici curiae. International investment tribunals have gradually developed a case law which is ever more attentive to public interest concerns. (2000 Compania del Desarrollo de Santa Elena S.A. v Republic of Costa Rica)

WTO law

In 1947, the ECOSOC adopted the GATT

(general agreement on tariffs and trade) that was meant to serve as a provisional framework for the liberalization of the world market until ITO (international trade organization) would be established.

After the cold war in 1994, the WTO (world trade organization) was set in place and it incorporated the GATT with other agreements.

When a trade dispute arises between two or more WTo members, the dispute settlement body (BDS), composed of all state parties of the organization (164 states), sets up a dispute settlement panel, and a panel's ruling may be appealed by either party before the Appellate Body.

WTO pursues the introduction of the rule of law in international trade, with special regard to administrative procedures, based on the principle of non-discrimination through the standards of national treatment of foreign products (meaning they cannot be subjected to treatment less favorable that that accorded to domestic equivalent items) and service and of the most favorite nation (items).

coming into a party to those agreements from other party cannot be treated less favorably that the like items coming from any other party to the same agreements). This to pursue public policy aims, such as sustainable development, the improvement of the standard of living and equality of payment.

The law of the sea

This body of international law addresses the legal relationships between states (rights and obligations). Initially law of the sea consisted of the recognition of the exclusive sovereignty of coastal states up to 3 nautical miles, called territorial sea, and beyond those waters there was the high sea, where the principle of the freedom of the seas applied, recognising the freedom of navigation and trade.

With the accelerated technological developments they presented two main concerns:

• in the high seas, any financially and technologically capable state could grab all the available resources, including seabed and subsoil.
• the territorial sea zone resulted too constrained

Such demands for

Change and development in the law were reflected by four exercises of codification of the law on the subject throughout the last century. A new normative approach led to a comprehensive convention on the subject, the UNCLOS of which 168 are a party (UN Montego bay convention on the law of the sea). It also provides for a permanent tribunal (ITLOS). The convention develops the zonal approach which determines the kinds of activities that are allowed in certain maritime zones:

1. The territorial sea: (12 nautical miles from the baseline) in its internal waters (ex. harbors) the coastal state may exercise its jurisdiction in the same way as on its land territory. Similar considerations apply to territorial waters, except that they must allow the right of innocent passage to ships of all states (continuous and expeditious traveling).
2. The contiguous zone: the coastal state may only exercise limited sovereignty.
3. The exclusive economic zone (EEZ): the coastal state is entitled, in exclusive

terms, to exercise “