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

CHAPTER 1

Regulating the relations between states and constraining their external sovereignty and the

internal sovereignty of states

International law consists of a set of rules made by states in order to regulate the legal

relations between them: these rules belong to one legal order shared by all members of

the international community of states (states may differ in the interpretation and

application of these given rules).

International law shouldn’t be confused with private international law, that is to be found in

each national legal system, but through its body of rules on conflict of laws, it provides for

connecting factors in order for the domestic judge to choose the applicable legal order

among those connected to a given case, including its national law.

The prevailing inter-state nature of international law is apparent from the diplomatic

setting in which inter-state agreements are negotiated and entered into state organs in

charge of foreign relations. Most rules of international law are applied, misapplied, or

infringed upon, within the domestic legal orders of the recipient states, hence, by state

officials in charge of domestic affairs, either legislative, executive or judicial.

Many international rules provide, through their obligations, constraints over the internal

sovereignty of the recipient states.

Most legal obligations stemming from international environmental rules require conduct to be

taken by the state officials and state agencies in charge of the performance of elements of

international sovereignty. International trade law is made up of international obligations on

tariffs and non/tariffs barriers that require domestic legislative and administrative regulatory

action on the importation and treatment of foreign goods and services that even when

appropriately adopted, further requires application by custom, or other officers.

When such legislative and\or administrative action is deemed to be in contrast with

international legal standards by the private beneficiaries of the rules in question the latter

may resort to the local domestic judiciary asking for redress. When redress is accorded to

the claimant by domestic court in such a case the domestic judiciary would be mending state

conduct inconsistent with an international obligation by other state organs, eventually

bringing the state in compliance with such obligation before an internationally wrongful act is

1

completed.

Why do states undertake international obligations?

States produce international rules providing for self-constraints in exchange for a

corresponding advantage deriving from reciprocity: bilateral obligations, rights correspond

to international obligations (quid pro quo).

The example of the rio grande agreement:

Often riparian states get involved with disputes with their neighbors over transboundary

shared waters, in particular over those portions of transboundary waters that lie on the

national territory. This situation often led to an abuse of power on behalf of the given state

that revindicated exclusive territorial sovereignty.

Upstream countries claimed absolute freedom to use transboundary waters regardless of

downstream impact according to the so-called absolute territorial sovereignty theory.

1 It’s an obligation of the domestic judiciary to mend a state conduct that is inconsistent with an

international obligation in order to not violate a international right 1

In 1895, attorney-general Judson Harmon expressed the dispute between Mexico and the

US over the use of the Rio grande. Downstream countries claimed the right to receive

unaffected waters from upper countries following the absolute territorial integrity theory.

This controversy was particularly difficult to solve because of the unclear state of

international water law until the early 1900s. The former President of the ICJ, Judge Jimenez

de Arechaga stated that the two countries should have focused more on seeking an integral

and co-ordinated utilization of the whole basin, rather than insisting on their claims, which

would have in the long run resulted in a loss for both parties.

After 11 years of negotiations, in 1906 it was concluded the convention concerning the

equitable distribution of the waters of the Rio Grande for irrigation purposes; this treaty

recognized the rights of both parties to use the waters of the Rio grande.

As we can see international law is strictly characterized by states accepting constraints over

their sovereignty in exchange for comparable benefits.

Why do states breach international law?

Is the “duty side”, rather than the rights aspect, of international rules that is usually

emphasized, while it is the rights side that lies behind the motives why states enter into

international rules. Whilst negotiating and adopting treaties, the political and administrative

apparatus of states is mostly geared towards the creation of rights, while at later stage,

different state organs are involved in the implementation of an compliance with the

obligations stemming from the same rules. This accounts for the apparently contradictory

phenomenon whereby states sometimes find themselves infringing the obligations stemming

from rules of their own making, or even rejecting the same rule altogether. The risk of this

form of political and administrative dichotomy is ever increasing with the widening of the

subject matters falling under international regulation, which were once exclusively of

domestic relevance. This has the implication of requiring ministries to increasingly

involve themselves with international affairs concerns and necessitates a level of

administrative coordination within states that is often difficult to attain.

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

The UN Charter can rightly be said to have been an important component of the

constitutional principles of contemporary international law, but being international law strictly

related to a social fact, looking for its constitution means looking for its basic constituent

features. In any legal system, the constitutional rules and principles are the ones mostly

connected with the underlying social and political process that produces them, keeping in

mind the given society and time of history. The basic principle underlying the structure of

the international society is that of the sovereign equality of states. The grundnorm of

international law implies its low level of institutionalization. It accounts for the lack of

centralized power with regard to lawmaking, adjudication and enforcement. The principle of

sovereign equality has determined the three functions of international law:

1. the consensual and participatory mode of the making of international rules,

respectively, through agreements and custom under the constitutional rules

consuetudo est servanda and pacta sunt servanda.

2. the consensual nature of dispute settlement, with a prevailing relevance of

self-assessment of legality.

3. self-help in the ultimate law-enforcement function.

This shows how sovereignty as the constitutional principle of international law applies to the

structural dimension of the international society of states, but at the same time it 2

impacts the substantive law, for example by enforcing the political independence of each

sovereign state from any other state. The making of international law rules by states is an

example of how states freely accept constraints on their sovereignty in exchange for the

advantages occurring through the corresponding self-limitations adopted by other states (the

sovereign independence is protected by the principle of non-intervention in the internal

affairs of the states).

After the Peace of Westphalia in 1648 it emerged a horizontal legal setting that produced a

new world order based on formal equality, mutual independence and competitive freedom

between sovereign states (the principle of sovereign equality applied only for christian

states, legitimizing colonization).

The constitutional principle in question has allowed significant material inequalities and also

allowed for revolutionary attempts to reverse the international constitutional system form its

horizontal setting into an hegemonic one aiming to abolish the principle of sovereign

equality through the breach of the corollary principles of non-intervention, political

independence and territorial integrity of states (ex. nazism). Against this attempt,

international law set limitations of the state of sovereignty, both internal and external. This

process of self-reduction has promoted the growth of the organizational side of the

international community through the development of international institutions and has

involved major development in the field of the substantive right and duties of states and of

non-state actors.

In regards of the international institutions we can say they have developed throughout the

second half of the 20th century, remaining prevailing intergovernmental in their essence;

indeed they do not involve full transfers, hence waiver, of state sovereignty on the part of

their members:

a. in international institutions, being of an intergovernmental nature, member states still

exercise elements of foreign policy (ex. external sovereignty)

b. usually, the typical acts of international institutions are per se not legally binding, and

even if binding their enforcement depends on the exercise of domestic sovereignty

by the member states

c. even when the statute of a given international organization does not provide

expressly denunciation or recess, it is generally agreeable that member states may

well exercise their foreign sovereignty to the full extent of quitting the organization

d. Accordingly, even when member states introduce some kind of limitation on their

sovereignty in relation to their membership in intergovernmental organizations, they

are far from relinquishing their sovereignty.

On the substantive law side, the second half of the 20th century has produced gradual

constitutional changes and a shift in the normative quality of their material obligations from

the law of coexistence into one of cooperation, providing legal protection to indivisible

general interests of the international community of states as a whole (erga omne obligations,

meaning obligations owed to all the states of the international community).

These developments have been so intense as to effect the sovereign law-making power

through constitutional change, a treaty in contrast with suh solidarity obligations is to be

considered null.

These are called peremptory norms, or rules of jus cogens indicating an international rule

which is not derogable. Such an expansive trend towards the internationalization of national

policies occurred during the cold war, aiming to defeat the totalitarian regimes of the soviet

bloc. The fight for human rights in those regimes, as well as against racial discrimination in

the US, combined with the need to comply with the international rules on the prohibition on 3

the use of force against territorial integrity. After the Second World War there was a spread

of the sense of the rule of law and the end of the cold war resulted in a climax of the

internationalization trend. In the ‘90 was reached a huge fulfillment by the promotion of the

full liberalization of international trade and foreign direct investments, the development of

environmental protection and strategic-military harmony between the 5 permanent members

of the United Nations Security Council (ex. unanimous reaction of the sc against iraq

invasion of kuwait in 1990); this brief time of stability was soon broken, one may recall the

failure of peace-keeping in Somalia or the Bush’s and UK’s bombing of Iraq in 2003.

In particular the terrorism crisis led to a lack of confidence in international cooperation and

rule of law, resulting in a revival of nationalism. This is the basis of the new sovereignty

movements that particularly rose in the US with the Trump presidency, the UK brexit and the

swiss referendum on the proposal to put the swiss constitution above international law. From

a public international law perspective, states always oscillate between internationalism and

nationalism, liberalism and protectionism.

Differences and similarities between international law and domestic law

The biggest differences between international law and domestic law are to be found in the

main three function of a legal system:

- law-making: international law lacks a parliamentary authority that legislates and also

lacks an international kind of compulsory adjudication (ex. there is not an accused

bound by a judicial proceeding irrespective of his voluntary recognition of the

jurisdiction of the judges in question). Indeed international adjudication over

inter-state disputes is always of a voluntary nature (including by permanent

adjudicative bodies such as the international court of justice)

- law-assessment: Is to be said that regarding the degree of effectiveness of the

domestic legal orders is not superior to that of international law.

- law-enforcement: There is no international centralized police that enforces

international law over states, unless this function is entrusted by the states

themselves (ex. the united nations security council, entrusted with enforcement

decisions by the states parties to the un charter, constituent treaty of the un).

Institutional enforcement functions can be found to be exercised in a decentralized

way by Conference of the parties, meeting of the parties and multilateral

environmental agreement.

Predictability

One of the most common arguments against international law is its supposed indeterminacy

due to its unwritten nature (even for treaty law even if written), but as judge Crawford said

“all legal systems are indeterminate”. Certainty and predictability are not constituent

elements of a legal system, the aim of la is to confer the highest possible degree of

predictability.

Concluding remarks

International law, like any other legal system, is the expression of the social and political

process from which it stems, so it is to be considered as a legal process subject to the

expansions and contractions with respect to the rule of law within itself and within

nation-states.

After second world war, international law has been a common language for the interaction

between the different components of the international society and it has progressively 4

changed, aiming to create strategic arms limitation treaties and customary rules of non

intervention and prohibition on the use of force in order to ensure peaceful coexistence and

cooperations between states.

On the public affairs level the vision and practice of international law as a unique language is

splitting up into many different unilateral visions, while on the transitional business level

there is a bigger focus on creating homogeneous legal parameters and international

mechanisms of alternative dispute resolution.

CHAPTER 2

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

Any given legal order provides for the rules designating its own legal subjects, which are the

addresses of its legal rules and rights. In international law, the subjects of law are recognised

by the law as having the legal capacity to create transfer rights, duties and powers. Legal

subjects are by definition entitled to invoke the responsibility of other subjects for violations

of their rights and incur international responsibility for breaches of their obligations.

In domestic legal orders, legal subjects are natural persons (individuals, who acquire legal

personality under the law of any given state at birth) and juristic persons (corporations or

cooperatives, that attain legal personality through incorporation under the laws of a given

country); a legal subject can sue and be sued.

In international law sovereign states are its traditional legal subjects, followed by

intergovernmental organizations, there is a high degree of relativism in the attribution of

juristic personality. International legal subjects also enjoy domestic legal personality under

the national jurisdictions in which they operate.

However customary law and treaty law provide international legal standards, which mostly

consist of jurisdictional immunities and tax privileges, and if those are infringed upon by the

local authorities of host states, even if those standards are incorporated into domestic law,

an international legal dispute arises between the intergovernmental organization and the

host state.

State and statehood

States are typical subjects and constituent pillars of international law and they are bearers of

rights and duties under international law. States are social aggregates capable of

independently exercising their threefold internal sovereignty:

- their jurisdiction to prescribe

- to adjudicate

- to enforce

The condition of independence applies also to the exercise of its external sovereignty

(meaning it should be free in making ts foreign policy choices). The exercise of these

elements of a state's sovereignty may be constrained by international customary and treaty

law, in regard to both internal and external sovereignty; but such constraints are freely

undertaken by the state in question, through the free exercise of its internal and external

sovereignty.

The three legal requirements for acquiring international legal personality coincide with the

conditions for effective independent statehood:

- an independent and stable government

- a territory with settled borders within which the government in question exercises its

jurisdiction 5

- a permanent population settles in that territory and ruled by the government in

question

In international law there is no central authority granting international legal personality to

certify the validity of the elements required, so being it based on effectiveness, a state,

once it effectively meets those standards, is supposed to be a legal person objectively for all,

until it does not lose such characteristics. Even though pre-existing states engage in acts of

recognition of newly formed states, this is relevant in a political dimension (a state nowadays

is the result of dismemberment, secession and annexation).

Recognition

Legally it is not necessary for other states to accept the newly formed state for it to acquire

international legal personality (constitutive recognition doctrine), but the unilateral act is to be

co