Appunti International Law

International Law

26/09

National ordinament (Western countries):

1. constitution (principle of nation + fundamental rights);

2. laws;

3. decree.

In Arabic Statest Sharia

News in IL: Supranationality

Each state has its own sovereignty but, you have to cope with the idea of

supranationality, ex. Costa vs Enel and the idea of primacy of the UE law above the

national ones, Van Gend, Loos vs NL and the direct principle for citizens.

Sources of International Law

Statute of ICJ, art. 38

-General principles of law + international custom,

-treaties,

-acts of the international organisations.

International treaties: legal act establishing rights and obligations between

international actors.

NB: same thing but different names, such as agreement, convention, covenant, ect.

Protocol: still a treaty but a very specific one, bc it usually modifies the one to whom it

is added to or it just add something new.

Exchange of notes: notes, letters explaining some points to a State/ head of the

State/minister ect.

Memorandum of understanding: not legally binding, sharing same view on same

problems.

Who is an international actor?

1. States (sovereign),

2. International organisations,

3. Federal sub-entities (ex. CH cantons, federal regions ect.).

There are some different categories: bilateral treaties, multilateral treaties that can be

universal or regional.

Regional bc they are continental, but there might be clausules saying that they are

open to states non-member.

Treaties can be permanent, or denunciable, have a limited time of life, you can have

condition for being a member or they can have illimited accession.

How is created a treaty?

Step 1, Negotiations: plenipotentiaries, delegation that act with some given

instructions and have a negotiation mandate with a limited action. A new way is that

to use technology, for example emails, video calls, skypes and allow even private

citizens to participate and give an opinion (anyway the opinion is not part of the

negotiation);

Step 2, Signature: just for saying that the document signed is the one discussed during

the negotiation, no legal value. 1

Step 3, Ratifications: gives the legal value and makes the act come into force.

State are represented by plenipotentiaries habilitated to negotiate in the name of their

respective governments. Usually negotiations are secret.

Competent organ People upon referendum, Parliament or Government depending on

the importance of the matter.

Negotiationplenipotentiaries restricted by internal instruction (negotiation mandate)-

Signature treaty not yet in force.

RatificationNational declaration to be bound by the treaty. Issued following approval

of the text by the competent domestic organ. Entry into force subject to a quota of

accepting states, example

International treaties generalities

Definition: legal act establishing rights and obligations between international actors

Inconsistent terminology: agreement, convention, covenant etc.

- Protocol, example

- Exchange of notes, example

- Memorandum of understanding, example

International actors: sovereign states, international organizations, exceptionally

federal sub-entities

CH: cantons art. 56 Cst.

Different categories:

- Bilateral treaty/ multilateral treaty (regional-/universal-)

- Regional with an universal vocation example

- Unlimited accession (example) / limited accession

- Permanent treaty / denunciable treaty

A Memorandum of Understanding (MoU) or letter of intent is a legal document

describing a bilateral or multilateral agreement between parties. It expresses a

convergence of will between the parties, indicating an intended common line of action

and may not imply a legal commitment. Secret diplomacy, usually not published, not

formally binding, express a common desire, no need for ratification: Memorandum of

Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US

and Cuba, meant to criminalize hijacking in both countries (February 3, 1973)

Cantons fear for their areas of autonomy to be infringed by the central state by way of

international law: what would be impossible to do for the national legislator, would be

imposed by way of international law.

P. Ex fixation d’une frontière (pas dénonçables)

Schengen

Convention européenne des droits de l’Homme

L’actuel art. 141, al. 1,

let. d, ch. 3, Cst. ne prévoit l’application du référendum facultatif que pour les traités

qui entraînent une unification multilatérale du droit. La mesure proposée vise donc à

introduire un instrument indispensable à l’heure actuelle, dans la mesure où il est de

plus en plus créé de règles de droit au niveau international. Il s’agit de faire en sorte

que les droits populaires soient les mêmes en matière de droit international qu’en

matière de droit national.

03/10

NB: remember the difference between signature and ratification.

Switzerland treaty making power.

In case Swisse wants to join a supranational org. it needs a double mandate, from the

cantons and from the people (double majority). 2

Same if the country wants to join some international organizations which but it’s

national/international/ multilateral defence.

What’s the problem? New global word, very fast and the treaty procedure is very slow.

Are there solutions? Still no solutions.

But new perspective to IL, more inclusive and dynamic.

Now we have reservation and protocol: idea is that is better to have more States

interacting, discussing, participating to the negotiation even though they do not

accept the whole treaty.

Institutional justification on the ratification process

Its function is to safeguard the legislative power of the Parliament (democratic

decision making process) or (but to a lesser extent) the autonomy of national sub-

entities (federalism).

By way of to the ratification process, governments are prevented from obtaining by

way of international treaties what they cannot obtain on the domestic level.

In other words: no circumvention of the opposition of the Parliament or the Federal

States.

Obiezione

Francia

Conformemente all’articolo 35 paragrafo 2 del Protocollo, la Francia fa obiezione

all’entrata in vigore automatica del Protocollo.

Infatti, la ratifica del Protocollo richiede l’autorizzazione del Parlamento in applicazione

dell’articolo 53 della costituzione francese. La Francia non è dunque in grado di

accettare l’entrata in vigore automatica del Protocollo allo spirare di un periodo di due

anni dopo la sua apertura all’accettazione, ossia il 1° ottobre 2000, nella misura in cui

le procedure interne avviate a tal fine non siano state ancora ultimate.

NB: exc. Riserva degli USA su icorsi.

NB: reservations and objections

What is a reservation?

Definition: « unilateral statement, however phrased or named, made by a State, when

signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to

exclude or to modify the legal effect of certain provisions of the treaty in their

application to that State” (Vienna Convention on the Law of Treaties (art. 2 (1 d))

Favored in order to increase the number of member states Allowed if not expressly

prohibited by the treaty or inconsistent with the scope and goal of the treaty (ibidem,

art.19)

Withdrawal of reservations: always possible

Reservation or declarative interpretation?

Other Examples of reservations: United States Convention on the Prevention and

Punishment of the Crime of Genocide in 1986. The reservations taken were:

That with reference to article IX of the Convention, before any dispute to which the

United States is a party may be submitted to the jurisdiction of the International Court

of Justice under this article, the specific consent of the United States is required in

each case.

Convention against racism

Reservation regarding the list of fundamental rights but acceptance of procedural

means.

Prohibited: the whole treaty or only certain articles

Implementation of art.4 UN 1966 Convention by Swisse

Article 261bis Criminal Code, coupled by a reservation of freedom of expression: 3

La Svizzera si riserva il diritto di adottare le misure legislative necessarie

all’applicazione dell’articolo 4 tenuto debitamente conto della libertà di opinione e di

associazione, segnatamente formulate nella Dichiarazione universale dei diritti

dell’uomo.

By USA

I. The Senate’s advice and consent is subject to the following reservations:

(1) That the Constitution and laws of the United States contain extensive

protections of individual freedom of speech, expression and association. Accordingly,

the United States does not accept any obligation under this Convention, in particular

under articles 4 and 7, to restrict those rights, through the adoption of legislation or

any other measures, to the extent that they are protected by the Constitution and law

of the United States. »

10/10

What is the impact of an objection? A statement reserved to a reservation.

US legislative and jurisprudential impact

US General Reservation, priority to freedom of expressionHate speech allowed in

public and private spheres.

CH

CH reservation protecting essential aspects of freedom of speechHate speech

allowed only in private spheres.

FR e GER no reservation, hate speech banned both in private or public.

Convention of Genocide more than a simple paper but introduces mechanisms for

enforcing it and protecting it, such as article IX that says that any dispute concerning

the treaty shall be submitted to the ICJ.

What he Convention did is give a generally clear and approved definition of what is a

genocide, the particularities ect.

Pascià Omar Al Bashir of Sudan is charged of genocide of Dharfur, a minority of

muslims living in Chad. The Hague charged this Pascia for genocide and there is a

mandate of arrest for him. Sud Africa actually protected him from getting arrested.

ICJ has the right to solve problems concerning interpretation, disputes ect.

Art VI says that in case it is needed a judgement about a case of genocide, it must be

done by a specific court of tribunal.

USA why ratification?

Senator Proxmire really wanted to ratify the convention, but there was a big opposition

because of the military commitment of the USA all over the world.

Why he wanted to ratify the Convention? USA had to give a signal to the rest of the

world by being part of an humanitarian treaty.

He won with the compromise, but the declaration are really high even the

declaration are a bit strange to understand, for instance there will no be extradition of

the USA military personnel.

NB: the USA has no protection for the citizens, if a USA citizen makes a crime in any

part of the world they can be extradited for being persecuted abroad.

There have been other 9 states joining the USA, among them Yugoslavia and other

countries of Asia.

About the Italian objection, what are the consequences?

The doctrine is still divided: some say that regarding the country that objected to the

reservation, this country is not bounded by it. The others say that it is an important

political declaration but has no legal value. 4

Administration and publication of treaties

Multilateral treaties: there is a depositary State or an International Organization. A

State is chosen for collecting the means of ratification, or an IG and generally is the

UN. A State usually chosen is Switzerland, because of its neutral status, moreover the

depositary State is the same where the negotiations took place.

Lugano was the place for the Lugano convention, for the International private

relations, such as marriage, divorces ect. It concerned the intra-European relation (UE

and Switzerland + States that want to join).

The function of the depositary State is that to collect them, review ect and publish it

but no study if there are legal or illegal reservation, no legal evaluation. So, the work is

mostly that of a secretarial.

The official language is (or are) defined by the treaty it might be even different from

the languages if the States members.

UN may decide to publish treaties that are not in force yet, because of their impact in

the international community. Same does Switzerland, on the government website

there is a space reserved to the international law publication, reporting all the treaties

and convention to whom Switzerland is part and what is their topic. Some does Italy.

Multilateral treaties: Depository State or International organization

Example: Switzerland as depository state

Official Collections

United Nations collection of treaties

Switzerland: art. 3 Fed. Law on official publications /special section of the systematic

collection of laws “International Law”

Beware: always check ratification and reservation lists !

Official (s) language (s): defined by the treaty; may not coincide with the official

languages of Member States

Secret treaties UN wants no secret treaties

Ratification of Secret Acts: usually there is not a ratification, it’s only a

governmental sign, by going to the Parliament the act is going to be public, even

though there are some sections discussed “a porte chiuse”. What happens usually is

that only the “public” part is shown to the Parliament, while the rest is secret, and it’s

known only by the government or the negotiators.

Secret acts there are different types.

- Treaties that are wholly secret, they exist, and are usually bilateral (or among 3

countries);

- Normal treaties where it is secret that there is a State secretly member, ex.

Treaty among It and CH, but nobody knows that even SPA is part (esempio

inesistente). Es. Reale, GER-IT in 2WW + JAP not mentioned as part of the

treaty;

- Treaties secretly mention a military or defensive alliance, there is a classical

defence pact among the countries, but the secret part refers to military interest

and concordance of territories (es. Ribben-Motolov);

Extinction of treaties

Common will of all member States

 Expiration of time limit,

 Denunciation by a single member state,

 Minimal number of member states required for the survival of the treaty



Example, Succession of states: diverging practices; 5

ex.: treaties ratified by the former USSR are considered to bind the new independent

states as long as they do not express a will to the contrary

Specific notification of the successor State to be bound by previous obligations

 of the predecessor,

Example: Declaration of the Federal Republic of Yugoslavia of April 1992, notified to

the UN Secretary General (see Exercise 1.2)

New political governement, new organizations is not a problem of succession of states:

international obligations are still in force.

Invalid treaties 46ss Vienna Convention on the Law of Treaties/ ITA)

art.

When?

- Corruption / Coercion (art. 50- 51)

- Misunderstanding (art. 48)

- Agent without power to conclude a treaty ? (art. 47)

- Non-Compliance to the internal ratification procedure? (art. 46)

- Breach of treaty may cause temporarily suspension

- Violation of peremptory norms (see 1.42)

17/10

International Custom

Unwritten rules play a more significant role compared to domestic law…

but their existence is often difficult to establish. Two criteria:

Concordant and constant practice

Opinio necessitatis

Ex. Corfu Channel Case, UK v./Albania, 1949 (Customary duty to notify mines)

Protest: declaration not to be bound by a customary rule

Efforts to codify customary rules

Mainly under the auspices of the United Nations (codification division)

Ex: Vienna convention on diplomatic relations (1961): art. 29-39 diplomatic immunity (

EN / IT)

Nevertheless, not all rules can be codified; ex.: the nuncius as dean of the diplomatic

corps

Non written means uncertainty

Objective criteria: The notion of practice establishing a customary rule implies that the

practice is followed regularly, or that such state practice must be "common, consistent

and concordant". Given the size of the international community, the practice does not

have to encompass all states or be completely uniform. There has to be a sufficient

degree of participation, especially on the part of states whose interests are likely be

most affected, and an absence of substantial dissent. No persistent objection of a

State by acts or declarations

Subjective criteria: psychological element, states think that the rule is necessary, they

are convinced by its rationale and should be obeyed. The fact that there was no use of

nuclear weapons since 1945 – no practrice – does not mean that there is customary

ban on nuclear weapons.

The Corfu Channel Case (UK v. Albania), the first case decided by the court, was

brought before it at the suggestion of the Security Council. On 22 October 1946, two

UK destroyers passing through the Corfu channel off the Albanian coast struck mines

whose explosion caused the death of 46 seamen and damage to the ships. The British

thereupon mineswept the channel. Albania claimed that it had not laid the mines. The

court found Albania "responsible under international law for the explosions… and for

the damage and loss of human life that resulted therefrom" and determined the

6

compensation due to the UK at £843,947, equivalent to approximately US$2.4 million

at that time.

Art 22: inviolabilité de locaux; 27 (3) : valise diplomatique

Other sources of IL

Also sometime referred to as principles of mature legal systems or of civilized

countries…

Unclear and controversial category which is supposed to include legal principles

common to a large number of systems of domestic law.

Ex.: Considerations of equity or proportionality

Ex. Meuse Case, Belgium v. The Netherlands (1937), “In equity, the Netherlands

cannot ask Belgium to discontinue the operation of the Neerhaeren Lock when the

Netherlands remain free to continue the operation of the Bosscheveld Lock.

Powerfull state might play a more decisive