Diritto internazionale

ECJ. The primacy of the European treaties and secondary law is ensured through the european

commision which monitors the domestic means if implementation. EU commision can sue member states

before the ECJ, the ultimate guardian of the EU law. The primacy of the EU law was firstly adfirmed in the

Costa v. Enel case when the court maintained that treaties are indipendent sources of law and they can’t

be overridden by domestic legal provision without the intervention of the community law. The UK passed

the european community act whilst France and Germany made some corrections in order to adfirm the

supremacy of the EU law, according to the basic rights provided by each constitution. Then there was the

charter of fundamental rights of the EU in 2000, legally binding with the Lisbon treaty of 2009. A key point

is that international law acts as a common language with which to pursue individual advantages thorugh

worldwide competition, never loosing sight of the sense of the global interdependence of all the factors

producing domestic and international security.

What is really important today is the respect of international rights, protected and guaranteed also by the

diplomacy. As a matter of fact, anyone who has had a judicial problem in another country can request the

consular help, who must act in order to protect the citizen rights, keeping in contact with him and

informing him of every evolution of the situations. None can stop the work of the consulae officers. One of

the major case of nationalism is the Breard v. Greene case, when Bread was a paraguayan national and

commited some crimes and for this was condamned by the US court to be executed, but even if there

was the intervention of the paraguayan consular officers, after a while of waiting, he was executed. The

paraguayan government sued the US court in front of the ICJ. So consular assistance is a basic rights

provided by the VCLT

Chapter 5

States and intergovernmental organisations take part in the production of rules of which they are also

addresses, directly through the given consent to treaties by following conduct which evolves into general

practice, recognising such practice as confirming to custom. This is different from domestic legal systems

where the legislative organs operate above the recipients of the rules they produce, aside from the rules

created by contracts. States find useful to create reciprocal rights and obligations with other states and

organisations, invoking such rights and compliy with their reciprocal obligations. There can be cases of

infringments of international law by inadvertence through internal legislative, administrative and judicial

operations. The state officials that have to prepare or adopt the international rules are different from those

who have to implementate and apply it. So, the division of powers can add some complexity considering

this thing in the law of responsibility of states for internationally wrongful acts. Special regard for the

international obligations for states not to use and allow to use their territory in a way that may hurt other

states; as a matter if fact, infringments of international law occur as a consequence of damage caused by

activities of private companies. If such damage is causes as a result of negligence by the state authorities

in charge of implementation of the international obligation of prevention, the rules of “state responsibility”

apply. If damage is caused, the rules of “state liability for lawful activity” apply. States, in order to avoid

what said before, allow legal action by the victims of transboundary damage in order to produce the civil

liability of the private operators before the domestic courts either of the country where the damage was

caused.

Sometimes there are states’ organs that don’t know if they are breaching some international laws in doing

their job, because they don’t know the existence of this international laws, or sometimes they bad

interpretate the international law, infringing it upon. The state who has the rights which correspond to the

obligations breached will invoke the international wrongfulness of the conduct complained of. The state

invoking the responsibility of another state will have to prove the actual conduct complained of, and the

existence of an international rule producing obligations infringed upon by the conduct of the wrong state.

If the state who can invoke the other state’s responsibility doesn’t do this in a precise time, it will lose its

possibility to sue the wrong state, according to the principle of estoppel-acquiescence. The law of

international state responsibility provides the rules for assessing the occurrence of an internationally

wrongful act and its consequences.

There is a wide difference between state’s responsibility for international wrongful act and responsibility

for the breach of its domestic legislation, in case of the situation in which a state has breached vis-vis

another state an obligation governed by a certain domestic legislation shouldn’t be framed under the law

of international state responsibility. This was the case with a dispute decided in by an arbitration between

Brazil and Italy over the performance of a sublicence agreement governed by English Law concernig a

joint-venture for the construction of military aircrafts.

The rules on international state responsibility are also applied by international courts and tribunals in the

exceptional cases where the applicant is not a state or an intergovernmental organisation, but an

individual or a company, as with the cases before human rights courts. The law of international state

responsibility is a unitary regime which doesn’t provide for different forms of responsibility according to the

kind of sources of the obligations breached. Here, the difference between municipal jurisdictions,

generally contemplating the different forms of liability either for breach of contract. Customary rules, heart

of the international law systems, are been codified in the ASR, but they are secondary rules, because

obligations of conduct provide obligation. An international legal relationship of responsibility between

wrongdoing state in breach of an international obligation and the state which suffered the damage. This

process is applicable either to breaches for treaties and customary rules. The fact that the damaged state

suspends or terminates the breached treaty, doesn’t preclude its rights to invoke the rule of state

responsibility.

An internationally wrongful act consists of conduct attributable to a state, as a subject of international law,

that is in violation of an international obligation binding on that state. The occurrence of damage isn’t a

requirement for there to be an international wrong, so the very breach of an international obligation is

sufficient for the breach of an international rule. That explains the importance of declaring the

wrongfulness of a given conduct enjoying the wrongdoing state to provide assurances against the

repetition of the wrongful conduct in the future. The enactment of legislation conflicting with international

obligations aimed to constrain a national jurisdiction to prohibit the trespassing of foreign area (ex.

Airspace). There are international rules providing for obligations that certain kinds of harm be avoided.

Conducting providing harm, such as an arbitrary expropriation of foreign investment would amount of a

breach of the international obligation in question. State organs when acting in contrast with an

international obligation are far from intending to breach the law. On the contents of the individual primary

rules in question providing for due diligence obligations with regard to specific cases, rather than on a

general secondary rule concerning international state responsibility which is applicable to the breach of

any international obligation. A state may not invoke its municipal law to justify conduct in breach of

international law. The violation of negative obligations such “don’t do this”, following the active conduct is

usually detectable if immediate evidence. Circumstance pertaining to breach of positive obligations, lie

“do this”. The state is responsible for other people. The wrong doing could born by inadvertance through

state organs. There are circumstances precluding wrongfulness like the consent, the consent by state A to

the one another state’s conduct in breach of a given obligation of the corresponding right.

Countermeasures and sanctions are the 2 way to avoid the vis-à-vis, for example in case of human rights,

peace, security, through a legitimate self-defences. Countermeasures isn’t connected with the breach of

an obligation protecting general interests, such as the banning of the use of armed force. This

circumnstance may operate in tribunals, when demanded by a UN SC resolution as a reaction to a

serious breach of international law regarded by the SC as a threat to international peace and security, this

responsaive conduct is treated as a sanction. Consistent with Art.51 of the UN Charter, when the

international wrong against which a response is taken consists of an act of aggression or armed attack,

the response may well involve the use of armed force, as a legitimate self-defence, provided it be

proportionate and carried out in compliance with international humanitarian law, that is to say that a state

provides that “the behaviour taken by the state was the only way to protect an essential interest against a

serious and imminent danger”. Another circumstance which precludes wrongfulness is that of necessity,

and according to art.25 ASR (Responsibility of States for Internationally Wrongful Acts) “a situation of

necessity may be invoked only exceptionally to preclude conduct in violation of international law”; so

necessity isn’t a right way to explain the wrongful act against the international law. For example, Argentina

said that it failed different contracts and obligations signed with foreign investors for its financial

difficulties, neglecting all the treaties and parallel customs. But all its excuses are not sufficient to avoid it

to pay compensations to the hurt entities.

The bilateral nature of the secondary legal relationship of responsibility corresponds to the bilateral nature

of the legal relationships depending on the primary rules of international law based on reciprocity.

Reparation constitutes the main object of the legal relationship of responsibility or represents the principal

legal consequence of an internationally wrongful act: this means “re-establish the situation that have

existed if that act had not been committed”. The ILC (International Law Commission) in its ASR, states

that the responsible state is under an obligation to make full reparation for the injury caused by

internationally wrongful act including any damage caused by the internationally wrongful act of a state.

The forms of reparation consists of restitution, compensation… The re-establishment of the situation

existing prior to the wrongful act may consist in a legal form of restitution as the obligation for the

wrongdoing st