Diritto internazionale

ECJ and the primacy of EU law

The primacy of the European treaties and secondary law is ensured through the European Commission, which monitors the domestic means of implementation. The EU Commission can sue member states before the ECJ, the ultimate guardian of the EU law. The primacy of the EU law was first affirmed in the Costa v. Enel case when the court maintained that treaties are independent 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, while France and Germany made some corrections to affirm 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 through worldwide competition, never losing sight of the sense of the global interdependence of all the factors producing domestic and international security.

International rights and consular assistance

What is really important today is the respect of international rights, protected and guaranteed also by diplomacy. As a matter of fact, anyone who has had a judicial problem in another country can request consular help, which must act to protect citizen rights, keeping in contact with them and informing them of every evolution of the situation. None can stop the work of the consular officers. One of the major cases of nationalism is the Breard v. Greene case, where Breard was a Paraguayan national and committed some crimes. For this, he was condemned by the US court to be executed, but even though there was the intervention of 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 right provided by the VCLT.

State responsibility and international obligations

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 conforming to custom. This differs 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 it useful to create reciprocal rights and obligations with other states and organisations, invoking such rights and complying with their reciprocal obligations.

There can be cases of infringements 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 implement 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 is given to the international obligations for states not to use or allow their territory to be used in a way that may hurt other states; as a matter of fact, infringements of international law occur as a consequence of damage caused by private companies' activities. If such damage is caused as a result of negligence by the state authorities in charge of implementing the international obligation of prevention, the rules of "state responsibility" apply. If damage is caused, the rules of "state liability for lawful activity" apply.

Legal actions and international wrongfulness

States, in order to avoid what has been said before, allow legal action by the victims of transboundary damage to produce the civil liability of the private operators before the domestic courts 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 these international laws, or sometimes they misinterpret the international law, infringing it. The state which has the rights corresponding 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 that 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.

Distinction between state responsibilities

There is a wide difference between a state's responsibility for an international wrongful act and responsibility for the breach of its domestic legislation. In case of a situation where a state has breached vis-à-vis another state an obligation governed by certain domestic legislation, it shouldn't be framed under the law of international state responsibility. This was the case with a dispute decided by arbitration between Brazil and Italy over the performance of a sublicence agreement governed by English Law concerning a joint-venture for the construction of military aircrafts.

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

Customary rules, the heart of the international law systems, have been codified in the ASR, but they are secondary rules because obligations of conduct provide obligation. An international legal relationship of responsibility exists between a wrongdoing state in breach of an international obligation and the state which suffered the damage. This process is applicable either to breaches of 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.

Legal frameworks and responsibilities

The enactment of legislation conflicting with international obligations aimed to constrain a national jurisdiction to prohibit the trespassing of foreign area (e.g., airspace). There are international rules providing for obligations that certain kinds of harm be avoided. Conducting harm, such as an arbitrary expropriation of foreign investment, would amount to 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 as "don’t do this," following active conduct, is usually detectable if immediate evidence. Circumstances pertaining to the breach of positive obligations lie in "do this." The state is responsible for other people. The wrongdoing could be born by inadvertence through state organs.

There are circumstances precluding wrongfulness like consent, the consent by state A to another state’s conduct in breach of a given obligation of the corresponding right. Countermeasures and sanctions are the two ways to avoid the vis-à-vis, for example, in case of human rights, peace, security, through legitimate self-defences. Countermeasures aren’t connected with the breach of an obligation protecting general interests, such as the banning of the use of armed force. This circumstance 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 responsive 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 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 paying compensations to the hurt entities.

Reparation and the legal relationship of responsibility

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 would 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 an internationally wrongful act including any damage caused by the internationally wrongful act of a state. The forms of reparation consist 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 state.