Law Flashcards
1
Q
Vienna Convention, Article 31
A
“General rule of interpretation” (objective interpretation)
- a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.
2. "the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes": a. Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; b. any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty (consent of all parties needed) 3. there shall be taken into account, together with the context: a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (as in national law, the interpretation is provided by those who make the law; the interpretation comes from the parties involved in the convention) b. any subsequent practice in the application of the treaty which establishes the agreement of the parties ragarding its interpretation; (we talk here about CUSTOMARY LAW established among the agreeing states) c. any relevant rules of international law applicable in the relations between the parties 4. a special meaning shall be given to a term if it is established that the parties so intended
2
Q
Vienna Convention, Article 32 (supplementary means of interpretation)
A
Supplementary means (subjective interpretation)
recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
a. leaves the meaning ambiguous or obscure; or
b. leads to a result which is manifestly absurd or unreasonable
(subjective interpretation helps to reconstruct the will of the parties taking part into the covenant that might be different from one another due to different interpretations. This happens only about certain provisions; the general purpose of the treaty must be clear in any case)
3
Q
Vienna Convention, Article 33.4 (authentication on more languages)
A
in case of treaties authenticated in two or more languages:
“…when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
4
Q
Interpretation process not included in the Vienna Convention
A
- Rules of legal logic:
“when a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the ojbects and purposes of the treaty demand that the former interpretation should be adopted”- General principles of law:
favor debitoris= favour for the weaker party
Instance: human rights treaties– there are extensive interpretations to favour the individual - Implied powers’ doctrine:
when one delegates duties to a third party, it comes along with them the capacity to engage in all those activities that are necessary for the accomplishment of these with power
- General principles of law:
5
Q
Third parties, Article 34
A
“pacta sunt servanda”= treaties do not produce any effecst for third parties
Vienna Convention, Article 34:
“a treaty does not create either obligations or rights for a third State without its consent.”
Articles 35-37:
they indicate the ways and means to attribute rights or obligations to a third State with its consent
6
Q
Vienna Convention, Article 2 (definition of reservation)
A
“Reservation means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to atreaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.
(it makes sense in multilateral treaties. This principle contradicts "pacta sunt servanda": it allows conventaning States to make unilateral declarations about not agreeing on certain provisions of the treaty)
7
Q
ILC, guide to practice on reservations to treaties (interpretative declarations)
A
1.2. “Interpretative declaration”= unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.
(it is about providing a mere interpretation of that provision, without legal effects
8
Q
Tradition rule about reservations
ICJ, reservations to the Convention of Genocide
A
The reservation must be accepted by all States, otherwise it cannot take part into the convention
“a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.”
- if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can...consider that the reserving State is not a party to the Convention - if...a party accepts the reservation as being compatible with the object and purpose of the Convention, it can...consider that the reserving State is a party to the Convention
9
Q
1.4. Conditional interpretative declarations
A
- A conditional interpretative declaration is a unilateral statement formulated by s State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to treaty, whereby the State or international organization subjects its consent to be bounf by the treaty to a specific interpretation of the treaty or of certain provisions thereof
- Conditional interpretative declarations are subject to the rules applicable to reservations
(conditional interpretative declarations= reservations)
- Conditional interpretative declarations are subject to the rules applicable to reservations
10
Q
Vienna Convention, Article 19 (invalidity of reservations)
A
“A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
- the reservation is prohibited by the treaty; - the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or - in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty
11
Q
Vienna Convention, Article 20 (objection to reservation)
A
- “An objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State”
- “…a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period…”
12
Q
Vienna Convention, Article 21 (relations with the reserving State)
A
- a reservation established with regard to another party in accordance with articles 19, 20,…;
a. modifies for the reserving State in its relations with that other party the provsisions of the treaty to which the reservation relates to the extent of the reservation; and b. modifies those provisions to the same extent for that other party in its relations with the reserving state
(this means that in the relation between the objecting and the reserving States, the provisions addressed by those reservations are not valid for both; still the rest of the agreement must be complied to by both. The provisions addressed by the reservations cannot be applied in the relations between the reserving and the objecting States to the extent indicated by the reservation itself. Practically the reserving State wins)
3. when a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the serving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation
(invalid reservations happen under conditions specified by Article 19; in this case only the reservation falls while the reserving State can still remain in the treaty. Anyways, the State might also want to leave. Such declarations can be made at any time.
Questions about the validity of reservations and the reamning of reserving States in treaties is not yet fully settled)
13
Q
Invalidity
A
it has retroactive effects, as the treaty is considered not be valid since its entry into force; TERMINATION: it is instead the act of ending a treaty, which means that such event will have effects only for the future.
according to the Vienna Convention, invalidity can occur in the cases expressed by:
- Atricle 46: violation of domestic law
1. "a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance."
2. "a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith."
- Article 53: treaties conflicting with a peremptory norm of general international law ("Jus cogens")
"a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"
- Article 48: error
1. "a Statemay invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent ot be bound by the treaty"
(instance: treaty concerning the delimitation of a country-- an island may be misunderstood as existent/non-existent
2. "the paragraph above shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error"
3. "an error relating only to the wording of the text of a treaty does not affect its validity (article 79 then applies)"
- Article 49: fraud
"if a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty"
- Article 50: corruption of a representative of a State
"if the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty"
14
Q
Coercion Vienna Convention (invalidity)
A
- Article 51: coercion on the State representative
“the expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its presentative through acts or threats directed against him shall be without any legal effect”- Article 52: coercion on the State
“a treaty is void if its conclusion has been procured by the threat or use of force in violation of principles of international law embodied in the Charter of the United Nations”
- Article 52: coercion on the State
15
Q
Final Act of the UN Conference on the Law of Treaties
A
declaration on the prohibition of military, political or economic coercion in the Conclusion of Treaties
“The United Nations Conference on the Law of Treaties,…”
1. "solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State ro perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent"
16
Q
Statute of the International Law Commission, Article 15 (codification and progressive development)
A
a. “The progressive development of Internationa Law”= term used to identify the preparation of draft commissions on subject that have not yet been codified (regulated) by International Law or in regard to which the law has not yet been sufficiently developed in the practice of States…”
LACKING COMPREHENSIVE REGULATION
b. "Codification of International Law"= term used to indicate the more precise formualtion and systematization of ruled of International Law in fields where there already has been extensive State practice, precedent and doctrine." PRECISE FORMULATION AND ESTABLISHED RULES
17
Q
Internationa Law Commission
A
First permanent international body solely dedicated to the dual tasks of codifying and developing Interional Law and its mandate requires it to navigate the distinction between codification and progressive development. While these concepts are generally understood, the ILC’s work often reveals the complezities in differentiating between the two.
18
Q
UN codification practice, Technical procedure
A
- TECHNICAL PROCEDURE:
a. on initiative of the GA (or any member State) some fields are identified as needing codification due to gaps in existing laws or emerging legal issues or state practice
b. special rapporteur: prepares a first written piece suggesting new regulations for a legal field whose codification has been entrusted to the special rapporteur by the ILC
c. codification draft (first reading): legal experts present a preliminary article or proposal to the ILC following discussion and improvement
d. codification draft (second reading); the finalized text is brought from the ILC to the GA with annexes explaining the rationale, specify intent and scope of the legal norms two possible paths:
- General Assembly– Convention. The ILC submits the final draft to the General Assembly, which may decide to adopt it as a formal international convention
- Multilateral Conference– Convention. The draft may be discussed and adopted at a multilateral conference involving representatives from multiple states. This method had been used for major international agreements such as the Geneva Conventions on the Law of the Sea
19
Q
UN codification process, Political procedure
A
- POLITICAL PROCEDURE:
○ General Assembly path:
i. General Assembly: may initiate codification processes through resolutions by requesting investigation by the ILC on specific topics
ii. Committee: the General Assembly may establish specialised committees to examine drafts on specific legal issues
iii. Codification Draft: the committee discusses the draft and suggests amendments
iv. General Assembly: the draft is then submitted to the General Assembly for further discussion, revision, and potential adoption as a convention
v. Convention: the GA, after the last examinations, may decide to adopt it as a resolution, which means that it is not legally binding to the States but carries nonethelessmoral and political weight
vi. Implementation: States may then align their laws and practices with the principles outlined, even in abscence of a binding feature○ MULTILATERAL CONFERENCE PATH In some cases, states prefer to negotiate complex issues at a multilateral conference where all interested states participate. The conference elaborates on and negotiates the draft text, with room for diplomatic compromise on contentiuos issues. i. proposal of to convene a multilateral conference to address specific issues; ii. representative of States negotiate the terms of the draft iii. the finalized text is adopted at the conclusion of the conference as an international convention iv. States then proceed to sign and ratify the convention through their domestic legal process v. States are then expected to implement the treaty in their domestic legal system
20
Q
Types of rules a codification may contain
A
- rules codifying existing customary law;
- rules crystalizing nascent rules of customary law;
- rules that become an element in the process whereby new rules of customary law come into being;
- rules destined to remain conventional (rules not of custom but destined to remain rules of the treaty only)
21
Q
Article 54/56 (termination or withdrawal)
A
The termination of a treaty or the withdrawal of a party may take place:
a. in conformity with the provisions of the treaty (e.g. final term (instance: European Coal and Steel community) or resolutory condition); or Treaties have a certain duration; over that duration the treaty is not valid anymore. Resolutory condition= it provides that if a certain event takes place the treaty will end. If Italy will lose its sovereignity the treaty will end for example. b. at any time by consent of all the parties States may agree to end the treaty, by consent of all countries involved.
A treaty shall be considered as having been terminated if it provides for a fixed duration, unless the parties agree to extend it.
If the treaty does not provide for a fixed duration, it may be termianted by one of the parties:
- if the treaty provides for such termination; or
- if there is a right to terminate implied by the nature of the treaty
(by this article we mean to underline the fact that international law aims at stability and therefore the maintainance of treaties; in countrary case the modalities of denunciation or withdrawal can be specified by the countries involved. The rule is that there is not the possibility of denunciation or withdrawal unless the States otherwise accept the possibility of doing so; in addition circumstances of denunciation may be guaranteed according to the nature of the treaty (ex. political or military alliance, trade agreements as well.
There are some treaties whose nature instead does not allow for denunciation; example: human rights agreements that concern political rights. The Human Rights Committee has established that such conventions do not allow for denunciation.
Such treaties do not have the character for which denunciation is guaranteed because they concern protection of the individuals.
In reality there are some countries that have got out of the convention but such denunciations are considered invalid)
22
Q
Vienna Convention, Article 60 (material breach)
A
- A material breach of a bilateral treaty be one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
(let this be another condition under which a treaty is terminated) - a material breach of a multilateral treaty by one of the parties entitles:
a. the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
i. in relations between themselves and the defaulting State, or
ii. as between all parties
(suspend= not terminated; it is not capable of producing its legal effects over a certain period of time as it is not yet expired and the purposes are not yet been achieved. They can decide if the violation is serious enough that hte treaty is so much damaged that the treaty is terminated; or they can decide to expell the violating State from the treaty or to suspend the State from the treaty.
This kind of rules providing for the suspention or the expulsion of a defaulting State are typical of treaties constituting an international organization.
Russia for instance was expelled by the Council of Europe= indipendent organization from the EU involving all european countries which promotes as main objective human rights and the rule of law.
Another organization which provides for the possibility of suspencion is the EU according to certain procedures; another guaranteeing suspencion or expulsion is the UN.)
b. a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State
(a part specially affected: think of a treaty like the Charter of the UN which provides the prohibition of force– if a State attacks State B, the latter may invoke suspencion. How can you suspend the treaty between you and another in an international organization? You cannot impede its representation in the council for instance. In fact it has not that much relevance. Let’s consider the protection of the environment and against pollution: a State A may invoke the breach in case the neighbouring country is polluting too much.
c. any party other than the defualting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such character that a material breacj of its provisions by one party radically changes the position of every party with repsect to the further performance of its relations under the treaty.
(some treaties contain provisions such that if they are violated this prejudices all other parties in the treaty, therefore anyone of them may invoke suspension of the treaty. So it is not about the relation with the defaulting State. It is for example the case of disarmament treaties (nuclear arsenal): if a State commits violation as it decides to acquire more nuclear weapons, then the position of each of the other States in the treaty is radically modified. It is the case that each country suspends its adherence to the treaty)
material breach= ripudiation of a treaty not sanctioned by the present Convention; or
the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
Paragraph 5
Paragraphs 1 and 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
(you cannot respond to a violation of human rights by committing crimes against human rights yourself. Reprisals nowadays are very limited.)
23
Q
Supervening impossibility
A
Article 61
it is an extremely rare case, because the treaty must be interpreted in a very restricted way.
1. a party may invoke impossibility of performing the treaty as a ground for terminating or withdrawing from it if the impossibility results from the disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty
2. impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. (example: two countries conclude a treaty for the exploitation of an island. Then the island disappears; then the treaty is not anymore applicable)
24
Q
Vienna Convention, Article 62 (change in circumstances)
A
- a fundamental change of circumstances which has occured with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
a. the existence of those circumstances constituted an essential bassis of the consent of the parties to be bound by the traety; and
b. the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
(the effect of the change is to transform he future performance of obligations under the treaty. Such fundamental chane may be war. Still, many treaties still remain into force during war. Even at war nowadays countries do not totally end diplomatic exchanges)- a fundmental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
a. if the treaty establishes a boundary; or
(this provision prevents the violation of States’ sovereignity)
b. if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty
- a fundmental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
25
Treaty-based sources (+ instance)
Treaties may create new sources: this happens, in particular, within certain international organizations.
TREATY-BASED= DECISIONS OF INTERNATIONAL ORGANIZATIONS
Such acts of organs of international organizations produce legally binding effects on all member States and cannot be addressed to as agreements, inasmuch as:
1. the acts are adopted through majority vote
2. the States who were countrary are not exempted from the duty to comply
3. they are adopted by a body not representing all member States
INSTANCES:
- Article 25 of the Charter of the United Nations
"the Members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter"
- Article 41 of the Charter of the United Nations
"the Security COuncil may decide what measures not involving the use of armed force are to be emplyed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations"
26
Traety on the functioning of the European Union, Article 288
- to exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions
○ a regulation shall have general application. It shall be binding in its entirrty and directly applicable in all Member States
○ a directive shall be binding, as to the result ot be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods
○ a decision shall be binding in its entirety
27
Recommendations
RECOMMENDATIONS= SOFT LAW
Most acts of international organizations do not produce any binding effect= recommendations
Member States shall consider them in good faith but are not bound to comply.
These are called acts of SOFT LAW.
It may reflect international customary law or treaty law, it may be transposed into binding treaty form, or it may contribute to the formation of customary international law.
Soft law is often used to expand or update treaty norms, especially in technical fields subjected to rapid and continuous evolution. Soft law is importat in today's international community, especially in some sectors; it is often respected not less than treaties.
28
UN Charter, Article 10 (recommendations)
"The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommedations to the Members of the United Nations or to the Security Council or to both on any such questions or matters."
29
Relation between customary law and treaties (+ conflict)
The validity of treaties rests on a customary norm= pacta sunt servanda.
Treaties are regulated by customary norms, but this hierarchy of rouces does not entail a superioti of norms.
Principles used to solve norm conflict between norms of the same level:
- lex posterior derogat legi priori: subsequent norms repeal earlier norms
- lex specialis derogat legi generali: special norms repeal general norms (treaty norms prevail because they are "special" in relation to the parties)
a. treaties will normally previal over subsequent customary rules, unless parties to the treaty apply such rules also in their mutual relations
b. there could also be the case of a subsequent (particular) customary rule arising within the treaty in questio, in derogation to the treaty (but it can be construed as a tacit agreement)
It is possible to find the same rule both in customary law and in treaties.
The relation between customary and treaties can be of three kinds:
- emerging customary law: a treaty law may include a rule that is emerging and crystalize it
- pre-existing customary: a treaty rule may include a pre-existing custom by codifying it-- "declaratory treaty"
- new customary: a treaty gives birth to a new custom. In this latter case it is but difficult to trace the customary rule, as it is indeed a product of a treaty and therefore its birth cannot be traced back to a general opinio juris
30
Types of codification of IL
- treaties: the only source of international law able to create legally binding effects, but only for those States that sign the treaty. Treaties aim at codifying customary law.
- private codifications: scholars that codify international law according to sectors. This be like codifications of Harvard Law School, Institut de droit International, International Association
31
UN Charter, Article 13 (General Assembly's studies)
"The General Assembly shall initiate studies and make reccomendations for the purpose of encouraging the progressive development of International Law and its codification. In order to pursue this objective, the Internationa Law Commission was created as a subordinate body by the General Assembly in 1947."
32
Statute of the International Law Commission, Article 15 (definittion of progressive development of IL + codification of IL)
a. "The progressive development of Internationa Law"= term used to identify the preparation of draft commissions on subject that have not yet been codified (regulated) by International Law or in regard to which the law has not yet been sufficiently developed in the practice of States..."
LACKING COMPREHENSIVE REGULATION
b. "Codification of International Law"= term used to indicate the more precise formualtion and systematization of ruled of International Law in fields where there already has been extensive State practice, precedent and doctrine."
PRECISE FORMULATION AND ESTABLISHED RULES
33
International Law Commission
First permanent international body solely dedicated to the dual tasks of codifying and developing Interional Law and its mandate requires it to navigate the distinction between codification and progressive development. While these concepts are generally understood, the ILC's work often reveals the complezities in differentiating between the two.
PROBLEM: continous development of International Law.
ILC has allowed flexibility and responsiveness to contemporary issues, allowing it to produce relevant legal framework that reflect current international relations.
ILC HAS ALLOWED JUDICIAL BODIES TO INTERPRET AND CATEGORISE ITS WORKS.
34
UN codification practices (technical and political procedure)
The General Assembly refers to the ILC a proposal for the progressive development of International Law. In this case the Commission shall follow one of these two procedures:
1. TECHNICAL PROCEDURE:
the GA and States members hold initiative
a. special rapporteur: prepares a first written piece suggesting a new regulations for a legal field whose regulation has been entrusted to the special rapporteur-- the special rapportuer is entrusted by the GA
b. codification draft (first reading): the text that has been agreed upon by the Commission is presented before the GA; along with that they present papers expressing the purpose of, scope and rationale behind the treaty
c. states' comments-- ILC shall circulate a questionnaire to governments, and shall invite them to supply, within a fixed period of time, data and information relevant to items in the plan of work. The ILC then has the power to modify the draft according to States' suggestions
d. codification draft (second reading); two possible paths:
- General Assembly-- Convention. The ILC submits the final draft to the General Assembly, which may decide to adopt it as a formal international convention
- Multilateral Conference-- Convention. The draft may be discussed and adopted at a multilateral conference involving representatives from multiple states. This method had been used for major international agreements such as the Geneva Conventions on the Law of the Sea
2. POLITICAL PROCEDURE:
○ General Assembly path:
i. General Assembly: the GA tables proposes for codification
ii. Committee: the General Assembly may establish specialised committess to examine drafts on specific legal issues
iii. Codification Draft: the committee discusses the draft and suggests amendments
iv. General Assembly: the draft is then submitted to the General Assembly for further discussion, revision, and potential adoption as a convention. In this seating the States may amend the draft and reach political agreement. This procedure is indeed called "political" as States are free to give value to their interests and diplomatic relations and ultimately reach a common agreement
v. Convention: the GA, after the last examinations, may decide to adopt it as an international convention
35
Multilateral Conference Path
In some cases, states prefer to negotiate complex issues at a multilateral conference where all interested states participate. The conference elaborates on and negotiates the draft text, with room for diplomatic compromise on contentiuos issues.
i. representative of States negotiate the terms of the draft
ii. the finalized text is adopted at the conclusion of the conference as an international convention
iii. States then proceed to sign and retify the convention through their domestic legal process
Example: third UN conference on the Law of the Sea, which led to the adoption of the Montego Bay Convention on the Law of the Sea.
36
Vienna Convention, Article 7 (who can ratify treaties)
- a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers
- In virtue of their functions and without having to produce full powers, the following are considered as presenting their state: head of state, head of government and ministers for Foreign Affairs, fo the purpose of performing all acts relating to the conclusion of a treaty
- head of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited
- representatives accredited by States to an international conference or to an international organization or one of its organs...for the adoption of the treaty's text
37
Relation between domestic and international law (specifics about treaties and customs)
States must comply with international law; this means that domestic law must be compatible with the international legal system which does not issue specific norms (which might instead happen with treaties). States cannot invoke domestic law as justification for non-compliance to international obligations.
There are two different ways in which States can incorporate or recept the international legal system:
- monism: process through which international norms are automatically embodied by the domestic law system; foundations of domestic law= international law. In this way the two are considered to be part of the same legal system. International law prevails over domestic in case of conflict as the international law is part of the same legal system.
- dualism: domestic and international law are considered as two separated legal systems (Italy). The two have power in the corresponding field; international law needs further domestic legislation to have municipal effect
This systems do not provide for a hierarchy among international and domestic law and how IL is incorporated
Customary law is considered to be automatically incorporated by the municipal law without the need for an act of incorporation
INTERPRETATION:
- interpretation of national laws in conformity with a treaty or customary norms
- prevalence recognised to treaties as "lex specialis"
Article 10 of the Italian Constitution states that the domestic legal system conforms with the generally reognized principles of international law.
General international principles may be derogated uponby ordinary law in some countries, while in others it prevails over conflciting laws.
38
Concepts of self-executing norms (or treaties+ incorporation)
- formal: it indicates those self-executing norms that do not need a domestic act in order to be incorporated by the municipal law for it to be applicable. These norms are typically clear and specific in their wording and create enforceable rights or obligations immediately upon ratification or adoption without needing additional legislation. CLEAR, SPECIFIC, IMMEDIATELY APPLICABLE.
- clear language
- the latter brings to clear meaning, no interpretation
- directly applicable in legal proceedings
- uniform landscape of judgements as the content is clear
- substantial: self-executing norms that are precise enough and have all elements to promptly produce their legal effects within a State. Whenever this is not the case, they need more implementation. These norms may not be as clear or specific in their wording but can still be enforced directly due to their nature and the context in which they operate. They often require interpretation to determine their applicability but do not necessarily require additional legislation. NEED FURTHER INTERPRETATION, APPLICABILITY DEPENDS ON CONTEXT
- vague terms
- the latter brings to necessity of interpretations (can vary)
- might need domestic legislative implementation
- might produce inconsistencies in different judicial contexts due to ambiguity
There are different ways of "incorporating" international law, so to make the treaty being able to produce its legal effects even in national territory; two might be:
1. having a national act that establishes the same rules as the treaty; the content of the treaty is implemented by an act of the Parliament of the country
2. promulgating a law that authorizes the treaty's ratification and orders its accomplisment= system of reference: the law passed by the treaty references to the treaty
Rank of treaties: they are generally at the same level of the source used to incorporate them. However the actual rank depends on the country.
- US: they are part of the Supreme Law of the land
- France: streghented position prevailing over the acts of Parliament
- Italy: intermediate position between the Constitution and the acts of Parliament
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States as subjects of international law
Montevideo COnvention on the rights and duties of States, Article 1:
the State as a person of international law should possess the following qualifications:
- a permanent population
- a defined territory
- a government
- capacity to enter into relations with the other States
GOVERNMENT
it needs to be sovereign= exclusive control over its territorial community (supreme authority)
External sympthom of sovereignity= INDEPENDENCE: formal qualification meaning that the State does not depend on any other authority
Puppet State= fictitious "independent" State that actually fully depend on a another State
IL identifies States by the its government, not meant in a transitory way but as its institutions.
No government= no sovereignity= no supreme and complete territorial jurisdiction= no State
IL tends to prefer continuity in case of failed State: a State still exists even in temporal abscence of governamental bodies that either disappear or are not effective.
SOVEREIGNITY= EFFECTIVENESS OF THE STATE= capacity of carrying out all faculties typical of the State
Current IL tends to prevent the consolidation of effectiveness (of a new State) in violation of the fundamental principles of the prohibition of the use of force or of self-determination (jus cogens)
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Recognition of States
Recognition can be:
- declaratory: the State itself declares its independence and existence
- constitutive: recognition is an essential feature that builds the existence of a State= need for recognition of other States to become a State (what is the number of recognitions neeeded?)
International reality demonstrates that with supreme authority a State is born; constitutive makes little sense as it is based on political reasons
Recognition is more of an instrument to foster international relations, while it is not inherently constitutive, it is indispensable for the consolidation and EFFECTIVENESS of a State.
Entrance in the UN is basically a token of recognition; only requisite is to be a State.
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What is a treaty? (+ not written international agreements)
Treaty means an international agreement concluded between States in written form and goverened by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation
The Vienna Convention does not apply to international agreements not in written form, nonetheless this shall not affect:
- the legal force of such agreements
(they are binding);
- the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independentely of the Convention
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Charter of the United Nations, Article 102 (treaty registration)
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it
2. No party to any such treaty or international agreement which has not been registered in accordance with the provissions of paragraph I of this Article may invoke that treaty or agreement before any organ of the UN
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Solemn form of treaty procedure
1. negotiation: States' representatives discuss and draft the terms of the treaty
2. adoption: the final text of the treaty is adopted-- the parties formally agree on the content of the treaty
3. authentication: a process that ensures that the text is accurate and reflects the agreement reached during negotiations
4. signature: the treaty is signed by the authorizes representatives of the States involved-- it only indicates a preliminary endorsement of the treaty, but it does not create binding obligations yet
5. ratification: each State must go through its own international process to ratify the treaty, which often involes approval by the legislative bodies. Ratification is fundamental as it creates legally binding obligations
6. conclusion: formal completion of the treaty-making process-- once enough States have ratified, the treaty is considered concluded. Ratifications are either deposited or exchanged
7. Entry into force: once a predetermined number of ratifications is reached or on a specified date outlined in the treaty itself, the provisions of the treaty become legally binding
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Vienna Convention, Article 7
1. a person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
a. he produces appropriate full powrers
2. in virtue of their functions and without haing to produce full powers, the following are considered as representing their State:
a. head of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited
c. representatives accredited by States to an international conference or to an international oranization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ
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Vienna Convention, Article 18 (treaty refrain)
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
a. it has signed the treaty...until it shall have made its intention clear not to become a party to the treaty; or
b. it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed
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Ratification capability
The competence to ratify treaties is assigned by national law: normally, it belongs to the Head of State.
However, indemocratic States parliaments usually reserve for themselves an important role in the ratification process, at least in relation to certain categories of treaties
(in Italy the President of the Republic ratifies treaties; Article 80: the Houses authorise by law the ratification of international treaties which are of political nature, or which call for arbitration or legal settlements, or which entail changes to the national territory or financial burdens or changes to legislation
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Irrelevance of internal law, Article 27 and 46
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46
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Entry into force, Vienna Convention, Article 24
1. a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree
2. falling any such provisions or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States
3. when the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides
4. the provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text
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Vienna Convention, Article 25 (treaty's provisional effects)
1. a treaty or a part of a treaty is applied provisionally peending its entry into force if:
a. the treaty itself so provides; or
b. the negotiating States have in some other manner so agreed
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Distinction between contracting State and party
- contracting State= a State which has consented to be bound by the treaty, whether or not the treaty has entered into force
- party= a State which has consented to be bound by the treaty and for which the treaty is in force
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Agreements in simplified form (Article 12/13)
1. the consent of a State to be bound by a treaty is expressed by the signature of its representatives when:
a. the treaty provides that signature shall have that effect; or
b. it is otherwise established that the negotiating States were agreed that signature should have that effect; or
c. the intention of the State to give that effect to the signature appears from the full powers of its representatives or was expressed during the negotiation
2. the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:
a. the instruments provide that their exchange shall have that effect; or
b. it is otherwise established that those States were agreed that the exchange of instruments shall have that effect
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What shall the ICJ set disputes
Article 38, Statute of the ICJ
1. The Court, whose function is to decide in accordance with IL such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recohnized by the contesting States;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
e. the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
The article is useful to identify the sources of international law, but it is not a norm regulating the sources
Purpose= to direct international judges on how to decide a dispute in accordance with the law
Treaties are in the first place, not because they are source No.1, but because if a certain issue is regulated by a treaty, the treaty will govern the case
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General principles of law
Article 38 of the ICJ's Statute confirms that treaties and custom are the two main sources of IL
The reference to geenral principles of law was introduced to fill the gaps of customary and treaty law
General principles are principles common to most (domestic) legal systems, suitable to be transplanted into IL
They have been and are useful to regulate aspects not previously regulated by treaties and custom (e.g., principles of legal logic, international procedure, State liability for wrongful acts, international criminal law...)
Thanks to the judgements of international or national courts they may even become part of customary law
ILC: drafts conclusions on the identification of general principles of law
GENERAL PRINCIPLES OF LAW COMPRISE THOSE:
- that are derived from national legal systems;
to determine the existence and content of a general principle of law derived from national legal systems, it is necessary to ascertain:
a. the existence of a principle common to the various legal systems of the world;
b. its transposition to the international legal system
- that may be formed within the international legal system (e.g., sovereign equality of States, uti possidetis juris, principle of non-intervention in the internal affairs of antoher State...)
a. to determine the existence and content of a general principle of law that may be formed within the international legal system, it is necessary to ascertain that the community of nations has recognised the principles as intrinsic to the international legal system
b. paragraph 1 is without prejudice to the question of possible existence of other general principles of law formed within the international legal system
JUDGE MADE LAW: reference to general principles is often an instrument of judicial discretion and it can easily lead to judge made law
