Unit 2 Flashcards
What does sovereignty mean? Limits and acquisition of territorial sovereignty.
Sovereignty involves the complete and absolute jurisdiction that a State has over its territory and the people within it, this is in theory, since in practice, the States are subject to the limits of International Law. The limits of territorial sovereignty extend over the territorial sea and the airspace above the territory and territorial sea. In the past could be established over terra nullius by means of occupation, now the acquisition rests on the effective control exercised over a portion of land and the people and property therein. It has occurred that States take foreign territory in violation of fundamental principles such as the prohibition of the use of force and the right to self-determination of peoples, in this situation the State must release it and the others have the duty to not recognize its sovereignty, acts of government over that territory and not assist it in maintaining it.
What is jurisdiction?
Jurisdiction means both, the authority or power of the court to determine a dispute between parties as well as the territory over which the legal authority of a court extends. The State has exclusive jurisdiction over its territory to: prescribe, adjudicate and enforce. In principle, there can be exceptions in which a State exercises extraterritorial jurisdiction: when the offenses are committed in any territory of its jurisdiction, on board a ship or aircraft registered in that State, when the offender is a national, or when the victim is a national.
What is secession?
Designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. Today is admitted that, outside the context of decolonization and situations of military occupation, there is no “right” to create an independent state. In fact, is neither supported nor condemned by international law.
What are the immunities?
Are a consequence of sovereignty, certain subjects benefit from the exception of the jurisdiction (adjudicate)/prosecution of a State and can’t be taken before its courts.
State Immunity
Originally the States had absolute immunity, a foreign State lacked jurisdiction to bring it before a court since States are formally equal and there’s a prohibition of interference in domestic affairs. The principle of sovereign equality is one of the fundamentals of the international legal order.
Exceptions of immunity for a State
Under the restrictive theory, the immunity of States is relative and not absolute. In this theory, there are acts jure imprerii (exercise of governmental authority) and acts jure gestionis (performed by the State acting in a private capacity, in which the immunity doesn’t apply and its conduct can be brought to justice), the problem is to distinguish these two type of acts.
Act jure gestionis: if a State engages in a commercial transaction with a foreign person and the transaction falls within the jurisdiction of another State. In the case of the contract of employment, there’s immunity only if the employee has been recruited to perform functions in the exercise of governmental authority or he’s a diplomatic agent or enjoys diplomatic immunity.
In tort, immunity doesn’t apply.
For other international crimes there’s a debate, since the rules banning international crimes are jus cogens and thus prevail over the rule on immunity ( for acts jure imperii in this case), but immunity is a procedural (not substantial) rule that doesn’t interfere with jus cogens. But based at domestic level the right to access to Court it more important than the rule on immunity. In Italy, the Court of Cassation in the Ferrini case excluded the applicability of the rule concerning the immunity of a foreign state with regard to international core crimes, in the light of the importance of the human rights norms of a jus cogens character. (tort exception was not into force)
ENFORCEMENT OF JUDGMENTS?
Diplomatic and Consular immunities
Diplomants represent the sending State in the receiving one, and consuls protect the interest of the State and of its nationals, for this reason in order to protect their function and activities, enjoy privileges and immunities in the receiving State. Diplomat agents (head of mission, and others) shall be inviolable and the receiving State has the duty to protect them, also can’t be arrested or detained. In principle, they have immunity for criminal jurisdiction (exept in serious cases) and also from civil jurisdiction (unless s/he’s outside official functions).
There’s personal immunity and functional immunity. Personal immunity covers all the acts but ends when the mandate expires. Functional immunity only refer to acts related to the mission (not in private sphere) but doesn’t end, meaning that if kill someone as part of his mission, won’t be prosecuted after its mandate. Anyways, it’s their duty to respect local laws and not interfere in the internal affairs of the State, otherwise could become persona non grata and terminate their functions. The family and some other personnel enjoys also immunity and priviledges. In the case of heds of State/Government and Minister of Foreign Affairs enjoy civil and criminal jurisdiction when abroad.
Immunity for Serious crimes?
Although international crimes are considered be committed by leaders in a official capacity, functional immunity would not apply (Pinochet case), and they may be prosecuted and punished in other States.
Immunity of other States’ Organs?
State’s organs enjoy functional immunity (not personal).
It would appear that State agents committing crimes on foreign territory don’t enojoy immunity (Abu Omar case), but the extent of the exceptions to immunity aren’t clear (undercover agents). In the case of Enrica Lexie the marines had immunity in relation to their acts and India couldn’t excercise its jurisdiction over them.
Law of the sea
An exception to the exclusive jurisdiction
International Economic Law. Core areas, actors, legal sources and principles.
Regulates cross-border transactions in goods, services, and capital. Economic conduct by States, international organizations, and private actors. Series of rules binding (hard law) and emerging set of rules non-binding (soft law- guidelines of UN).
After the end of WWII, the Conference of Bretton Woods in 1944 set the first system of global economic governance with the (Bretton Woods Trinity) IMF, World Bank, and the GATT (WTO). Creation of the WTO (Uruguay Round 1994) in a context of market liberalism and promotion of foreign investments.
Modern IEO aims to activate market forces and private initiative by eliminating barriers to trade and the flow of capital and fostering a positive investment climate, higher living standards, and market liberalization (prevention of war) to achieve economic stability and growth.
Actors:
Subjects of IL (States and IOs) + transnational corporations, investors, NGOs, etc. which shape and influence the formulation of rules and standards.
Sources:
Customary, treaties, and general principles (restitution of unjust enrichment, good faith, make reparation…)
Principles:
1) Free to choose their economic and social system
2) Trade liberalization (reduction of tariffs)
3) Fair treatment of Foreign Investment
4) Non-discrimination (most favored nation and national treatment)
5) Favorable conditions for developing countries
6) Sustainable development
7) Respect for Human Rights
WTO came after multilateral trade negotiations, then States established easier agreements based on geographical proximity (preferential trade regimes-USMCA) and mega-regionalism (CPTPP).
International Investment Law. Scope and sources.
Regarding international investment law. the actors are the
1) home state (where the investor or company is registered)
2) Investor and
3) host state (where they’re investing).
Since investors are likely to distrust the legal system of the host country (bc it’s unfamiliar or not sufficiently developed) IIL rules mitigate political risk, safeguarding foreign investments against interference by the host state, and at the same time protecting the host state’s interests. Has no central treaty, but agreements (which are the main source), can be regulated by the WTO, there are more than 3200 bilateral investment treaties, and multilateral, and investment chapters in preferential trade agreements.
Human Rights Law. UN Declaration of Human Rights. Classification of Human Rights and instruments.
Traditional perspective: only recognized limits of individuals with regard to foreigners, and only the national State of that damaged individual could claim.
Modern perspective: after WWI the rights of minorities. But only after WWII, the role of individuals started to have relevance, human rights as well as right to self-determination emerged at the international law level. Reflected in the Charter of the UN and after in the UN Declaration of Human Rights, the first instrument that specified civil and political rights, as well as economic, social and cultural, however it was adopted as a resolution, it’s not a treaty, therefore, not binding (but customary law-binding in someway).
There are negative (abstain from commiting abuse-civil and political-right to life) and positive (require to take positive actions-social, economic and cultural-right to education) rights.
-Human Rights Commission- subsidiary of the Economic and Social Council.
-Human Rights Council- General Assembly
UNGA withh the help of the Human Rights Commission elaborated a set of international conventions, creating international guarantee mechanisms (committee of independent experts) with 3 functions: monitoring (states reports), enforcing (individual or interstates comunication/claims-this is not mandatory, they accept that competence) and interpreting (general comments).
European Convention on Human Rights (ECHR)
Adopted by the Council of Europe, which has as one of its core principles the enjoyment by all persons within its jurisdiction (nationality doesn’t matter) of human rights and fundamental freedoms. Is the first general treaty on human rights, and its international guarantee system has become entirely judicial, for this, it’s the most advanced instrument regarding HR. The judicial form of protection is by the European Court of Human Rights and functions on a permanent basis with binding jurisdiction on all the parties. States and individuals can directly apply to the Court, and the CoE’s Committee of Ministers monitors the execution of its judgments. However, the Court deals with the matter, only after all domestic remedies have been exhausted and within a period of 4 months after the final decision was taken. The ECHR only deals with negative rights, and positive rights have been protected by the European Social Charter. And imposes on States, negative (refrain from certain conduct-acts of torture) and positive (take all appropriate measures to prevent the abuse or prosecute and punish the author of the wrongful act) obligations.
