Horizontal approach: Horizontal elements that are common to many IOs
Vertical approach: study as many org. as possible
It is the law of the international community.
It was created by States with the Treaty of Westphalia 1648 (it coincides with the birth of States).
National level: National law and sovereignty, adressees of this law are individuals
- International law: branch of law that regulates the interactions among states, adressees of this law are the states= a body of rules created by States and it applies to States and international actors
- EU law
- lex mercatoria
- private int. law
States because they have full international legal personality
- Entities that have internal and external sovereignty.
- Internal sovereignty: territory, government and a population on which the State exercises its government
- External sovereignty: legal independence = formally not dependent on another State) (ex. capability to entertain relationships with other countries at the same level)
- Recognition
- It is an act through which States acknowledge the existence of another State
- For the declarative theory it is just an acknowledgement of an already existing situation (value of ackowledgement)?
- For the constitutive theory it is a requirement (constitutive value)
- Respect of the principle of autodetermination
- Protection of HR inside their territory
- Yes
- Limited in time and material scope
- they are merely passive and derived
- They influence it
- NGOs
- Insurgent or National Liberation Movements
- Because if a situation is acknowledged it can be controlled since int. actors have to respect international law
- It is sufficient that only one State recognises the movements
- IGOs
- For instrumetal reasons, to reach objectives
- By States
- NGOs as these are created by private actors, IGOs by States
- NGOs have limited international legal personality, they do not participate in the creation of International law and they are usually subjects of the national law of the country in which they were created.
- No
- 1) Rules adressed to States do affect the individuals (but they are not the subjects dirctly), 2) there are some Int. Treaties that acknowledge individuals like Charters of Fundamental Rights, 3) the individuals cannot demand that those rights are respected (some Charters allow them to sue States so this is not alway true)
- International criminal Law: Body of international law that allows to prosecute individuals that have committed serious crimes (terrorism, genocide).
- diplomatic
- juristictional
- Mainly through 1) the international court of justice (or similar courts like the EU or the international criminal court) or 2) international arbitration
- It's a jurisdictional body created within the UN
- Juristictional
- Consultative
- Yes
- The jurisdiction depends on a formal act of acceptance by both states
1) States can acccept the jurisdiction of the court just for a specific case, 2) States can present a general acceptance of jurisdiction not limited in time and a single case, 3) jurisditional clause in a treaty through which States accept the jurisdiction of the Court about of any dispute that might arise from the treaty to that state to the Court
Yes
- A unilateral statement made bya State when signing or ratifying a treaty, designed to exclude or modify the legal effect of specific provisions in their application to that State. Primarily used in multilateral treaties, reservations allow States to articipate without complying with every clause.
- This cannot be done with the essential provisions of a treaty
- 15 independent judges
- Elected by thee General Assembly and Security Council
- 9 years terms
- Just for the parties involved in the disputes that have accepted the jurisdictionof the Court
- Violations of IL committed by an international subject.
- No
- No
- Subjective element: violation must be attributable to a State
- Objective element: there must be a violation (also of omissive nature)
- consent of the damaged State
- self-defence
- force majeure
- distress
- necessity
- countermeasure
But even if is an exclusion of responsibility, the obligation to remedy the violation persists.
- IOs
- No, there are many elements in which the theoretical framework is not very well defined yet
1) legal personality of IOs, 2) tension between 2 competing concepts: interest of individual Statees and that of the Int. community
It dictates that IOs only possess the specific powers explicitly granted to them by the founding treaty
It holds that IOs possess powers not explicitly stated in their founding documents but deemed necessary to execute their express,enumerated powers and objectives
IOs were born because States (since they were born) needed cooperation, initially X temporary conferences then small institutions for very specific purposes:
- management of rivers
- org. created by private persons (ex. Red Cross)
Overtime, internationalization of relationships made it necessary to cooperate (especially for transport and communication)
Main breaktrhough after WW1 in 1919 with a new objective to create a stable Org. of states with not time limit (league of nations), after WW2 Org. started to multiply and grow esponentially and with time they started to emancipate from States a little bit, also thanks to globalization---> IO became essential to solve some issues that domestic law was not enough to solve anymore and reach global objectives not reachable through national law
- Voluntary assiociation of int. actors
- Created on the basis of a treaty
- Having distinct will from MS
- 3
- No
- Yes, unless the founding treaty says so
- No
- Usually but not always (ex. UNICEFF X resolution of GA of UN)
- No, 1) generally not subjects to reservations, 2) tend to prevail over all treaties existing among MS, 3) unique interpretation method
there must be at least an organ in the IO that is capable of taking decisions even if one of the MSs does not agree with that decision = ex. majority voting
Stability, summits and confeerences are created to solve speecific problems and have short time limits
- A resolution of the UN security council that endorsed for the creation of the BOP in order to continue the peace plan in Gaza X a stage 2
- No
- It has a Charter, association is voluntary (although it requires an invitation one can choose what to do with it)
- Made by States but also persons, has no distinct will from the US because the chairman controls all decisions
- He invites Members
- He is the chairman and also the representative for the US
- Principle of "one State one vote" but decisions are madee by majority with approval of the chairman
- Decisions of executive board require approval of chief executive that is chosen by the chairman
- The BOP dissolves if the chairman decides it's appropriate
- Bernadotte Case of 1949
- A UN mediator was killed in Palestine. The State of citizenship could have made a claim Vs the entity responsible but the UN wanted to do so as well and it was allowed for the first time putting the IO in the same level as States granting it legal personality. The GA asked for an advisory opinion since nothing on the Charter mentioned international claims and Israel was not a MS.
- ICJ was asked to give an advisory opinion and stated that: yes, the UN officially from that moment onan IGOand has int. legal personality making it possible for it to bring claims in its name and that of its employees.
The characteristics that an IO might have in order to be a subject of IL
1) Will theory: IOs only have int. legal personality because it was granted to them by the founding States through the founding treaty, not because of some characteristics of the IO
2) Objective theory: IOs have legal personality because of some characteristics that they have regardless of what he founding treaty might say.
3) Presumptive theory: a version of 2), as soon as the IO performs acts that only an int. actor can perform, it acquires int. legal personality (ex. present a legal claim or conclude an int. treaty)
- Since MSs ratify the foundiing treaty they automatically acknowledge that the IO has legal personality (sometims) through explicit provisions and integrate the IO in their national legal siystem.
- IOs have offices etc in MSs, so in practice they act within their domestic legal systems and use their national law to conclude contracts etc...
- "Blank cheque" formula: in the UN Charter states that the UN enjoy in the territory of each MSs such legal capacity as may be necssary for the exercise of its functions and the fulfillment of its purposes
- More detailed formula: in each of the MSs the EU shall enjoy the most extensive capacity accorded to legal persons under their laws
The IO cannot impose anything on them, the acknowledgment and the extent of their legal personality only depends on the third state's domestic law or on possible agreements between them and the IO.
The objective theory
The founding treaty
No
- The TEU and the TFEU (its founding treaties)
- The principle of attribution of competences
- No
- The IO has powers expressly stated in the treaties so the ones taht the MSs decided to confer to it. Any power not mentioned in the treaty remains in the hands of the MS
- EU
- A more flexible way to interpret treaties in order to attribute to the IO powers that are not expressly states in the treaty but are necessary to reach the IO's objectives
- 1) Restricted approach: starting from the written treaty where the powers are listed but it is interpreted in a broader way
2) Wilde approach: not starting from express powers in the treaty, the powers are attributed starting directly from objectves and functions of the IO
- UN
- It is an institutonalisation of implied powers, an explicit provision in the founding treaty that states that if an action is necessary to persue an objecive stated in the treaty butthe powers needed to reach it are not explicitly stated, theinstitution can activate this clause.
- The EU Commission makes a proposal and, with the consensus of the EU Parliament, the Council can act on the proposal and if there is unanimity the measures can be adopted.
1) Multilateral treaties between States are usually concluded for an indefinite period
2) It's more difficult to amend them because they are made to last and keep the IO stable
3) They can be interpreted differently
Yes
- Art. 20.3 states that reservations need to be compatible with the objectives of the treaty and that the reservations requires the acceptance of the competent organ of the IO
The European Court of Human Rights
No one, the UN Human Rights Committee wanted to acquire this competence but it was criticised by States because they wanted to be free and because it didn't have the power to take biinding decisions
- They should appoint an organ capable to decide on the topic
- Not really
- It's hard to make them because the functioning of the IO could become fragmented
- No
- The EU that has opt-out procedures
- Alternative devices to resevations that enable different degrees of integration that allow MSs to not participate in certain policies
- EU
- No
- No, because they have to be stable
- They are made to last overtime so they need to be flexible
- 1) Majority: easier to amend traties so it makes themmore flexible but less stable and it undermines the soverignty of States
2) Unanimity: harder to amend which makes IOs more stable and values the sovereignty of States but also makes IOs more rigid
- It depends on the IO
- By the founding treaty
Vienna Convention
Art.40: they do not apply for MS that decide to not be part of the amending agreement (unless the treaty provides otherwise) because generally it's not possible for a State to be attributd obbligations without its consent. Any amendment must be notified to MSs that all have to be part of the amendment process.
- The EU has to adopt a new treaty which must be ratified by unanimity
- Art.48
- The Charter provides for majority
- The Charter distinguishes between:
1) simple amendments:smaller codifications. Must be approved by 2/3 of te GA and ratified by 2/3 of UN members includng the permanent members of the SC (qualified majority).
2) general revisions: new Charter. The percentages of majority are the same but a general conference must be organised.
-Art. 108-109
Withdrawal
- Vienna Convention on the Law of the Treaties
- Art. 56
- When a treaty does not provide a withdrawal clause, it's not subject to withdrawal
- Pacta sunt servanda
- 1) When the withdrawal cluse is not explicit but can be established to have been the intention of the drafters
2) When it's implied in the nature of the agreement
The Charter does not provide for a withdrawal provision but it was established that withdrawal is inherent to the nature of the agreement, so it's possible
Art. 50, provides for withdrawl very clearly also stating the related procedure. A State that wants to withdraw must notify the Council, then there is a negociation stage to adopt a withdrawal treaty.
- An agreement that tries to organise the exit of a MS from the EU
- Because the EU has an enormous integrated body of law which interests a lot of private subjects. A "hard exit" from one day to another, would mean tha EU laws suddently don't apply anymore which would be detrimenal for private relationships and legal certainty.
- Hard exit of the country
- The general rule is that a treaty must be interpreted in GOOD FAITH and in accordance with the ORDINARY MEANING to be given to the terms of the treaty, considering the CONTEXT and its OBJECTS and PURPUSES.
- Art.31
- It comprehends the ENTIRE TEXT of the treaty, any PARALLEL INSTRUMENT or AGREEMENT related to it concluded by the parties
- 1) Art. 31(3): the parties can look at any other SUBSEQUENT AGREEMENTS OR PRACTICE in the application of the treaty concluded.
2) Art. 32: SUPPLEMENTARY MEANS OF INTERPRETATION (ex. preparating works of the treaty, circumstances of its conclusion), that can be used only to SUSTAIN the LITERAL INTERPRETATION or if the latter is not useful.
- the conduct by parties after a treaty is concluded which demonstrates their common agreement on its interpretation.
- Art. 5
- If there are specific provisions regarding the interpretation in the constituent document, they prevail on the other means. In fact, the founding treaty of an IO could even appoint a specific organ which should have the last word on the interpretation (ex. ICJ in the UN).
- ICJ was asked by the GA to give an advisory opinion on the provision concerning the admission of new states in the UN. It was made a proposal by the Soviet Union to admit groups of states all at the same time. By doing so the USSR basically tries to create a new condition for the admission of States which was not provided by the Charter.
- Art. 4
- For an admission, it’s necessary to have the majority both in the General Assembly and the recommendation
of the Security Council.
- That the literary interpretation of art.4 was straightforward, it was unnecessary to question it or use supplementary means of interpretation.
- Problems in the Security Council to find an agreement on the admission of new members, because
every time a permanent member was always voting no (USA Vs USSR). The GA asked to the ICJ if it, alone, could the decide on the admission of new members in case the SC wasn’t able to reach consensus. This was justified by the purpose of the UN, which was to add as many states as possible, and this purpose was more important than the literary interpretation of the Charter.
- The ICJ, again, said that the art. 4 was clear enough.
- Membership in the United Nations is open to all other PEACE-LOVING STATES which ACCEPT OBLIGATIONS OF THE CHARTER and, in the judgment of the Organization, are able and willing to carry them out. The admission of
any such state to membership in the United Nations will be EFFECTED BY THE DECISION of the GA upon the
RECCOMENDATION of the SC.
- Art.4
- MSs must respect EU values and the Copenhagen criteria (so founding treaty + other policies)
- Art. 49 TEU
- Decided UNANIMOUSLY by the COUNCIL, having CONSULTED the COMMISSION and having received the ASSENT of the PALIAMENT
- Customary law is not clear
- Not ideal, lacks consent of both parties
- Tabula rasa: new state is not bound by old agreements
1) Founding from MSs: founding treaties provides some obligations for finances
2) Independent resources: engaging in activity that enable them to collect their own money
3) Voluntary contribution: from public/private bodies or private persons
- Founding treaty
- Budget is usually prepared by the administrative organ and is usually approved by a plenary body
1) Organizational existence (places, people, structures, resources)
2) Operational expenses
- It follows the ordinary procedure
- It’s negotiated yearly within the Parliament and the Council
- No, it has two
- 1 year and 7 years
- Is defined by a Council Regulation that needs unanimity
- Yes and yes
- Contributions of MSs (2/3), BUT not all states pay the same
- Direct resources: custom duties (11%), VAT-based own resources (11%), contribution from MSs and private entities related to non-recycled plastic packages waste.
- No
- Gross national income
- Art. 311 of TFEU, that also says that the EU can add new resources or abolish the existing ones
Multi-annual financial framework
- No, just a yearly one
- GA
- 1) Regular budget: largest share, produced from mendatory contributions of MSs, covers the budget of the six principal UN organs and programmes and funds
2) Smaller separate budgets: ex. for peacekeeping operations or for international tribunals
3) Non-assessed budgets for humanitarian and development agencies: voluntary contribution
- Gifts, donations and sponsoring of conferences
- Art. 17 of UN Charter
- GA through a contribution committee decides the contribution of each MS using the “scale of assessment principle”
- Gross national income, national per capita income and general level of development
- Evaluated every three years
- The minimum rate is 0.001% and the maximum is 22%
- To guarantee the independence of UN
-The Secretary General of the UN prepares a draft budget, which is then approved by the General Assembly with a majority of 2/3, in December of each year.
- SC
- Yes
- The Charter does not have effective enforcement mechanisms that force the members to pay
- No
- Art. 19: if a MS failes to pay for two years, it will have no vote in the General Assembly.
- Yes, if the State couldn't pay because of reasons beyond the will of that State, for example after natural disasters the GA might keep that in mind and not remove the States's voting power.
- It's debated but the main answer is: it's an automatic but the GA can decide to stop it
- No
- There are only 15 MS, among which 5 are permanent so thier suspension would cause a paralysis of the organ
1) Withdrawal from the UN, but it’s unlikely
2) Wielding its veto in the Security Council and halting payments of its assessed contributions.
3) Putting the payments on hold indefinitely
- In 1960, SC was reluctant to vote in favour of peacekeeping operations, and the GA decided to take advantage of it and authorized peacekeeping operations (Middle East and Congo), which was not in its power to do. Later, some permanent members of the SC contested these operations and refused to pay for them, and the General Assembly asked an advisory opinion to the ICJ in 1962.
-Are peacekeeping operations valid expenses of the UN for the purpose of art. 17?
- Yes, the purpose of the organization is the maintenance of peace and security sothere operations cannot be excluded a priori. That is why a comptibility test between these operations and the broad purposes of the UN was introduced, in order to assess the legitimacy of the expenses
-Yes
- Institutions
- Organs
- Organs
1) plenary body
2) executive body
3) administrative body
4) others
- It's the one that sets the common standard and takes the decisions (through majority). All MS have representatives that meet in regular intervals.
- Parliament, Eu. Council and Council of the EU that check and balance eachother
- GA
- Fast acting, operative organ generally based on the iea of representation which takes the (binding) decisions--->should be smaller organs in which only some of the members are represented, in order to reflect the composition of the whole organisation
- Commission
- SC
- Body that administers day to day administrative activities. It may also have relevant political functions as sometimes it assumes a proactive role especially in external relations of the organization
- EU Commission
- UN Secretariat
Judicial bodies, parliamentary bodies/assemblies, committees and comitology
- Yes
- Vienna Convention on the Law of Treaties with or between IOs of 1986
- Codification treaty not entered into force
- 1) LEGAL PERSONALITY --> It derives from international law which gives the CAPACITY to act in the int. community and therefor conclude int. treaties
2) LEGITIMISATION BY MSs --> It derives from the founding treaty (and the doctrine of implied powers) which gives the COMPETENCE to conclude treaties
- Yes, unlike States they have to follow the rules of the organization
1) SC: with one or a group of MS after negotiations and upon request of the SC for military support from them and after each MS has approved the agreeent using their own constitutional process
2) ECOSOC: with other IOs to bring them in relations with the UN (=relationship agreements)
3) GA: with MSs for the establishment of headquarters in the territory of a State (=headquarter agreements) which often contain other agreements (= immunity agreements) that establish the immunity and the other privileges of UN representatives and UN MSs' representatives
- Art. 216 TFEU, which is very broad
- It attributes general treaty-making powers to the organization where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve one of the objectives referred to in the Treaties.
+ agreements concluded by the Union are binding upon the institutions of the EU and on its MSs
- 1) Art. 207 TFEU = trade agreements
2) Art. 198 TFEU = association agreement with non-EU countries
- Yes
- 1) Informal agreements: non-binding, to state some preconditions to membership (ex. already being part of another IO)
2) All sort of relationships between universal and regional IOs interact
3) Membership of IOs in other IOs
4) Observer status
5) Joint programmes
6) Joint ventures
7) Diplomatic relations (active and passive)
