Intl Public Law real legal system

Intl community is composed of sovereign states and intl governmental organizations (basically of all parties acting in intl relations)

14.10.2011 Characteristics of intl community (IC sovereign states /196 + Palestine/ and intergovernmental organizations) in total ~300: 1) IC is composed of low no. of members (Legal person artificial legal creations (church, government, organizations, associations, companies, universities, (high number eg. in Poland) 2) Principle of equality within the IC (subjects within the community are equal, principal one state one vote /e.g. at the General Assembly of the UN/, Security Council a permanent body of the United Nations seeking to maintain peace and security. It consists of fifteen members, of which five (China, France, Russia, the UK, and the U.S.) are permanent and have the power of veto. The other members are elected for two-year terms. (Principal of equality doesnt hold).

In the EU the states arent equal either. (European Parliament (no. of seats depends on the member states population) + Council of European Union = cooperate in the process of decision making). Because of its very specific nature not a regular intl organization. *Montenegro, Macedonia, Croatia, Turkey, Iceland (to-be EU member states) 3) Low degree of organization of IC (no mandatory courts, nobody is forced to join any conventions according to which it would fall under the authority of an intl court), executor/collector in the intl community states themselves execute the law e.g. Gulf Storm operation some countries took part some did not, interaction of the intl community is pretty much voluntary, in most cases countries need an agenda to get involved. -no centralized system of enforcement of the intl law, no mandatory courts (jurisdiction) Intl Court of Justice (Hague) European Court of Justice (Lux) European Court of Human Rights (Strasbourg) organ of the Council of Europe - European Convention of Human Rights member only can be sued against (e.g. Belarus is not so they would have to agree first) WTO (functions as a dispute settlement body, hears cases related to trade issues mostly) Intl Tribunal of the Law of the Sea (ITLOS, Hamburg)

21.10.2011 Council of Europe separate organization (seat in Strasbourg) political cooperation for maintaining peace, What is the intl law? System of norms binding upon the subjects of international community

Ius gentium (lat.) law of nations (for the Roman Empire) vs. ius civilis (lat.) law of the citizens of the state of Rome only Jeremy Bentham used the term ius gentium in modern times

Nation vs state ? Nations w/out states e.g. Palestinians, Gypsies (nation or an ethnic minority?) International law or interstate law? 2 contradictory principles of international law self-determination (states have the right to declare themselves), state integrality (the right to remain 1 single state). traditionally its been called international b/c members of intl community arent only states

Classical theory of nations (common history, language, customs, dominant religion etc.) Modern theory of nations (creating a nation is a process e.g. USA) How is intl law arranged/systematized? De iure belli ac pacis about the law of war and peace (1625 by Hugo de Groot) (1. When the war is justified? 2. What means can you use when you conduct the war?) It systematized intl into 2 parts. This distinction is no longer used in intl law. Ius ad bellum right to war (self defense) Ius in bello right in war how to conduct the war, what means can be used and to what extent Law of peace? Is intl law a real legal system? Sanctions are different for not obeying the law, and not obeying some religious norms etc. Communitas gentium ~ norms of kindness HOMEWORK

Find and critically reflect on What is good faith = honesty of intention, relates to the intention of a person regardless of the outcome of an action What does it mean to act in good faith? What is bad faith = intent to deceive Nation or territory considered as an organized political community under one government

4.11.2011 Heinrich G.W. Hagel J. Austin negators of intl law (intl law is not law) Not only law determines our conduct. Theres state authority behind legal norms! Sanctions in the intl community exist. Sanctions in public intl law: a) Organized Organizational (stem out from the membership in a intl organization e.g. members have to follow the rules of intl organizations otherwise they can be fined or expelled) Corrective

Use of force (~military force, threat of use of military force is generally forbidden except from the Security Council) b) Unorganized Psychological (psychological pressure put on a state, e.g. Lisbon Treaty last state to ratify was the Czech Rep in the end they were pressured to do so) Counter measures (actions taken by states themselves)

Retortion (unfriendly actions but they do not constitute the breach of law suspension, breach of diplomatic relations/expulsion of diplomats/ Reprisal = an act of retaliation (constitute a breach of law, reaction must be proportionate) They should be propocionate Iudex in causa sua judge in own case

Right of talion an eye for an eye International Law Domestic Law (the relation between those 2 is usually regulated by the constitution. E.g. Monistic model (one legal system Hans Kelsen, there must be a hierarchy where intl law is at the top) Dualistic model (Heinrich Trie..l - intl and domestic laws are two completely different systems and they never communicate)

SOURCES OF INTERNATIONAL LAW Division of sources of law a) Creation (fontes juris oriundi) Material sources (determine the content of the law) protect the trees

Formal sources (usually have a form e.g. statute, constitution, decision, directive etc. form of the law determines its position in the hierarchy) statue on the protection of the environment b) Recognition (fontes juris cognoscendi) official (official Journals where the content of laws can be found) unofficial (media, tv, friends)

Theres no constitution or hierarchy in the intl law Statute of the ICJ deals with cases of states Art 38. c) general principles of law recognized by civilized nations (see: document)

Art. 2 definition of a Treaty Categories of treaties in intl law: According to the no. of the parties: a) bilateral b) multilateral According to the subject of treaties: a) treaties regulating human rights

b) environmental protection c) responsibility

d) trade e) f) g) investment labor many more

According to the criteria of accession a) Closed (once concluded no state can access them anymore=those treaties, e.g. peace treaties) b) Open (potentially open to all states, e.g. Art. 4 of UN Charter) c) Semiclosed (open just to certain categories of states predefined- only some states can take part e.g. Treaty on EU) EU democracy, respect for freedom, human right, rule of law (public organs are subject), geographically some part should belong to Europe, legal criterion (the state has to implement acquis communautaire (all legal regulation stemming out from the EU law) b/c of geographic criterion EU is a semi open

9.12.2011 How a typical treaty is constructed? Usually 2 authentic linguistic versions, when its signed both countries receive 2 copies Poland receives Polish-German treaty and Germany receives German-Polish PRINCIPLE OF ALTERNATE (b/c of the principle of equality) Title (can indicate the parties to the treaty, esp. in case of bilateral treaties) Invocation (rare, appears in treaties between Islamic states) Intitulation (Heads of states are mentioned here) Preamble (values, general objectives of the document, historical background explained reasons) Narration (description of the procedure and of some procedural steps taken during the process of the conclusion of a treaty/constitution.., nomination/designation of plenipotentiaries hold full power to act on behalf of the government,) Disposition (main part of the treaty, define rights and obligations of the parties)

Preceded by: WHO, having exchanged their full powers, found in good and due form, have agreed as follows (end of the narration) (Rights and obligations of the states substantive provisions e.g. Art. A to establish EU close and consistent cooperation between the member states) Art. S is a formal provision, not a substantive one. Formal provisions do not regulate rights and obligations of the states, they are rather related to the binding force of the treaty, e.g. regarding authentic linguistic versions, where the original texts are deposited etc. Corroboration (strengthening, a formula that emphasizes the fact of the conclusion of the treaty, a confirmation) The conclusion of international treaties To conclude any contract there must be: At least 2 parties demonstrating the will in accordance with each other (i) (ii) (iii) A will of at least two states in accordance with each other Procedure of the conclusion of intl treaties is much more complicated. There are several procedural steps that must be taken:

Negotiations (state reps negotiate for their states, its important to choose the right person for negotiations document p. 30) Adoption of the text. (Plenipotentiaries initial the text, pele-mele order in which state officials initial the text randomly) Signing the treaty (very often by the Heads of the States, not enough for the treaty to enter into force) Ratification (final yes in the process, ratum habeo to confirm, who ratifies the treaty depends on the state in the US 2/3 majority of the Senate, Poland President, BUT before the President ratifies the treaty in some cases there must be an agreement from the Parliament or the citizens (referendum). Exchange of ratification documents was the moment the treaty went into force. Nowadays the treaty regulates the exact date when it enters into force. Entry into force.

15.12.2011 The Depositary of the International Treaty (function) keeps a custody of an object, a trustee, keep the custody of the original text of the treaty. ART. 76 (p. 59)

Depositaries of treaties: The designation of the depositary of a treaty may be made by the negotiating States, either in the treaty itself or in some other manner. The depositary may be one or more States, an international organization or the chief administrative officer of the organization. Functions of depositaries (Art. 77 p. 59) keeping custody of the text

preparing certified copies, preparing texts in additional languages, transmitting them to parties involved receiving signatures, any actions related to treaties states have to run through the depositary

informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited registering the treaty at the secretariat of the UN, otherwise the treaty cannot be enforced before any UN organ (e.g. ICJ the most important court in the intl public law) Typical clauses (one of the key provisions) that can be found in treaties: The Ratification clause (the treaty HAS to be ratified to enter into force), if it doesnt have a ratification clause its enough to just sign it. Arbitration clause provides the means of dispute settlement methods related to the treaty (where to go in case of a dispute) Reciprocity clause clause that guarantees same treatment, rights and obligations between the parties involved in this particular treaty. National treatment clause a state has to treat foreign goods, citizens etc. in the same way it treats its domestic ones (kind of a non-discrimination clause). Frequent in trade agreements the application of e.g. same tax rates or procedures. Most favored nation clause guarantees a state an application of any further going privileges guaranteed to the third state to a state party to a treaty. (ex. 2 states A and B enter into a trading treaty and apply 10% customs duty with MFN clause. Then B enters into a contract with C applying 5% duty C will have an easier access to B) How do treaties cease to exist? Invalidity, Termination and Suspension of treaties Invalidity vs. termination Treaty is invalid ex tunc (from then, from the moment it was concluded): Absolute invalidity (even a third state can invoke it, may not be convalidated, art. 51-53, p. 48)

Relative invalidity (only a state party to a treaty may invoke it, treaty may be convalidated to fix, cure the treaty, to declare it valid even though theres a premise of invalidity in case) Treaty is terminated ex nunc (from now on)