International Law I

8/9/2019 International Law I

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INTERNATIONAL LAW

International law: is a branch of law that primarily regulates inter-state relations

horizontal regulation: states create international law and are subjected to it at the

same time x domestic law (vertical order)

UN Charter (1945): its the foundational treaty of the United Nations, ratified by 193

countries, it establishes its principal organs : a General Assembly, a Security Council, an

Economic and Social Council, a Trusteeship Council, an International Court of Justice

and a Secretariat, and it's focused on the protection of international peace and

security:

Prohibition of the threat and use of force

Pacific settlement of disputes

Full (formal) sovereign equality

Peoples right to self-determination

Importance of human rights

Comparison of domestic and international law

Domestica Law International law

vertical legal regulation (courts have jurisdiction) horizontal legal regulation

subject and legislator are separate subject and legislator are the same: the state

numerous legal subjects small number of legal subjects

centralized with separation of powers not centralized and no separation of powers

grave violation of law is frequent grave violation of law is exceptionaleasy to create or change law difficult to create or change law: it depends on all states

Subjects of international law

1) States

2) International organizations: NGOs, multinational corporations

3) Individual in specific situations: international criminal law/human rights

4) Special subjects: national liberation movements, insurgents

Sources of international law(Statute of the International Court of Justice)1) international conventions: treaties, whether general or particular, establishing

rules expressly recognized by the contesting States;

2) international custom: is evidence of general practice accepted as law;

3) general principles of law recognized by civilized nations;

4) judicial decisions and the teachings (subject to provisions of Article 59)of the

most qualified publicists of the various nations, as subsidiary means for the

determination of rules of law.


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INTERNATIONAL CUSTOMARY LAW

Objective (material element): state practice, that is, repeated conduct of

States, based on constitutions, legislation, administrative regulations,

government policies, case law of national tribunals; international level: treaties,

resolutions of international organizations, diplomatic correspondence, etc.;

Subjective (psychological element): opinio iuris sive necessitatis convictionof states that their conduct is legal, but only if it's evidence of a general practice

or accepted as law.

Modalities of State practice: whatever its sources, the practice must have 2

characteristics to be able to support the formation of a rule of customary law:

1) Constant and uniform usage: repetition is required, although the duration of a

practice is no longer a decisive criterion for the purpose of creating a

customary norm; a certain degree of flexibility is allowed (virtually uniform);

2)

Generality of practice: it must be widespread and representative, it has cover a

huge number of states, including states whose interests are specially affected;

Opinio iuris: a consistent and general practice is not sufficient to create international

custom, the most decisive constitutive element is not material but psychological, it

relies on the conviction to be bound by such a norm (opinio iuris sive necessitatis),

that is, the practice must be accompanied by the belief of States that their conduct is

obligatory as law.

Protest, acquiescence and change

Acquiescenceis equal to tacit recognition manifested by unilateral conduct which the

other party may interpret as consent when it comes to creation of new customary

rules.

Protest: States may protest for different reasons:

Persistent objector: when a state consistently and openly objects to it, so the

norm can apply to other states, but it won't apply to the state that objected to

it in its formative stages.

Subsequent objector: when a state refuses to be bound by customary

international law after it comes into force; in this case, the state continues to

be bound by the customary law. If a number of states agree to the deviation

then these states could create another customary law rule, either as a local

custom or, if a sufficient number of affected states participate, a general

custom.

GENERAL PRINCIPLES OF LAW (RECOGNIZED BY CIVILIZED NATIONS)

General principles of fairness and justice which are applied universally in legal systems

around the world, such as good faith (bona fides), res judicata (the principle that afinal judgment of a competent court is conclusive upon the parties in any subsequent


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litigation involving the same cause of action), compensation (indemnity) and the

impartiality of judges. International tribunals rely on these principles when they

cannot find authority in other sources of international law.

Ius cogens (peremptory norm): is a norm accepted and recognized by the

international community from which no derogation is allowed and which can

be modified only by a subsequent norm of general international law having thesame character (human rights);

Erga omnes (towards everyone):a law that applies to the entire international

community (person or state), such as prohibition against genocide, torture,

slavery, aggression, piracy, child labor, racial discrimination, and in support of

right to self-determination, humanitarian rules.

RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS (TREATIES)

UN General Assembly resolutions might be evidence of custom if (i) predominant

majority of states - including states whose interest are specially affected, (ii)

repeatedly, (iii) adopt it with the same content. The SC resolutions are binding if

adopted with reference to breach or threat to peace or aggression.

Soft law: they are guiding principles, commitments (UN resolutions, declarations, etc.)

made by negotiating parties that are not legally binding, but they might be important

for the development of international law (e.g. international environmental law). There

are two types:

Non-binding terms in a binding treaty: "The parties will endeavor...", "attempt";

Apparently binding language but the parties only wanted a political agreement.

Relationship between international law and national law

Dualism: international law and domestic law are separate legal orders, cannot

overrule each other Adaptation: international legal rules become domestic

norms through transformation, they have to be translated into national law;

Monism: international law and domestic law are one single legal system

Incorporation: international law is automatically part of the law of the land.

Criteria of Statehoodconditions for the creation of a state

Based on the Montevideo convention in 1933, a State as a person of international law

should possess the following qualifications:

1) a permanent population: no minimum population required;

2) a defined territory: no need to define extension or fix borders;

3) a government: constitutional, political and stable structure, which takes

effective control of the territory;

4) independence / capacity to enter into relations with the other States.

However, not all the conditions are necessary.


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Creation of states

Its regulated by social political reality and phenomena, and is partly regulated by

international law. There is no need for recognition by other states . The UN doesnt

recognize a state if its creation violates international law, thus it has to be achieved

only by peaceful means. A few legal norms (3 ius cogens norms) apply to the creation

and acquisition of states:1) right to self-determination;

2) prohibition of use of force to annex territories;

3) inviolability of borders: changing borders by force is forbidden (Wall in Gaza).

In the past

Occupation of terra nullius (land belonging to no one): territory which has

never been subject to the sovereignty of any state (BIH, Anschluss);

Annexation: using force (Germany annexed Austria).

Modern cases (only through peaceful means)

Decolonization: Latin-America, Africa, India exercise of the right to self-

determination;

Dismemberment of existing State: existing states that were split into more

than one state Soviet Union to Russian Federation; Yugoslavia into Croatia,

Slovenia, Bosnia and Herzegovina, Montenegro, Serbia;

Secession (withdrawing from a territory): when part of a territory gets

independence Belgium (1830) from the Netherlands, Bangladesh from

Pakistan.

Union (merger of existing States): joined nations to form a new national

identity German Democratic Republic (GDR) + Federal Republic of Germany

(FRG) = FRG; Tanganyika + Zanzibar = Tanzania; Egypt + Syria = UAR (1958-

1961), not recognized by the UN;

Partial cession of territory: when there are two neighboring states, and one

state gives part of its territory to another one; Alaska sold to the US from

Russia, Louisiana from France, Hawaii;

Self-determination

Its the right of a people of an existing State to choose freely, without external

interference, their own political system and to pursue their own economic, social, and

cultural development.

People: some level of ethnic homogeneity or social entity possessing a clear identity

and its own characteristics. A people should not be confused with ethnic, religious or

linguistic minorities.


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Sources of Self-Determinationadopted by the General Assembly

UN Charter Articles 1 and 55: Recognized as a rule of customary

international law, as a human right;

ICCPR (International Covenant on Civil and Political Rights, 1966) Article 1

monitored by the UN Human Rights Committeeits compliance is ensured by

the UNHRC (subsidiary organ of the GA); civil and political rights ofindividuals (the right to life, freedom of religion, freedom of speech, freedom of

assembly, self-determination, minority/indigenous rights);

ICESCR (International Covenant on Economic, Social and Cultural Rights, 1966)

Article 1 monitored by the Committee on Economic, Social and Cultural

Rights (CESCR) under ECOSOCeconomic, social, and cultural rights (the right

to labor, health, education, an adequate standard of living);

Several UNGA resolutions;

Art. 1 (one and the same for all covenants): All peoples have the right of self-

determination. By virtue of that right they freely determine their political status and

freely pursue their economic, social and cultural development.

Requirements for self-determination

1970 UNGA Declaration on the friendly relations between States [2625(XXV)]:

Self-determination may not be employed to "dismember or impair...the territorial

integrity or political unity of sovereign and independent States conducting themselves

in compliance with the principle of equal rights and self-determination of peoples...and

thus possessed of a government representing the whole people belonging to the

territory";

Non-self governing territories are entitled: Western Sahara, some dependent

territories of former colonial powers;

Consequences of Self-Government (UNGA resolutions) means of achieving self-

determination (the formation of a state through):

1) Secession: emergence of a sovereign and independent State;

2) Association with other groups in a federal state: "should be the result of a free

and voluntary choice by the peoples of the territory concerned, expressed

through informed and democratic processes";

3) Autonomy or assimilation in a unitary state: should "be the result of the freely

expressed wishes of the territory's peoples their wishes having been

expressed through informed and democratic processes, impartially conducted

and based on universal adult suffrage.

State succession

Succession of States means the replacement of one State by another in the

responsibility for the international relations of territory. Examples: Yugoslavia, SovietUnion (Baltic states).


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Sources of law

2 Vienna Conventions:

o 1978 - Vienna Convention on Succession of States in Respect of Treaties,

in force since 1996;

o 1983 - Vienna Convention on Succession of States in respect of State

Property, Archives and Debts, not yet in force; Customary International Law.

Problems of State succession

Treaties: decolonized/newly independent states are under the doctrine of

clean slate (tabula rasa), thus they dont have to continue the treaties

obligations, whereas all other new states remain bound by the treaty

obligations of the state from which they separated;

Public Debt: the general rule is that the new state still has the public debt /

dirty debts. However, sometimes the dirty debts remain with the predecessor

state.

State Property:physical monuments are impossible to move and are generally

ceded to the successor (unless cultural heritage or similar cases); the movable

archives are split;

Public Law Claims: generally accepted that the successor state has a right to

take up fiscal claims belonging to former state (collecting taxes);

Nationality:new people acquire the nationality of the successor state; if people

move to the neighboring state, they can acquire the other states nationality

(Hungarys original territory);

o UN Charter:the change of sovereignty does not give the new sovereign

state the right to dispose of (get rid of) the population;

o Human Rights Perspective: to prevent statelessness, nationality shall be

given by the new sovereign state;

General Provisions

Even clean slate states are still bound by General International Law, like

Convention on the High Seas

Territorial regimes are not affected

Must conform to Boundary Treaties, even if treaty ceases to exist

Must conform with existing principles of Jus Cogens

Fundamental rights and duties of States

No legally binding document on the issue, but itspart of international customary law.

Rights

Right to independence;

Right to equality in law: despite the economic and social inequalities;

Right to exercise jurisdiction over territory, persons and things;


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Right to self-defense: individual or collective self-defense (NATO, article 5);

Duties

Duty to refrain from the intervention of internal affairs of other states;

Duty to treat persons under its jurisdiction with respect with human rights and

without discrimination (nationals, foreigners, migrants, refugees, etc.); Duty to carry out in good faith the obligations from treaties and other sources of

international law: Pacta sunt servanda

Concept of sovereignty: under international law sovereignty means that only states possess

sovereignty, entities, liberations movements do not.Proof of sovereignty: a country can sign

treaties, enter international organizations, etc., it has exclusive jurisdiction of persons and

things.

The principle of sovereign equality of States (UN Charter)

All States enjoy sovereign equality. They have equal rights and duties and are equal

members of the international community, notwithstanding differences of an economic,

social, political or other nature. In particular, sovereign equality includes the following

elements:

States arejudicially equal;

Each State enjoys the rights inherent in full sovereignty;

Each State has the duty to respect the personality of other States;

The territorial integrity and political independence of the State are inviolable;

Each State has the right freely to choose and develop its political, social, economic

and cultural systems;

Each State has the duty to comply fully and in good faith with its international

obligations and to live in peacewith other States.

Recognition of States and Governments2 different views

Declaration theory (view tacitly accepted by the International Court): recognition is

a declaration of an existing state of law and fact, legal personality having been

conferred previously by operation of law (if it fulfills the four elements of the

Montevideo conventions);

Constitutive theory: even if the requirements of Montevideo convention are

followed, it is not enough for a state to exist; a state existence depends on the

political decision of other states.

Premature recognition (in statu nascendi): a state is recognized by other countries before it

fulfills the criteria of statehood. Example: Bosnia-Herzegovina and Croatia.

Late recognition: after years of creation. Example: Israel.


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Recognition of governments

De iure recognition: permanent and legal recognition all kind of relations are

established, diplomatic relations, conclusion of bilateral treaties, etc.

De facto recognition: temporary recognition, not legal, when a government hasnt

acquired sufficient stability;

STATE RESPONSIBILITY

The laws of state responsibility are the principles governing when and how a state is

held responsible for a breach of an international obligation, thus, they determine when

an obligation has been breached and the legal consequences of that violation. The

State is supposed to ensure compliance with legal norms (necessary corollary of every

right). Link:http://legal.un.org/ilc/summaries/9_6.htm

Responsibility in domestic law x international law

Domestic law

Centralized enforcement;

Enforcement through courts (compulsory jurisdiction);

Differentiated regulation of responsibility (civil law, criminal law, etc;);

Codified rules;

International law

Decentralized;

Usually self-help (countermeasures);

Single regulation of state responsibility though certain fields might have special

rules (e.g. space law);

Customary rules;

Codification attempts

Rules started to emerge since the end of XIX century in claims proceedings

concerning reparations for wrongful acts against foreigners;

1930 - Hague Conference: League of Nations failed codification proposal

UN International Law Commission since 1956 (though codification started in

1949 about damages caused to foreigners);

2001 - Adoption of Draft Articles on the Responsibility of States for

Internationally Wrongful Acts (DARSIWA) by the General Assembly, which

should have voted on it until 2013;

Responsibility of a State for its internationally wrongful acts (Art. 1)

Every internationally wrongful act of a State entails the international responsibility of

that State.
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Elements of an internationally wrongful act of a State (Art. 2)

There is an internationally wrongful act of a State when conduct consisting of an action

or omission:

a) is attributable to the Stateunder international law; and

b) constitutes a breach of an international obligationof the State.

Does not necessarily cause material harm;

State responsibility can coexist with individual responsibility;

Predominantly objective responsibility (determination of intention is usually

not relevant);

Imputability: attributing wrongful conduct to the state (link between the state and

individuals):

1) De jure state organs

o

Legislative

o Executive: includes ultra vires (beyond the powers) acts (act done

without legal authority);

o Judicial

Person or entity empowered to exercise elements of governmental authority

private prisons, airlines exercising certain immigration control powers, etc.

Agent or entity placed at the disposal of another international legal entity

Swiss police in Liechtenstein.

2) De facto state organs: persons who act under the direction or control of the

state (acting as the government is still considered an act by the state)

paramilitary organizations (illegal group organized as an army);

o ICJ (Nicaragua and Bosnia Genocide case): effective control

o Yugoslavi Tribunal (Tadic): overall control

Persons or group of persons in fact exercising elements of governmental

authority in the absence or default of the official authorities war lords in

Somalia;

Insurrectional movements if they become the new government or establish a

new state;

Subsequent approval of internationally wrongful act Tehran Hostages case

Circumstances precluding wrongfulness

Consent (Art. 20):valid consent by a State to a particular conduct by another

State precludes the wrongfulness of that act in relation to the consenting State;

Self-defense (Art. 21): if the act constitutes a lawful measure of self-defense

taken in conformity with the Charter of the United Nations (Art. 51), in the face

of an armed attack, for example;

Countermeasures (Art. 22): if the act of an injured State, not in conformity withan international obligation towards another State, constitutes a


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countermeasure taken against the latter State in order to procure cessation

and reparation;

Force majeure(Art. 23):occurrence of an irresistible force / unforeseen event

(natural catastrophe, for example), beyond the control of the State, making it

materially impossible in the circumstances to perform the obligation; it does

not apply if the conduct of the State invoked it or assumed the risk of thatsituation;

Distress (Art. 24): case where an individual, whose acts are attributable to the

State, is in a situation of peril/danger, either personally or in relation to persons

under his/her care, and this agent had no other reasonable way of saving life; it

does not apply if the State evoked it or if the situation is likely to create a

comparable or greater peril;

Necessity (Art. 25):when the act is the only means for the state to safeguard

an essential interest against a grave and imminent peril and does not seriously

impair (damage) an essential interest of the other state or states or of the

international community as a whole;

Legal consequences of an internationally wrongful act

1) Cessation and non-repetition: the State is obligated to cease that act, if it is

continuing, and to offer appropriate assurances and guarantees of non-

repetition, if circumstances so require;

2) Reparation: the State is obligated to make full reparation for the injury

(material or moral) caused by the internationally wrongful act. Forms of

reparation for injury (either singly or in combination):

o Restitution: is the re-establishment of the situation which existed

before the wrongful act was committed;

o Compensation: to compensate for the damage caused thereby, insofar

as such damage is not made good by restitution. The compensation

shall cover any financially assessable damage including loss of profits

insofar as it is established;

o Satisfaction: to give satisfaction for the injury caused by that act insofar

as it cannot be made good by restitution or compensation. Satisfaction

may consist in an acknowledgement of the breach, an expression of

regret, a formal apologyor another appropriate modality. Satisfaction

shall not be out of proportion to the injury and may not take a form

humiliating to the responsible State.

Irrelevance of internal law: the responsible State may not rely on the provisions of

its internal law as justification for failure to comply with its obligations under this part.

Countermeasures: otherwise unlawful conduct rendered legitimate by the priorunlawful act:


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Previous wrongful act

No threat or use of force (no armed conflict)

Cannot be in breach of ius cogens norms (fundamental human rights)

Not applicable in certain cases: it has to respect the inviolability of diplomatic

or consular agents, premises, archives and documents

Conditions relating to resort to countermeasures (before taking countermeasures):an injured State shall:

call upon the other state to discontinue its wrongful conduct or to make

reparation for it;

notify the responsible State of any decision to take countermeasures and offer

to negotiate with that State (peaceful settlement);

must be commensurate with the injury suffered (proportionality);

Termination: a countermeasure lasts until the wrongdoing state complies with

its obligation (when the internationally wrongful act has ceased).

Sanctions / penalties

Usually through self-help (when a State uses lawful means on its own initiative

to remedy a wrong), although there are collective sanctionsUNSC;

Retaliation: unlawful act in response to legitimate, but the other negative

states, unfriendly actdiplomatic representation, leading to recall;

Countermeasure: reprisal/retaliation;

STATE TERRITORY

Elements of State territory:

land territory;

territorial sea (TS);

seabed & subsoil of the TS;

airspace (above the land and the territorial sea).

Territorial sovereignty: special feature of States (effective and continuous display of

State authority)legal title (if the sea bed changes, there is a new borderline if

theres a boundary treaty

negative side: other States are excluded from activities (exclusivity)only the

authorities of the given state;

positive side: covers everybody + everything in the State territory

(completeness).

Land territory: its usually continuousexceptions:

separated by another State: Alaska (US), Kalingrad (Russia);

enclaves: Campione dItalia(in Switzerland), Vatican City, San Marino;

groups of islands: Indonesia, the Philippines, Japan


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Modes of acquisition:

Occupation of terra nullius: intentional acquisition by a state over a territory

which at the time of claim was not under the sovereignty of any state;

Prescription: continued occupation over a long period of time by one state of

territory actually and originally belonging to another state. The possession

must be exercised in the form of actual exercise of sovereign authority ( titrede souverain), it must be peaceful and uninterrupted, public and for a long

period of timeIsland of Las Palmas by NL, Channel Islands by UK;

Accretion or avulsion: accretion is the sovereignty over new land due to slow

movement of natural forces (such as the movement of a river bed); avulsion

happens if the natural forces happened suddenly (creation of an island in

territorial waters by volcanic action);

Cession: is the transfer of territory usually by treaty from one state to another

Alaska, Louisiana;

Adjudication: is the judicial decision made by the ICJ/judicial organ in a

disagreement of two parts in territorial disputes.

Plebiscite: is a decree of the people to join a territory with another State

(referendum)Upper Silesia 1921, Poland;

State borders (how states are separated from one to another one):

Not a line, but a two-dimensional figure;

Determination: political question (frequent arguments: natural, historical,

ethnic borders, geographical contiguitye.g. islands).

1) Natural borders

Mountain chains;

Navigable rivers: Thalweg-rule the middle of the main channel is the

boundary between two states;

Non-navigable rivers: one of the coasts or the geographic middle of the river is

the international border.

2) Artificial borders

Line of latitude or line of longitudeUS-CA, Sudan-Egypt etc.

State borders - 2 phases

Delimitation: different types

o Uti possidetis iuris (as you possess under law): for newly independent States,

its the preservation of borders under the colonial regime also after the

independence ;

o International adjudication: if states cannot come to terms by themselves, a

judicial organ makes the decision.

Demarcation: signs of the borders


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Limitations on territorial sovereignty

With regard to certain States

o International lease: Hong Kong by UK (1898-1997); Panama Canal Zone

by US (1903-1977);

o International servitudes: when by treaty a part or the whole territory of

one state is made liable to ordinarily permanent use by other state;o Good neighborliness, neighboring rights: principle that obligates states

to try to reconcile their interests with the interests of neighboring

states.

With regard to all States

o Innocent passage: any kind of ship can pass through a states territorial

sea without stopping (continuous, except for force majeure) Article

17 UNCLOS;

o Freedom of navigation: international rivers (only to commercial ships)

o

Diplomatic and consular representations: they are not part of the host

country, but they are territory of the represented country.

Legal regimes apart from State sovereignty

Res communis omnium usus (common things for the use of all): sovereignty over

natural resources cannot be acquired by States, but they are free for exploration and

use by the international community.

1) Polar regions

Antarctica

Washington Treaty States suspended their territorial claims. Use only for

peaceful purposes; waste dumping, military activities, nuclear tests are

forbidden.

The Madrid Protocol (1991)protection of the Antarctic environment

Arctic frozen sea, its situation under PIL is not settled (applicable law:

UNLCOS).

Attempt = sector principle (linked to states peripheral to the polar seas, USSR,

Canada)not accepted by the international community

2) High seas: are the open sea or ocean, especially beyond the three-mile limit or

territorial waters of a country, that is, they are not part of the territorial sea or

internal waters of a state. Freedoms for peaceful purposes:

navigation

fishing

flying over the high seas

laying submarines cables & pipelines

doing scientific research

construct artificial islands + installations

peaceful use (piracy not allowed)

3) Outer Space:


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Delimitation from airspace: no rule of PIL

State practice: between 80-110 km

Moon = common heritage of mankind, just like seas and planets

Common heritage of mankind: is a principle of international law which holds that

defined territorial areas and elements of humanity's common heritage (cultural andnatural) should be held in trust for future generations and be protected from

exploitation by individual nation states or corporations.

Moon Treaty (1979, into force in 1984):declaration that the Moon should be

used for the benefit of all states and all peoples of the international community

ratified by 16 states.

INTERNATIONAL LAW OF THE SEA

Sources of the law of the sea: customary law + treaties

Codification

The Hague Codification Conference of 1930: to reach an agreement on the

territory of waters, which turned into a failure;

UNCLOS I 1958 in Geneva: adoption of 4 conventions, on the territorial sea,

continental shelf, high seas, fishing and conservation of living resources in the

high seas;

UNCLOS II 1960 (unsuccessful): the aim was to determine the breadth of the

territorial sea;

UNCLOS III 1973-1982adoption in 1982 of the UN Convention on the Law of

the Sea (in force since 1994) its a comprehensive code of rules of

international law on the sea.

Basic terms

Territorial sea: the state has full sovereignty up to 12 nautical miles;

Contiguous zone: from 12 to 24 nautical miles after the territorial sea, the state may

exercise its sovereignty; its not automatically belonging to a country, countries claim

their sovereignty;

Exclusive economic zone (EEA): from 12 to 200 nautical miles after the contiguous

zone: the country has the right to fishing + exploring + creating artificial islands +

selling/leasing this right to other states;

High seas: Is the open sea or ocean which is not over a state's sovereignty. Freedoms

(peaceful use):

navigation

fishing

flying over it

laying submarines cables & pipelines


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doing scientific research

construct artificial islands + installations

deep seabed (floor of the ocean): common heritage of mankind role of the

International Seabed Authority is to control over minimum resources.

HUMAN RIGHTS

Human rights are rights inherent to all human beings without discrimination. The

fundamental principles of human rights form part of the customary international law -

considered a natural law conception, stemming from human nature (inalienable rights)

vertical relationship: human rights establish a connection between state and

citizens, thus only states can violate human rights.

Historic regulation

Magna Charta Libertatum (1215): habeas corpus;

US Declaration of Independence (1777);

Declaration on the Rights of Man and Citizen (1789);


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XIX century: slavery abolition treaties, treaties against trafficking in women,

freedom of religion (Christian minorities), even humanitarian intervention;

The International Labor Organization Constitution (1919);

UN Charter (1945);

Universal Declaration of Human Rights (1948);

The Helsinki Final Act (1975): its not a treaty and it wasnt intended to bebinding, but it includes human rights standards.

UN Charter (1945): its the foundational treaty of the United Nations, ratified by 193

countries, focused on the protection of international peace and security, it establishes

its principal organs:

General Assembly (GA):deliberative organ, composed of all representatives of

all Member States;

Security Council (SC): is responsible for the maintenance of international peace

and security;

Economic and Social Council (ECOSOC): principal organ to coordinate the

economic, social and related work of the UN, the specialized agencies and

institutions;

Trusteeship Council: it provides international supervision for 11 Trustee

Territories placed under the administration of 7 Member States and it ensures

that adequate steps were taken to prepare the Territories for self-government

and independence;

International Court of Justice (ICJ): is the principal judicial organ of the UN; it

settle legal disputes between states and giver advisory opinions to the UN and

its specialized agencies;

Secretariat: carries out the day-to-day work of the organization and carries out

various tasks: administering peacekeeping operations, surveying economic and

social trends, preparing studies on human rights, etc.

Main provisions about:

Prohibition of the threat and use of force

Pacific settlement of disputes

Full (formal) sovereign equality

Peoples right to self-determination

Importance of human rights

Preamble of the UN Charter: "We, the peoples of the United Nations are determined

to reaffirm faith in fundamental human rights, in the dignity and worth of the human

person, in the equal rights of men and women and of nations large and small"

Purposes: Art. 1(3): promoting and encouraging respect for human rights and for

fundamental freedoms for all without distinction as to race, sex, language, or religion.


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Art. 13(1): General Assemblyshall initiate studies and make recommendations for the

purpose of assisting in the realization of human rights and fundamental freedoms for

all without distinction as to race, sex, language, or religion;

Art. 55: UN shall promote universal respect for, and observance of, human rightsand

fundamental freedomsfor all without distinction as to race, sex, language, or religion.

Trusteeship system instead of Mandate, aim: reaching independence;

Universal Declaration of Human Rights (1948):GA resolution, originally non-binding,

but by now itspart of customary lawthe provisions reflect general principles of law

or elementary considerations of humanity. There are no concrete obligations; the main

purpose is to ensure international peace and security, protection of human rights is

just secondary.

Main provisions: right to life, liberty, security, property, nationality, prohibition of

slavery, torture, equality before the law

Generations of human rights

1st

generation: civil and political rights (negative rights); State has to refrain from

interfering with these rights. Examples: right to life and human dignity, freedom of

movement, right to universal suffrage, liberty of press, right to peaceful assembly;

2nd

generation: social, economic and cultural rights (positive rights): active

involvement of the state is necessary, therefore it cannot be a duty, but it depends on

available state resources (e.g. housing). Examples: labor rights (right to strike, form

trade unions, collective bargaining), right to education, healthy environment.

3rd generation: collective rights; exercised as part of community uncertain

normativity and content. Examples: minority rights, right to development, right to

peace.

Conventions

1966International Covenant on Civil and Political Rights (ICCPR)

1966International Covenant on Economic, Social and Cultural Rights (ICESCR)

1948UN Genocide Convention

1965Convention against the Suppression of All Forms of Racial Discrimination

1973UN Convention against Apartheid

1979UN Committee on the Elimination of Discrimination against Women (CEDAW)

1984UN Convention against Torture

1989UN Convention on the Rights of Child

Derogation: suspension or restriction of rights in case of emergency situations, only

under certain conditions and it's necessary to notify the supervisory body. However,

there's no derogation from absolute rights (freedom of conscience and religion,

prohibition of torture, inhuman and degrading treatment, slavery, humanexperiments).


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Supervision: expert groups or judicial bodies

1) State reports: States have to report periodically to a supervisory body on the

implementation at the domestic level of a treaty, by submitting reports on the

measures they have adopted;

2) Individual complaints;

3)

Collective complaints: a group of individuals or a nongovernmentalorganization may also lodge a complaint.

Individual complaint to an international courtrequirements to be met:

1) State must consent: states have to recognize the court jurisdiction and must

consent to the Court in an agreement, treaty or declaration;

2) Exhaustion of localremedies: the individual should first make use of domestic

remedies to right a wrong, then the individual might address the issue to an

international committee, court or other tribunal, it's the last resort if after the

domestic remedies have been exhausted;

3) No concurrent proceedings of another international body;

4) No anonymous complaints allowed;

UN Framework

UN Commission on Human Rights under ECOSOC (UN Economic and Social

Council) until 2006reports, recommendations to the ECOSOC.

UN Human Rights Council (UNHRC, since 16 June 2006) its a subsidiary

organ of the General Assembly; it consists of 46 members (13 African, 13 Asian,

8 Latin-American, 7 Western, 6 Eastern-European), elected by simple majority

of the GA for 3 years.

o Supervision of human rights situation in countries

it ensures compliance with the ICCPR;

o Working groups, rapporteurs ;

o Human rights mainstreaming: inclusion of human rights perspective in

UN work;

o Complaint proceedings: violations of all human rights and all

fundamental freedoms occurring in any part of the world and under any

circumstances communications submitted by individuals, groups, or

non-governmental organizations that claim to be victims of human

rights violations or that have direct, reliable knowledge of such

violations;

o Session: at least 3, min. 10 weeks;

o Advisory Committee (replaced the Sub-commission): makes

recommendations to ensure that racial, national, religious, and linguistic

minorities are protected by law;

1947 - Prevention of discrimination and protection of minorities

o Situation of women.


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REGIONAL PROTECTION OF HUMAN RIGHTS

EUROPE

Council of Europe (1949, 47 members): established by 10 states, it is an advisory

international organization promoting co-operation between all countries of Europe inthe areas of legal standards, human rights, economic and democratic development,

the rule of law and cultural co-operation.More than 160 European Conventions serve

as a basis for reforming and harmonizing Member States' legislation. Structure 3

pillars:

1) Committee of Ministers (decision-making body): It comprises the Foreign

Affairs Ministers of all the member states and their permanent representatives

(in Strasbourg). Function: determines the general operation of the CoE, adopts

conventions, political debate forum, admission of new member states,

supervises statescompliance with their obligations;

2) Parliamentary Assembly (deliberative body): consultative forum, consists of

delegations of member states of national parliaments; Powers: can initiate the

drafting of new conventions, and evaluates the final drafts, can give opinion on

the application of prospective new members, recommends sanctions;

3) Congress of Local and Regional Authorities of Europe (voice for local

democracy): consists of national delegations of local and regional elected

representatives of municipalities; Powers: evaluates legislation on

municipalities; it observes local and regional elections in the member states;

takes part in projects to strengthen local democracy and transfrontier co-

operation in Europe and it encourages the devolution and regionalization

processes

Major human rights conventions in the CoE

European Convention on Human Rights (1950)

European Social Charter (1961)

European Convention for the Prevention of Torture and Inhuman and

Degrading Treatment or Punishment (1987)

European Convention on Human Rights

Territorial scope: territory of member states unless it is prevented from

exercising its authority (Ilascu vs. Moldova: breach of applicants human rights

in Transdnistria).

Extraterritorial jurisdiction: effective control of foreign soil (Issa-case: Turkey in

Iraq; Al-Skeini: UK in Iraq). But territorial control is necessary (Bankovic), also

applies to extradition to non-party states.

The European Court of Human Rights (1959, in Strasbourg)


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It rules on individual or State applications alleging violations of the civil and political

rights set out in the European Convention on Human Rights.

Judges: number is equal to that of the contracting Parties (47 at present), each

judge elected by the Parliamentary Assembly for non-renewable 9-year terms;

most decisions are made unanimously;

Single judge formation (since 2010) 3-judge panel

7-judge chamber

17-judge Grand Chamber

Procedures:

Interstate application(very rare, e.g. Ireland vs. UK; Georgia vs. Russia):

States can accuse other States;

Individual petition: the Court decides on the damages;

Advisory opinion.

Individual petition

Any private person, non-governmental organization or groups of person (but

cannot be anonymous);

State violated conventional rights + significant disadvantage + valid personal

interest (e.g. near relative);

Not manifestly ill-founded;

Exhaustion of all domestic remedies;

Within 6 months after the final decision (only if it is effective remedy);

No parallel international proceedings.

Judicial procedure

1) Admissibility phase

Single judge, then 3 member panels or 7 member chambers (depending on the

complexity of the case).

2) Merits

7-member Chamber, but if the case concerns a serious question affecting the

interpretation or application of the Convention or a serious issue of general

importance or might change settled jurisprudence, 17-member Grand

Chamber;

Parties can request within 3 months after the decision referral of the case to

the Grand Chamber.

Judicial decision

Margin of appreciation doctrine: States are free to regulate their own efforts.

If the Court determines violation, damages + possibly renewal of proceedings in

the state


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Duty of state to harmonize its legal system with the case-law of the ECtHR

(Court: Convention is a living instrument)

Pilot judgment: since 2004 (Broniowski vs. Poland) the Court find the

reasons for the breaches If a structural flaw is behind a serious of bad

decisions in a country (e.g. erroneous legal regulation)

European Social Charter (1st

Generation of Human Rights - 1961)

la carte system: member states have to commit to 5 rights out of 7(hardcore)

Right to work

Form trade unions

Collective bargaining

Social security

Social and medical assistance

Right of families to social, legal and economic protection

Right of migrant workers and their families to protection and assistance

And they have to choose minimum 10 articles or 45 paragraphs (e.g. special protection

of women, mothers, the young, and children).

European Committee of Social Rights

The mission is to judge if the States parties are in conformity in law and in practice

with the provisions of the European Social Charter (supervises its implementation).

Composed by 15 members, independent expert body, elected a 6-year term of

office, renewable once

Periodic review of member states annual reports

Collective complaints procedure since 1998

Trade unions and employers organizations, other international NGOs with

consultative status with the CoE

AMERICAS

Organization of American States

1948 - Charterof the Organization of American States: it applies to all members (OAS)

1948 - American Declaration on the Rights and Duties of Man

1959 - Inter-American Commission on Human Rights

1965 - Individual complaints procedure concerning certain rights

1969 - Inter-American Convention on Human Rights (into force in 1978): it applies

only to those members that have ratified it.

The Inter-American Commission on Human Rights: receives a petition from any

person, group of persons or non-governmental organizations alleging violations of the


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rights protected in the American Convention on Human Rights and / or the American

Declaration on the Rights and Duties of Man.

The Inter-American Court of Human Rights (1979, San Jos, Costa Rica): an

autonomous judicial institution whose purpose is the application and interpretation of

the American Convention on Human Rights. If domestic remedieswere exhausted, the petition must be presented within

six months after the final decisions in the domestic proceedings.

Composition: 7 judges of 6-year terms, 5-judge chamber

Complaints procedure: individual, collective and interstate

Advisory opinion

Recommendations to states

AFRICA

1981 - Organization of African Unity (into force in 1986)

1981 - African Charter on Human and Peoples' Rights (Banjul Charter)

recognition of collective rights (individual and peoples rights as linked);

recognition of the right to development;

Duties of the individual to the state, society and family;

African cultural traditions (family is the natural basis and unit of society);

3rd

Generation of Human Rights: rights to peace, solidarity, a healthy

environment and development.

1987 - African Commission on Human and Peoples Rights: ensures the protection of

human and peoples' rights under conditions laid down by the Banjul Charter; it collects

documents; undertakes studies and research on African problems in the field of human

and peoples' rights; organizes seminars, symposia and conferences; disseminates

information; encourages national and local institutions concerned with human and

peoples' rights; and make recommendations to Governments.

The Commission can only deal with a matter submitted to it after making sure

that all local remedies, if they exist, have been exhausted.

Procedures: state applications, individual and collective petitions;

2004 - African Court on Human and Peoples' Rights (Arusha, United Republic of

Tanzania): the mandate of the Court is to complement and reinforce the functions of

the African Commission on Human and Peoples Rights, which is a quasi-judicial body

charged with monitoring the implementation of the Charter.

Composition: 11-judge chamber, of 6-year terms (can be reelected once).


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2008 - African Union: unification with the still non-existent African Court of Justice

and creation of African Court of Justice and Human Rights, but it has just 3 ratifications

Scope: individual petition if the member state accepts.

1975 - Economic Community of West-African States (ECOWAS): its mission is to

promote economic integration in "all fields of economic activity, particularly industry,transport, telecommunications, energy, agriculture, natural resources, commerce,

monetary and financial questions, social and cultural matters. Institutions:

The Commission

The Community Parliament

The Community Court of Justice: 7 judges of 4-year terms

o Individual petition (even for legal persons: corporate bodies, member

states);

o Examples: torture of reporters in Gambia, slavery in Niger, toleration of

human rights violations committed by multinational oil companies in

Nigeria;

ECOWAS Bank for Investment and Development (EBID)

LEAGUE OF ARAB STATES

Arab Charter on Human Rights (2004, into force in 2008)

Declares Zionism (independent State for Jewish people) an obstacle to human

dignity and the fulfillment of peoples rights;

Art. 8: prohibition of torture and inhuman and degrading treatment, but not

punishment;

Certain 2nd

generation rightsreserved for citizens (education, social security);

Certain rights are interpreted in light of the Shariah (equality of man and

women);

Retrospective juvenile death penalty allowed Art. 7 (1): Sentence of death

shall not be imposed on persons under 18 years of age, unless otherwise

stipulated in the laws in force at the time of the commission of the crime." it

leaves open the possibility that an individual who commits an offense while

under age 18 would still be executed after turning 18.

Oversight body: Arab Human Rights Committee

Every 3 years states send report

Committee might comment on them (but it is not obligatory)

No individual complaints


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INTERNATIONAL MIGRATION LAW

Terminologies

Migrant: a person who moves from one place to another (no legally binding

definition);

Migrant workers: legal term since 1990;Refugee: a person who has been forced to leave their country or home, because there

is a war or for political, religious or social reasons (legal term since 1951);

Internally displaced person (IDPs): is someone who is forced to flee their home but

who remains within their country's borders (legal term since 1998);

Victims of trafficking human beings (slavery, prostitution with no consent) and

smuggling(with consent). Palermo Protocols:

2000 - Protocol to Prevent, Suppress and Punish Trafficking in Persons,

especially Women and Children

2000 - Protocol against the Smuggling of Migrants by Land, Sea and Air

2001 - Protocol against the Illicit Manufacturing and Trafficking in Firearms,

Their Parts and Components and Ammunition

Stateless people: someone who doesnt have a nationality because of discrimination

against certain groups, redrawing of borders and gaps in nationality laws.

1954 - Convention relating to the Status of Stateless Persons

1961 - Convention on the Reduction of Statelessness

Branches and Sources of International Migration Law

Human Rights Law: ICCPR, ICESCR;

Migrant Workers Law

International Humanitarian Law (IHL)

International Labor Law

Refugee Law

Trade Law

Maritime and Air Law

Criminal Law

Nationality Law

Consular Law

Treaty law: is an international agreement concluded between States in written form

and governed by international law (treaty, protocol, charter, covenant, pact, statute,

arrangement). The main treaties concerning migration law are:

Refugee convention (1951): focused on forced migration;

ICRMW (1990): focuses on the human rights of migrant workers and their

families during the whole migration cycle, from pre-departure to post-arrival;

Smuggling Protocol (2000): concerned with fighting transnational criminality;

Trafficking Protocol (2000).


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Main pillars of international migration law

1) Human rights and duties of personsinvolved in migration;

2) Rights and obligations of states: right to protect borders, confer nationality,

safeguard national security, admission and expulsion of foreigners in the

country, residence permits, combat smuggling and trafficking, incentives toattract foreigners for high-skilled professionals, for investment purposes, etc.;

3) Cooperation among States to manage the international movement of people;

Rules of entrance in a country

No state can completely close its borders: it has to participate in the

international community;

All states are entitled to regulate migration: by setting its framework;

Admission and stay

Family unity / family reunification: right to bring relatives from your original country

(convention of rights of the child and migrate workers convention) soft obligations

for the states;

Labor migration: labor conditions;

Health care: illegal migrant shall be given the necessary treatments;

Rights of the child: has to be recognized by law through register;

Prohibition of arbitrary detention;

Refugees are forced migrants: economic migrants, voluntary migrants, etc. If

someone has to be persecuted or someone is in well-founded fear of persecution in

virtue of one of the 5 grounds: political opinion, religion, nationality, racial reasons,

belonging to a specific social group.

The United Nations High Commissioner for Refugees (UNHCR, 1950): the refugee

agency is mandated to lead and co-ordinate international action to protect refugees

and resolve refugee problems worldwide. Persons of concern to the UNHCR: refugees,

internally displaced persons (IDPs), stateless persons, asylum seekers.

overseen by the Economic and Financial Committee (Second Committee) of the

General Assembly.

Common European Asylum System (CEAS): it's a common asylum system to deal with

a number of specific problems stemming from the large differences in asylum systems

and practices among them that existed before.

Asylum is granted to people fleeing persecution or serious harm in their own

country and therefore in need of international protection. Asylum is a

fundamental right; granting it is an international obligation, first recognized in

the 1951 Geneva Convention on the protection of refugees.


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Return of migrants

Non-refoulement principle: it prohibits States from sending refugees back to

territories where their life or freedom would be threatened;

Expulsion by force: If the person doesnt want to come back home, the person

is expelled (illegal, non-compliance with the immigration law)

o

Collective expulsion is forbidden;o Fair procedure, causing the least harm to the person

o Right to appeal

o Family unity (if it contradicts the family unity principle)

o Extradition: criminal procedure developed back in the original country

PROTECTION OF MINORITIES UNDER INTERNATIONAL LAW

Protectionof minority rights: based on the fundamental premise of human rights law:

that all persons are equal in dignity and rights

Article 1 of the Universal Declarationof Human Rights (1948).

Definition of minority

Special rapporteur Capotortis - Article 27 ICCPR (1977)

It's a group numerically inferior to the rest of the population of a State, in a

non-dominant position, whose members being nationals of the State

possess ethnic, religious or linguistic characteristics differing from the rest of

the population and show, if only implicitly, a sense of solidarity directed

towards preserving their culture, traditions, religion or language.

Council of Europe (Rec. n 1201, 1993)

reside on the territory of that state and are citizens thereof;

maintain longstanding, firm and lasting ties with that state;

display distinctive ethnic, cultural, religious or linguistic characteristics;

are sufficiently representative, although smaller in number than the rest of the

population of that state or of a region of that state;

are motivated by a concern to preserve together that which constitutes their

common identity, including their culture, their traditions, their religion or their

language.

Types of minorities:

Linguistic(e.g. Welsh, Cornish, Manx)

Religious(e.g. Rohingya in Mianmar)

Ethnic(Roma, Kurds)

National(when there is a kin-state: a state which has a national minority living

in another country (called the host-state or home-state) Russia is a kin-state

to ethnic Russians living in Ukraine.


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4 Parts of minorities rights

1) Protection of physical existence

2) Protection and promotion of cultural or social identity

3) Ensuring non-discrimination and equality

4) Ensuring effective participation in public life

International instruments

Peace treaties (with clauses on minority protection)

Self-standing conventions on minority protection

Unilateral declarations (e.g. ALB, FI)

Universal instruments addressing minority/indigenous rights:

Non-discrimination in the UN Charter + in the UDHR

Article 27 of the International Covenant on Civil and Political Rights,

(1966) In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall not be

denied the right, in community with other members of their group, to

enjoy their own culture, to profess and practice their own religion, or to

use their own language

UNESCO Convention Against Discrimination in Education (1960)

Article 30 of the Convention on the Rights of the Child, CRC (1989)

ILO Convention no.169 concerning Indigenous and Tribal Peoples in

Independent Countries (1989)

The UNGA Declaration on the Rights of Persons Belonging to National or Ethnic,

Religious and Linguistic Minorities (1992)

The UNGA Declaration on the Rights of Indigenous Peoples (2007)

UNESCO Convention Against Discrimination in Education (1960)

In this context of private schools that the Convention affirms that States shall

recognize the right of members of national minorities to carry on their own

educational activities, including the maintenance of schools and, depending on the

educational policy of each State, the use or the teaching of their own language

UNGA Declaration on the Rights of Persons Belonging to National or Ethnic, Religious

and Linguistic Minorities (1992): it contributes to the development of standards on

minority rights by:

stating the rights of persons belonging to minorities in a positive language,

(compare with Article 27 ICCPR);

stating that States have the obligation to adopt measures to ensure the

enjoyment of minority rights (Article 4);

stating that States have the obligation to protect and promote the existenceand identity of minorities as groups (Article 1);


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stating the right of effective participation (Article 2);

stating that the rights can be exercised either individually or collectively (Article

3);

elaborating that the legitimate interests of minorities shall be taken into

account in State policy and programmes (Article 5).

UNGA Declaration on the Rights of Indigenous Peoples (2007)

Self-determination: autonomy as internal self-determination

Effective Participation

Decision-making: free, prior and informed consent

Land rights

Restitution or Compensation for loss of land

REGIONAL INSTRUMENTS

EUROPE

Council of Europe:

European Charter for Regional and Minority Languages (1992)

Framework Convention for the Protection of National Minorities (1995)

Organization for Security and Cooperation in Europe (OSCE):

Copenhagen Document of the Human Dimension CSCE (1990) and other

High commissioner on national minorities (since 1993)

European Charter for Regional or Minority Languages (1992)

Recognition of the importance of regional and minority languages for the

common cultural heritage in Europe

The Convention provides a system of alternative undertakings to protect

regional or minority languages

Not high level of participation by European States + reservations/declarations

Framework Convention for the Protection of National Minorities (1995) : it's a legally

binding instrument specifically for minority protection. The rights are exercised

individually as well as collectively. Its aim is threefold:

1) enhancing respect for the ethnic, cultural, linguistic and religious identity of

persons belonging to national minorities

2) creating appropriate conditions enabling persons belonging to national

minorities to express, preserve and develop their identity, and

3) creating a climate of tolerance and dialogue.

Rights which are part of general human rights law, including the right to freedom ofexpression, association, assembly and freedom of thought conscience and religion


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Measures to prevent discrimination

Measures to preserve and promote conditions for identity

Measures to promote intercultural dialogue

International measures of co-operation in these fields

Relevance of Nationality under Public International LawTraditional approach: nationality matters (acquisition/loss/deprivation etc.) belong to

States' domestic jurisdiction (domaine rserv), but there are some limitations

stemming from international law (e.g. human rights law)

Definition of Nationality: legal bond having as its basis a social fact of attachment, a

genuine connection of existence, interests and sentiments, together with the existence

of reciprocal rights and duties (ICJ, Nottebohm case 1955). Relevance of nationality

under PIL:

Peace treaties (option)

Diplomatic protection

Consular protection

In human rights context: right to a nationality as a human right (UDHR, ICCPR,

CERD, CEDAW, CRC + regional instruments)the right to have rights

Modes of acquisition of nationality: there are no exact rules of international law in

this regard. Categories:

By birth: original means of acquisition, in State practice there are two main

principles:

o

Ius soli: States confer their nationality upon children who are born in

their territory many countries of immigration: Canada, US, Brazil,

Argentina, France (since 1515);

o Ius sanguinis: children acquire the nationality of the parents most of

European States.

Naturalization: States normally grant citizenship to people who have entered

the country legally and been granted permit to stay, or been granted political

asylum, and also lived there for a specified period. Some states allow dual

citizenship and do not require naturalized citizens to renounce any other

citizenship.

Dual nationality and statelessness

Dual/multiple nationality: when a person is national of two (or more) States.

In the past: considered as anomaly;

Now: accepted in the 1997 European Convention on nationality and supported

by the International Organization for Migration;

Stateless: a person who is not considered as a national by any State under the

operation of its law (1954 NY Convention, Art.1)


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Creation of UNEP (United Nations Environmental Programme) in Nairobi,

Kenya: its mandate is to be the leading global environmental authority that sets

the global environmental agenda, that promotes the coherent implementation

of the environmental dimensions of sustainable development within the United

Nations system and that serves as an authoritative advocate for the global

environment.

3) Phase III - Holistic approach: Sustainable development

1983 - World Commission on Environment and Development (Brundtland

Commission): its mission is to unite countries to pursue sustainable

development together;

1987 - Brundtland Report (Our Common Future): it defines sustainable

development.

Brundtland definition of sustainable development: sustainable development is

development that meets the needs of the present without compromising the ability of

future generations to meet their own needs. There are two key concepts:

1) the concept of "needs", in particular the essential needs of the world's poor, to

which overriding priority should be given;

2) the idea of limitations imposed by the state of technology and social

organization on the environment's ability to meet present and future needs.

1992 - UN Conference on Environment and Development (Earth Summit, in Rio de

Janeiro)

Conventions:

UN Framework Convention on Climate Change

Convention on Biological Diversity

UN Convention to Combat Desertification

Non-binding documents:

Rio Declaration on Environment and Development (27 principles)

Agenda 21

Forest Principles

UN Rio Declaration on Environment and Developmentmain principles:

Global partnership: States shall cooperate in a spirit of global partnership to

conserve, protect and restore the health and integrity of the Earth's ecosystem;

Prior consultation: States shall provide prior and timely notification and

relevant information to potentially affected States on activities that may have a

significant adverse transboundary environmental effect and shall consult with

those States at an early stage and in good faith;

Environmental impact assessment: as a national instrument, shall beundertaken for proposed activities that are likely to have a significant adverse


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impact on the environment and are subject to a decision of a competent

national authority;

Sustainable development;

Polluter pays principle (PPP): whoever is responsible for damage to the

environment should bear the costs associated with it;

Precautionary principle: In order to protect the environment, theprecautionary approach shall be widely applied by States according to their

capabilities. Where there are threats of serious or irreversible damage, lack of

full scientific certainty shall not be used as a reason for postponing cost-

effective measures to prevent environmental degradation;

Common but differentiated responsibility: In view of the different

contributions to global environmental degradation, States have common but

differentiated responsibilities. The developed countries acknowledge the

responsibility that they bear in the international pursuit of sustainable

development in view of the pressures their societies place on the global

environment and of the technologies and financial resources they command;

http://unfccc.int/resource/docs/convkp/conveng.pdf

SECTORAL REGULATIONS

PROTECTION OF THE ATMOSPHERE

1979 - Convention on Long-Range Transboundary Air Pollution (CLRTAP)

(United Nations Economic Commission for Europe)

Soft commitments to combat the discharge of air pollutants (consultation,

cooperation);

Reports to the executive body;

8 protocols1985 - Helsinki: reduction of sulphur by 30%.

Protection of the ozone layer

1985 - Vienna Convention on Substances that Deplete the Ozone Layer: CFC

(chlorofluorocarbon) gases (Freon)196 ratifications;

1987 - Montreal Protocol:actual commitments, schedule for reducing or eliminating

ozone-depleting substances;

Success: 86% reduction of emission between 1986 and 1997

Global Warming

1992 - Rio Framework Convention (UNFCC): aim is to stabilize greenhouse gas

concentrations at a level that would prevent dangerous anthropogenic (human

induced) interference with the climate system; very general commitments (reports,

national efforts to combat climate change); it emphasizes common but differentiatedresponsibility. Structure:
http://unfccc.int/resource/docs/convkp/conveng.pdfhttp://unfccc.int/resource/docs/convkp/conveng.pdfhttp://unfccc.int/resource/docs/convkp/conveng.pdf


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Permanent Secretariat (Bonn)

Conference of Parties (COP): executive body (annual meeting)

International Panel on Climate Change (IPCC): scientific issues

Global Environmental Facility: financing

Kyoto ProtocolFirst commitment period (2008-12):reduction of greenhouse gases (especially carbon-

dioxide) compared to the 1990 base year (at least 4.2%). Flexibility mechanisms:

1) Joint implementation: investment in another country in projects that reduce

greenhouse gas emission;

2) International emission trading;

3) Clean development mechanism: investment in developing countries (includes

avoided deforestation projects);

PROTECTION OF OUTER SPACE

1967 - Outer Space Treaty - Art. 9: Exploration of celestial bodies in a way to avoid

their harmful contamination and also adverse changes in the environment of the Earth

resulting from the introduction of extraterrestrial matter and, where necessary, shall

adopt appropriate measures for this purpose.

1979 - Moon Treaty: declaration that the Moon should be used for the benefit of all

states and all peoples of the international communityratified by 16 states.

Art. 7(1): Parties must prevent the disruption of the existing balance of its

environment, whether by introducing adverse changes in that environment, by

its harmful contamination through the introduction of extra-environmental

matter or otherwise.

PROTECTION OF MARINE ENVIRONMENT

1982 - Chapter XII of UNCLOS (Protection and Preservation of the Marine

Environment)

Art. 192: States have the obligation to protect and preserve the marine

environment.

Art. 194: measures to prevent, reduce and control pollution of the marine

environment; cooperation, monitoring, technical assistance.

PROTECTION OF SPECIES

1946 - International Whaling Convention: International Whaling Committee (Executive

body);

1982 - Moratorium on whaling

1973 - CITES: Convention on International Trade in Endangered Species of Wild Fauna

and Flora. Varying degrees of protection of endangered species:

Appendix I: species that are threatened with extinction and are or may beaffected by trade, commercial trade is illegal. E.g. gorilla;


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Appendix II: not necessarily threatened with extinction, but may become so

unless trade in specimens of such species is subject to strict regulation

(permits). E.g. green iguana;

Appendix III: not necessarily threatened with extinction globally. E.g. alligator

snapping turtle.

PROTECTION OF THE HABITATS OF ANIMALS AND PLANTS

1971 - Convention on Wetlands of International Importance, especially as Waterfowl

Habitat (Ramsar Convention)168 state parties

Ramsar list of Wetlands of International Importance: more than 2000 sites, 26

in Hungary;

International Organization Partners (IOPs): 5 organizations

o World Wildlife Fund (WWF);

o International Union for Conservation of Nature (IUCN);

o

Wetlands International;

o BirdLife International;

o International Water Management Institute;

Biodiversity ConventionMain goals:

Conservation of biological diversity

Sustainable use of its components

Fair and equitable sharing of benefits arising from genetic resources

Regulated access to genetic resources and traditional knowledge (prior informed

consent)

Transfer of technology

2000 - Cartagena Protocol Biosafety (GMOs) Precautionary principle, possibility to

ban substances

2010 - Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benefits Arising from their Utilization to the Convention on Biological

Diversity.

Documents

International Law I