Sam en Vatting Introduction to International and European Law

8/6/2019 Sam en Vatting Introduction to International and European Law

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4 the right of cooperation ...........................................................................................................................24

4.1. human rights ..................................................................................................................................... 24

4.2. international criminal law ................................................................................................................ 27

exam: ............................................................................................................................................................29

Introduction to international and

european law

2.What is public international law:

2definitions:y Old definition: body of rules that regulate the conduct of states.y New definition: body of rules that regulate the conduct of states and other entities which at

any time are recognized as being endowed with international personality(=UN, WTO, all int

org).

Public international law vs private international law:

y Private law= domestic law dealing with cases with a foreign aspect.y Private law will tell you which rules coming from what country should be used.y Private law tells which country has jurisdiction.y Private law: system of law, part of statesdomestic law, utilized to determine how conflicts of

law and jurisdiction are to be resolved.

y Ex of private international law: caraccident in spain with a swiss cardriver.

y Ex of private international law: married in VS, but you want to devorce in Belgiumy Private law: handles about the relationship between natural and legal personsy Public law: handles about the relationship between natural and legal persons and

GOVERNMENT.

Functions of (public) international law:

y Regulates the co-existence of states:- rules about borders

-rules about seas

y Regulates the cooperation between states and other entities.Characteristics of (public) international law:

y No global legislation(at this moment), rules are made by states.y Absence of strong enforcement mechanisms. (there is no international police, even the

international court of justice is not really international, because of the absence of

compulsory jurisdiction)

y Very diverse: international law exists in a lot of different areas


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y Its a decentralized system+ horizontal system (state makes rules, states must implementthose rules= verschillende wetten naast elkaar)

y Problem of self-interest: if 1 country doesnt follow the rules. This will be an incentive for allother countries not to follow the rules neither.

3.The right of co-existence:

3.1. sources of international law:

y Art. 38 pg 91 in the charter of the UN:1.The Court, whose function is to decide in accordance with international law such disputes as are

submitted to it, shall apply:a.international conventions, whether general or particular, establishing rules expressly recognized by

the contesting states;

b.international custom, as evidence of a general practice accepted as law;

c.the general principles of law recognized by civilized nations;

d.subject to the provisions ofArticle 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a caseex aequo et bono, if theparties agree thereto.

y Treaties:Examples:

human rights treaty of rome, Amsterdam, (http://www.bayefsky.com/)

Definition:

y Itss an international agreementy Between states and international organizationsy In a written formy Governed by international lawy Parties bind themselves legally to act in a particular way or to set up particular relations

between themselves.

y Multilateral, bilateralSignature and ratification:

y Signing is a first step: once signed, you must reframe as a state from any act that mightundermine the object and the purpose of the treaty.

y Ratifying is an international act. Once you have ratified you have conceded(= toestaan) to bebound legally.

y http://europatientrights.eu/countries/signing_and_ratifying_a_treaty.htmlreservations:

y Its not forbidden in public international lawy Unless its forbidden by that specific treaty


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y Unless the reservation is incompatible with the purpose and the object of that specific treaty.3

categories of treaties(= verdragen):y Traits contrats: Verdragen die ertoe strekken de ene partij iets te laten doen,

waartegenover de andere partij een tegenprestatie levert. Bijvoorbeeld een verdrag over de

levering van wapens.

y Traits lois: Verdragen die gesloten worden om algemeen geldende regels vast te leggen.Worden ook wel codificatieverdragen genoemd en leggen het geldende gewoonterecht vast.

law making treaty: a treaty making new general rules of international law. Examples are all

human rights treaties.

y Traits constitutions: Men kan besluiten bij verdrag een internationale organisatie op terichten waarbij dan het verdrag min of meer als constitutie of grondwet van deze organisatie

fungeert.

Customary international law:It consists of rules of law derived from the consistent conduct of States acting out of the belief that

the law required them to act that way." (Rosenne, Practice and Methods of International Law, p. 55)

2 constitutive elements:

y Uniform state practice: states act the same way in the same situations. There must f irst beevidence of substantial uniformity of practice by a substantial number of states.

y Opinio juris sive necessitatis: refers to subjective belief that particular practice is legallybinding,Acts must occur out of sense of obligation. The principle of International Law is thatwhere states believe and accept that a practice exists and must be followed because of a rule

of law requiring it, the practice becomes a part of the body of norms known as International

Customary Law. Establishing opinio juris can be very di fficult, and

(http://nl.wikipedia.org/wiki/Rechtsovertuiging)( http://definitions.uslegal.com/o/opinio-

juris-sive-necessitatis/)

Codification of customary international law:

y Codification= Meaning you write it down in a treaty.Difference between treaties and customary international law:

y Customary international law: is binding for all states as such.y Treaties; only binding for the countries participating

Subsidiary sources:

y General principles of law:o Good Faith, includes equityo Estoppel

A state that has taken a particular position may be under the obligation toact consistently within another occasion.

When a state has acted to its detriment in relying on a formal declaration byanother state, the latter may be stopped from denying its responsibility for

any adverse consequences.

o norms


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y Judicial decisions of international courts: vorige uitspraken gedaan door international courtsals European court of justice, the international criminal court, the European court for human

rights, kunnen gebruikt worden voor nieuwe oordelen.y Act of international organizations:

- verordeningen

- richtlijnen.

y Soft law: political decisions taken by international organizations. Soft law is also viewed as aflexible option - it avoids the immediate and uncompromising commitment made under

treaties and it also is considered to be potentially a faster route to legal commitments than

the slow pace of customary international law. With the passage of time, in today's globalized

society it is easy to use the media and the internet to spread the knowledge of the content of

declarations and commitments made at international conferences. In doing so, these

aspirational non-commitments often capture the imagination of citizens who begin to

believe in these soft law instruments as if they were legal instruments. In turn, it is felt that

this ultimately impacts governments who are forced to take into account the wishes of

citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft

law instruments so frequently and with such import that they begin to evidence legal

norms.(Wikipedia, maar komt ook overeen met wat lien in haar cursus zegt)

Jus cogens:

y Number of fundamental norms for the entire world with no derogation.y Examples are:

- prohibibtion of genocide

- prohibition of slavery

- prohibition of racial discrimination

- prohibition on the use of force and aggression

-torture

-crimes against humanityy You can only change jus cogens by making a new one.

Hierarchy of sources:

y No formal hierarchy, except for jus cogens, these norms always prevail other rules.

3.2. subjects of international law:

States are the only international organizations having international legal personality.

States:

y Criteria for statehood:- defined territory (size doesnt matter and boundaries does not have to be defined

definitively.)

- permanent population (population does not have to be homogenous)

- government ( central government operating as a political body within the law of the land

and in effective control of territory. But once the state has been established, military

occupation by another state will not affect the statehood. even if its a so called failed state

Comment [L1]: Hierover heb ik geen cursus.

Comment [L2]: What about nomands?


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(like Somalia) which is not able to establish a government controlling most of the territory, it

will not stop to be a state)

-capacity to enter into relations with other states and entities (government must besovereign and independent so its not a subject to another state. example: treaty of

friendship between Bhutan and india in which Bhutan agrees that india guides its external

relations does not affect the statehood)

- are the principal actors of international law (states have rights and obligations)

-declaratory and constitutive theory: ( N,S Korea, EW Germany, NS Vietnam, Kosovo and

Siberia,)

o constitutive theory: recognition by the other states is needed.o Declaratory theory: no recognition by other states is needed because, the existing

situation is in fact the recognition of the state.

o Kosovo is aanvaard als staat door meerdendeel van de EU landen, maar spanje enCyprus doen dat niet, uit vrees dat de onafhankelijkheid van Kosovo delen van hun

land zou aanzetten tot onafhankelijkheid.

o Membership to the UN is open only to states although,Belarus and Ukraine becamemembers of the UN although they werent states.

- The right of self- determination: all peoples have the right of self-determination, and thusto determine freely their political status.

International organizations:

y Basic characteristics:- set up by states and/or international organizations.

- by means of a treaty (formulating common objectives)

-has one or more organs (with a distinct will, its more than reflecting the will of one member

of that organization.)

-enjoys international legal personality= it has obligations and rights under international law.

-established under international law

- the international rules are applicable

y Classification:o distinction between universal/ open and closed international organizations.

Open international organization: UN, WHO: why? In principle all states canapply for membership

Closed international organizations: EU (only European countries can enterand there are other rules too)

o Distinction between intergovernmental and supranational: Intergovernmental international organizations: NATO, council of

Europe,NAFTAno transfers of sovereignty (see supranational)

Supranational international organizations: transfers of sovereignty/sovereign rights of members to the organizations: so the organizations can

make decisions even if its against the will of one or more members.

y EU has supranational characteristics/domains.y Security council of the UN has some supranational elements, but

other UN organs dont.

o Functional and general/ political organizations


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Functional= narrow focus. Example= Interpol General/political= wide focus. Example: UN, EU, African Union,

Other subjects:

(objects of international law, because there are no direct rights and obligations attached

directly.)(object vs. subject of int law.)

y Liberation movements: have some rights under international law. With the development ofthe lawrelating to non-self-governing territories and the principle of self-determination,

certain movements may be in the process of acquiring the status of a subject of international

law.An exceptional example is the Palestine liberation organization, because all other

NLMs have already obtained statehood for their territories.

y Natural persons: persons can only enjoy rights under international law if states have agreedto this.(example: a person with a claim against another state cannot take the claim to an

international court or tribunal without intervention of the persons state. Tenzij dat er een

special treaty is opgericht waaronder de staat toelaat dat er direct een klacht mag ingediendworden)

y Legal persons:-companies

-non-governmental organizations: NGO: it is set up by ind. And its set up under national law

and not international law. Example: greenpeace, international committee of red cross,

amnesty international. IMPORTANT: the international committee of red cross has

international rights. NGOs are not subject to international law, unless they provide

humanitarian relief, provide information, lobbyists or pressure groups)

3.3. jurisdiction:

introduction

yIn welke mate laat international law toe om als state domestic jurisdiction over persons andthings in its territiory uit te oefenen.

y Its an aspect of sovereignty of states, as reflected in the principles of the equiality of statesnon-interference in another states domestic affairs.

y Domestic jurisdiction can take 2 forms:o Prescription: making of lawo Enforcement: implementation of law

y Conflicts of jurisdiction in civil matters are generally resolved by applying rules on conflict oflaws.

y State may exercise jurisdiction if there is a sufficiently close connection between the subjectmatter and the state to override the interest of a competing state

Territorial principle:

y Primary basis for jurisdictiony State is free to legislate and enforce that legislation within its territory, the main exception

being when that freedom is restricted by a rule of international law.

y Territory: this territorial principle can be used on the following domains.o land area

Comment [L3]: Hier heb ik ook niets extra ov


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o internal waters:o territorial sea:

-breadth territorial sea: up to max 12 nautical miles.- belongs to the territory of the coastal state but ships have the right of innocent

passage (except in international straits: right of transit passage)

o airspace above the areas: aircraft flying over are primarily subject to thejurisdiction of the state of registration.

- Officials of a foreign state cannot take evidence or exercise other jurisdiction without theconsent of the international state. Not even in the foreign embassy, since embassies are

not foreign territory.

- A legal process cannot be served directly in another state, only if both countries acceptedby means of a treaty. Only in exceptional cases could the ICC of one state sit in another

state.

- functional jurisdiction:o coastal state1 enjoys no full sovereignty, only sovereign rights for certain

purposes

o contiguous zone(aangrenzende zone): can extend beyond the territorial sea but not further than 24 nautical

miles from the baselines from which the territorial sea is measured.

Coastal state is entitled to exercise the control of its customs, fiscalimmigration and sanitary laws and regulations when committed within

its territory or territorial sea

o Exclusive economic zone: Area adjacent to the territorial sea; extending up to 200 nautical miles

from the baselines from which the territorial sea is measured.

Coastal state has sovereign rights for the purpose of exploring,exploiting, conserving and managing the natural resources, whether

living or non-living, in the water, on the seabed and the subsoil.o Continental shelf:

Is the natural prolongation of the land territory below the sea level Area adjacent to the territorial sea that extends up to the outer edge of

the continental shelf (is the section of the seabed that gradually slopes

from the low watermark to an average depth of 130 meters) or to 200

nautical miles from the baselines from which the territorial sea is

measured, whichever is greater.

Coastal state has sovereign rights for the purpose of exploring andexploiting its natural resources on the seabed and the subsoil

- Areas where no sovereign rights are exercised:y The area:

The seabed and the ocean floor that is not part of the continental shelfof any state: the deep seabed

Is declared common heritage of mankindo The high seas:

1http://www.rya.org.uk/infoadvice/boatingabroad/Pages/unclos.aspx

Comment [L4]: Vanaf pg 281 in boek.


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Are all parts of the sea that are not within the EEZ, territorial sea andinternal waters

o All states enjoy the freedoms of the high seas: freedom of navigation, freedom ofoverflight, freedom to lay submarine cables and pipelines, freedom of fishing,

freedom of scientific research.

o Outer space.

Nationality principle:

y Nationality: National aspect: the law of each state determines who are its nationals:

y Ius sanguinis: family in Belgiumy Ius soli: place where youre born (ex. Green card in America)

Every state has its own system: Belgium has a bit of both, primary it usesius sanguinis, but when you stay for several years in Belgium, you can

become Belgian.

International aspect: although nationality may be valid in the state ofnationality, sometimes it may not be recognized by the purpose of

international law.Because countries apply different rules you can have

different nationalities or you can have NONE the noteboom case!

Noteboom case: he had german nationality, lived there for many yearsand was born there(1930-1940). Then he moved to Guatemala for

business reasons, where he started up a very successful company. He

came back to germany and afterwards to Lichtenstein, because he

wanted to have the Lichtenstein nationality. He obtained it by paying a

huge amount of money. Then he went back to Guatemala. 2 years later

Guatemala entered the WO2 war against germany.

o Notebooms property is confiscated and hes put in jail.


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o After wo2 they released him, but property was nevercompensated.

o According to noteboom, Guatemala has violated humanrights.

o He wanted to receive some compensation and filedcomplaint against Guatemala.

o He asked Lichtenstein to excercice the right of diplomaticprotection.(= state has to protect the interest of civilians

on international level. Lichtenstein should sew

Guatemala. Its a right.)

o Lichtenstein agreed and sewed Guatemala.o Int court of justice said the claim of Lichtenstein was not

admissible, so no descision on the merits of the case.

Why?

o Why: there was no real connection with Lichtenstein, hejust paid a huge amount of money and thats the reason

why the complaint was not admissible

Active personality principle:o Used in criminal lawo State has jurisdiction to his principles abroado A state can prosecute a national who has commited a

crime outside the state.

Passive personality principle:o Used quite often by the USA, when dealing with

terrorism

o Not accepted in international lawo Crime commited by foreigner abroad, but victim is an

American.o Prisoners of Guantanamo bay.

Protective principle:o Outside territoryo Commited by foreigno Victim is foreigno But crime against the vital interest of the stateo Used for counterfeiting

Universal jurisdiction or quasi-jurisdiction:o Accepted but exceptional (its exceptional for states to

have jurisdiction under their law over crimes committed

abroad by foreign nationals against foreign nationals.

y Universal jurisdiction:o Accepted for piracy, slavery, genocide and everything

against human rights, because these crimes are so

prejudicial(=schadelijk) to the interest of all states, that

customary international law allows any state to exercise

jurisdiction over them, wherever they take place and


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whatever the nationality of the alleged(= vermeende)

offender or victim.

o part of customary international lawy Quasi-jurisdiction:

o refer to this principle in framework of very specifictreaties. (treaty law)

o certain treaties dealing with terrorism also incorporation of universal jurisdiction, but sicne it only

applies to parties

o States are very reluctant because: its very costly

it can endanger the diplomatic relationships between

countries.(ex. Belgium did it once, when not many

countries had accepted this universal jurisdiction. What

happened: people were scared to come to Belgium (they

could be arrested)

Extradition:o = uitleveringo There is no general obligation to extradite.o Treaties that specify that crimes are extraditable:

Double criminality principle: extradition is grantedonly if the act for which extradition is asked is

regarded as a crime by both involved countries

Principle of speciality: about the fact that if theaccused person is extradited, he can only be tried (=

berecht) for the crimes committed in the country to

which hes extradited No obligation to extradite its own nationals, but then

the state has to do the case itself

No extradition for political offences Ne bis in idem principle: no extradition will take

place if requesting state has already tried that

person ( je mag niet 2 maal veroordeeld worden

voor het zelfde feit)

o 2 important instruments in EU for extradition: European convention for extradition (council of

Europe, 1957): purpose= to simplify the

procedure

EU framework decision on the European arrestwarrant (EU,2002): purpose= to speed up, to

simplify.

Comment [L5]: Wtf?!

Comment [L6]: Ook nie helemaal duidelijk.


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Restrictions and jurisdictions:

y State immunity(sovereign immunity):o Based on souvereign equality of states. This means that a state cannot exercise

jurisdiction over another state.

o Initially state immunity was absoluteo Now more restrictive approach:

Acta iure imperii Acta iure gestionis

y 2 aspects of state immunity:o Immunity for the state itself: (de rechter van de ene staat kan geen vonnis wijzen in

een zaak waarin de andere staat gedaagde is.)

In the past it was an absolute rule, nowadays a more restrictive approach isused, because, when you go back to the sovjet union, all companies were

owned by the state so they all joined immunity! They removed state

immunity for commercial transactions:

Acta iure imperii: we talk about transactions which can only be doneby a state.

Acta uire gestionis: transactions that anybody can do. (realcommercial transaction)

Problem: what happens if state, the ministery of defence, wants to purchaseuniforms? 2 views on this matter:

The Netherlands: they look purely to the nature of thetransaction.(so the example is a commercial transaction)

France: they see it as a public transaction, so in the example they cankeep state immunity.

o Immunity for heads of government or state: A head of government cannot be prosecuted in another country. Initially: absolute, but its under pressure for serious international crimes.

Thats why they found the international tribunals:

2 in den haag (joegoeslavia, crime court) 1 in tanzania (rwanda)

Can these persons be prosecuted before a domestic court? They always have the right to be prosecuted in their own country Can they be prosecuted in another country? Can Kadhafi be

prosecuted in Belgium? no, we still have to admit that these

persons can only be prosecuted in a foreign country once he stopped

his function or when crimes happened before his function.he can

only be prosecuted for crimes commited in their private capacity

o Diplomatic immunity: Diplomatic agents(= the members of a diplomatic mission)

Head of the diplomatic mission= the ambassador, must be acceptedby the receival state, otherwise no immunity.

Diplomatic staff

Comment [L7]: Snap niet

Comment [L8]: Snap niet

Comment [L9]: For milosovic

Comment [L10]: Ook tijdens dat hij an de ma

is?


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Functions of diplomatic mission: maintenance of contacts at governmentlevel and report to the sending state about what goes on in the receiving

state. Nature and scope of diplomatic immunity:

Only functional immunity: so there has to be a connection with theirjob.

Status of the premises(= gebouwen) of those diplo functions(=embassy) is inviable, meaning that the receiving state cannot enter

the premises without acceptation from the ambassador. Although

the embassy does not belong to the territory of the sending state.

The receiving state has also the duty to protect the foreignembassies.

Consular posts: General + agents Have to be accepted by the receival state= exequatur Functional immunity Difference consular posts en diplomatic mission: consular posts= to

protect and assist the nationals of the sending state and promote

commercial, economic, cultural and scientific relations and coopere-

ation with receiving state.

Stel ge gaat naar land waar er geen belgisch consulaat is, dank an jeals lid van de EU altijd naar een ander europees consulaat gaan.

Another difference: 1 embassy, but its possible to have differentconsular posts in country.

3.4. treaties and domestic law:

Introduction

- Once treaty entered into force for a state, it does not necessarily become part of its law.Treaty law and domestic law operate on different legal levels. A treaty creates rights and

obligations binding on states and other international legal prsons. But, when treaty

confers rights or imposes obligations on natural or legal persons, the rights can be given

effect only if they have been made part of the domestic law of the party.

Duty to perform treaties

- nmaal een treaty in werking treed moeten de partijen de treaty ter goede trouwnaleven. Zo mag een land zijn domestic law niet gebruiken als verantwoording van het

niet naleven van international treaty. Dus als een domestic law niet overeenkomt met

treaty, dan moet land zijn domestic law aanpassen.

- Is incorporation of a ru le of international law into domestic law necessary? 2 approaches:y Monism:

o Unity of entire legal ordero Domestic law and international law are one legal ordero Rules of international law are an integral part of domestic law ( a treaty may become

part of domestic law once it has been concluded in accordance with the constitution

and has entered into force for the state)

Comment [L11]: Heb ik ook niets over!


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o Used in Belgium and France, Switzerland has the most developed form of monism.y Dualism:

o Existence of two legal orders: international law and domestic law exist separatelyo National judge functions within its domestic law systemo Rule of international law has no effect in domestic law unless the international rule

has been incorporated into domestic law.

o Most developed in the UK. Also used in Italy and Germany and USA.Hierarch of norms: what happens in case of a conflict between an international and national rule?

y Monism:o International rules prevail over a national rule ( and overrides any inconsistent

domestic legislation)

o A self-executing international rule can be invoked by natural or legal persons beforea national court.

y Dualism:o International rule has no effect unless the international rule has been incorporated

into domestic law; it has then received the status of domestic law

o Therefore no conflict between an international rule and national rule, but conflictbetween two national rules.

o Lex posterior derogate legi priori: the most recent law/ rule will prevail. So it ispossible that a new national rule can prevail over an international one.

o Dualism is difficult to accept in the EU, because some European rules have a directeffect on national courts. These rules are self-executing, because they are

regulations with a general application. Theyre binding in its entirety and are directly

applicable in all the member states. This means that if there is a conflict between a

EU-rule and a national rule, the EU-rule will always prevail! Countries who apply the

principles of dualism have to make an exception due to European legislation.

3.5. state responsibility:

The law of state responsibility:

y Is customary international lawo Articles are residual: only apply when when internationally wrongful acts are not

governed by special rules of international law.(ex. Damage caused by space objects.)

o Customary international law will only be applied to matters not covered by articles,so leaving open the development of the law of state responsibility

o Articles are without prejudice to the UN charter.y Problem is that sometimes the rules are not entirely clear and thats why they started to

codify(write down) the rules. At the moment this is the task of a special international

commission. This work takes place in the framework of the international law commission.

(consisting of around 20 experts in international law, they dont represent their country.See

final draft articles on the responsibility of states for internationally wrongful acts

(international law commission)

Comment [L12]: Heb ik ook niets over!

Comment [L13]: State responsibility is

customary international law while state immunit

mostly domestic law.


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The nature of state responsibility: (2 elements we need to be able to talk about state

responsibility: ) (in boek noemt dit general principles)

y Violation of an international legal obligation by a statey Violation is attributable to the state:

o Organs of the state: (only the conduct of a states organs of government or its agentscan be attributable to the state.)

Organs can be legislative, executive or judicial in nature + persons or entitiesempowered to exercise elements of governmental authority

State organs include those of the national, regional or local government( ex.Flemish authorityimputable to Belgium, even if those acts are unauthorized.

Ex. Torture of policemen.

o The conduct of state organs, or persons empowered to exercise elements ofgovernmental authority are considered acts of the state if they act in that capacity

and even if the exceed their authority (=ultra vires2)or contravene instructions

o Purely personal acts cannot be attributed to the stateo The conduct of private persons is attributable to the stazet only if three conditions

are met:

They are in fact exercising elements of governmental authority They do so in absence or default of official authorities The circumstances call for the exercise of those elements of governmental

authority.( van gedekolonialiseerde gebieden zijn zowel de former

government als the new government responsible )

o If state A is placed at disposal of state B to exercise e lements of governmentalauthority of state B, its conduct is considered an act of state B.

The consequences of state responsibility:

y Cessation and non-repetition of the unlawful act(primaire eis van de leidende staat)y Reparation: (vaak maar een secundaire eis)

o State is under the obligation to make full reparation for the injury caused by theinternationally wrongful act.

o Forms of reparation: Restitution in integrum: re-establish the situation that existed before the

wrongful act

Compensation: is the most common form of reparation(mostly money) Satisfaction: when an injury cannot be made good by restitution or

compensation(people got killed), responsible state must give satisfaction;

may be an acknowledgement of the breach, an expression of regret or a

formal apology

De drie forms of reparation zijn niet mutually exclusive, ze kunnen dustezamen gebruikt worden.

2Ultra vires volgens Maxim= a cts which are unauthorized but which have been exceeded in the official capacity

of the state. Example: torture by Mexican policemen of a French businessman.


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3.6. settlement of disputes:

Introduction:

y States are sovereign and therefore free to chose the method of dispute settlementy But according to art. 2(3) of the UN charter: states shall settle their international disputes by

peaceful means.--> states are not allowed to use force: 2 exceptions:

o Self-defenseo Allowance for an exceptional case.

y 3 ways to settle a dispute.Negotiations and consultations

y Is often the first step of solving a dispute. This first step exists out of direct talksbetween the disputing parties. These negotiations might result into a treaty, but its

not always possible.

Involvement of third party without binding result

y Good offices: the third party will just provide impartial assistance. He will offer a kind ofchannel of communication between the 2 parties. This method is used when the 2 parties are

not willing to enter into direct talks with each other. Third party is a kind of go-between.

Example: conflict between USA and Iran in the 1980s. (passive role of third party)

y Mediation: difference with good office is that a mediator will try to reconcile the claims ofboth states. The mediator plays an active role because he will try to formulate solutions.

Example: peace agreement between Israel and Egypt mediated by US in camp david.(active

role of third party)

Good offices and mediations are more political processes and therefore they may not besuitable for the resolution of a legal dispute.

yConciliation: here we talk about fact-finding. (= trying to find out what really happened in theconflict.)

o A conciliation commission finds out what happened and makes proposals about thesettlement of the dispute. Example of fact-finding: conflict between Hamas and

Israeli army.

o The conciliation commission may draw the attention of the parties to the dispute toany measures that might facilitate an amicable settlement.

o The commission shall hear the parties, examine the claims and objections, and makeproposals to the parties with a view to reaching an amicable settelement of the

dispute.

o A conciliation commission is usually composed of three to five members, onenational member of each party and 3 neutral persons chosen jointly by the parties, a

neutral member serves as chairman.

o Conciliation is not binding and so less effective then arbitration or judicial settlementInvolvement of third party with binding result:

This third method requires a mutual acceptance of the competence of the entity that will settle the

dispute in advance. This kind of acceptance is a condition for membership in organizations such as

the WTO, EU and the CoE(they have to accept the juri.


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ex. EU: as you become member of the EU, you accept the jurisdiction of the European court of justice

or the council ofEurope: European court for Human Rights.

y Arbitration:o Submission of a dispute to arbitrators (chosen by the parties, one arbitrator for each

party, the arbitrators chose together another arbitrator.)

o Parties agree to accept and respect the awardo Save time compared to judicial settlemento Much more expensive compared to judicial settlemento Arbitration mostly ends by compromise.o Examples:

Permanent court of arbitration: is not really a court, were just talking abouta permanent facility. Same building as ICJ in den haag. The dispute between

Belgium and the Netherlands about the ijzeren rijn rail way is been settled by

the permanent court of arbitration.

Mixed arbitral tribunals: not a dispute between 2 states but a disputebetween a state and a national or legal person of another state. international

centre for the settlement of investment disputes, Iran-united states claims

tribunal,

y Judicial settlement:o Permanent courts: we talk about judges ( they are not chosen by the parties)o Judges are not chosen by the partieso Examples: ICJ, ICTY(= international criminal tribunal for the former Yugoslavia

republic), ITLOS(= international tribunal on the law of the sea),ECJ,

y International court of justice:o Part of UN: those who work for the court, including even the judges, are employed

by the UN. (ipso facto= automatically)

o No extra costs, they pay annually a contribution to UNo Main traditional bodyo Statute: no separate treaty, but is part of charter of UN, so all members of UN are

automatically part of the ICJ.

o Composition: 15 judges elected with simple majority They are elected by the general assembly and the security council The 15 judges must represent all the legal institutions of the world: 3 judges

ofAfrica (1 for civil law, 1 for common law, 1 for Islamic law), 3 judges for

asia, 2 for east Europe, 5 for west Europe and rest and 2 for latin America

Judges ad hoc: when ICJ does not include a judge that hasnt the nationalityof a specific party. (Belgium has no judge in ICJ), they have the right to

choose a judge of their nationality.

All judges have international law backgroundo Competences of ICJ:

Settlement of disputes between states Only states can file a complaint before the ICJ ( no ind, no

companies,)

Comment [L14]: Or of and?

Comment [L15]: Klopt volgens mij niet

Comment [L16]: Wa willen ze hiermee zeggn

Comment [L17]: Wa willen ze hiermee zegge


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No system of compulsory jurisdiction within ICJ, the parties shouldaccept the jurisdiction for that specific case. (in the European court

of justice the jurisdiction is compulsory) 4 ways to accept the jurisdiction of the ICJ:

Reciprocal declaration: declaration made under a specificarticle 36 of statute of ICJ. made by 1 state saying that the

state accepts the compulsory jurisdiction of the court in

relation to any other state accepting the same obligation.

1. At this moment only 66 countries made adeclaration that they accepted the jurisdiction of the

court. Only 1/5the of the permanent members of

the security council have accepted the jurisdiction.

(UK accepted) other members:

2. Russia: didnt accept3. China: refused to accept the declaration made

previously by former nationalist china

4. France: originaly the did accept, but the withdrew it.5. Us: originaly accepted, but excluded disputes that

were essentially in the domestic jurisdiction of the

US as to determine by US, but withdrawn

Forum prorogatum: not often used. The state has notaccepted the jurisdiction but can be implied from some

actions in relation to the procedees (when state is sewed for

ICJ he choses to defend his case.)

Compromise: nothing more than agreement between 2countries, in which they agree to settle the dispute by the ICJ

Compromissory clause: a specific clause in treaty underwhich the parties agree to submit all disputes regarding theinterpretation and application before ICJ.

Most of the cases are compromissory clauses, but also a lotof cases with declaration.

Admissibility: No legal interest: ex. When claim is about the loss or harm to

one of the applicants nationals and the respondent asserts

that the person is not a national of the applicant state. The

respondant has no responsabilities towards that person.

Exhaustion of local remedies: state may not exercisediplomatic protection or resort to any international

procedure to seek redress for one of its nationals, unless it

has exhausted all the legal remedies available to him in the

state of whos action he complains.(ex. Sovjet fighters shot

down an civilian airplane. Uk could immediately demand

compensation because it had no point that relatives would

go to sovjet courts.)

Comment [L18]: Snap ik nie veel van!


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Non liquet: because international law is not complete,aninternational tribunal should decline to decide a case if the

rules are not available. The applicable law: the ICJ has to decide cases in accordance with

international law. But if parties agree, the ICJ can decide ex aequo et

bono(= in het eigen vermogen en rechtvaardigheid)

Provisional measures: measures to prevent the respondent fromdoing something that might render any eventual judgement more or

less futile. The ICJ is willing to order provisional measures if there is a

real possibility that without them the rights of the applicant could be

affected.

Procedure: When state files complaint against another state, that state

will:

1. Challenge jurisdiction2. Claim of ICJ is not admissible and there are several

grounds for that:

The other state has to exhaust localremedies

The applicant has no legal interest. Registrar of the ICJ is the source of all knowledge on

procedure and practice.

Procedure:1. Concise written application with the facts. Or jointly

made application if case comes by the means of a

compromise.

2. Parties appoint agents(= formal figure), the day today running is done by depute-agent.

3. Applicant submits memorial4. Preliminary objections after receipt(=ontvangst) of

memorial. (zie hierboven.)

5. ICJ will hear oral arguments on the preliminaryobjections and take decision.

6. Respondent replies with counter memorial7. Pleadings held on the merits.8. Judgement is given at a further public hearing. Each

judge can make a separate declaration or give a

separate concurring or dissenting opinion.

Judgement: Judgement of ICJ is only binding inter partes (between the

parties), but the reasoning can be used for international law.

Separatedissenting opinion: decisions are taken by simplemajority. So a separate opinion means that the judge agree

with the judgment but fol lows another reasoning. Dissenting


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opinion is that they dont accept the judgment, neither the

reasoning.

Case pending: instituted by Belgium against Senegal. Dispute aboutthe former president of Chad whos living in Senegal. 10 years ago

some Belgians accused the former president of torture and crimes

against humanity (in 2002), but the president lived already in

Senegal. At first he was indicted. But after 4 months the indictment

is been dismissed because torture and human rights were not

included in Senegal law. In 2007 the Senegal government included

torture and crimes against humanity into the penal code, but they

didnt arrest the former president and thats why Belgium is accusing

Senegal because they violated the int.law. in fact, they violated 2

important articles:

If person committed torture and is living in a state whoaccepted the UN convention . that state is obliged to

prosecute or extradite that person.

All countries are obliged to prosecute or extradite personswho committed crime against humanity.

In this case they use a compromissory clause in the treaty againsttorture. Secondly, both countries have made a declaration accepting

the jurisdiction of ICJ.

Other case: Macedonia against Greece. Because of violation ofbilateral treaty. Goes about the name to be used for Macedonia.

They have applied for membership in NATO. This application was

blocked by Greece. Greece violated the bilateral contract by doing

that, because the contract said that Greece couldnt block the

membership of an international organization. But the contract said

also that Greece could block that if they applied under the name ofMacedonia. But not under the name of former Yugoslavian republic

of Macedonia. But Macedonia applied under the right name, so

thats why Macedonia condemned Greece for the ICJ

Use of compromisory clause! Competences of the ICJ: Giving advice and opinion:

Who asks for advisory opinion? Not states! Only specific organswithin UN can ask for advisory opinion ( general assembly, security

council and other UN organs and UN specialized agencies, if

authorized by the general assembly.)

Not binding but very influential Advisory proceedings referred to the icj: advisory proceedings |

international court of justice.

3.7. law enforcement:

How should a state, whos rights have been violated, obtain redress (restitution)?

y Measures not involving the use of armed force:

Comment [L19]: Nog niets extra over


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o Retortion: is the adoption by one state of an unfriendly and harmful act, which isnevertheless lawful as a method against another state who has committed an

unlawful acto Countermeasures(preprisals):

Reprisals are acts which are in themselves illegal but because they have beenadopted by one ste in retaliations for the commission of an earlier illegal act

by another state, they are lawful.

Requirements: Proportionality Not violating humanitarian law Must stop once they have the desired effect. (once the unlawful act

has ceased)

Obligations not affected by countermeasures: Refrain from the use of force Protect fundamental human rights Respect the inviolability of d iplomatic and consular agents. Respect the rules of ius cogens

y Measures involving the use of armed force:o Fundamental principle: states refrain in their international relations from the threat

or use of force against the territorial integrity or political independence of any stae

or in any other matter inconsistent with the purposes of the UN (art. 2 par. 4 UN

charter)

o First exception: security council authorizes the use of force (security counci lauthorizes the use of force ( for various reasons)

o Second exception: self-defence: Nothing in the present charter shall impair the inherent right of individual or

collective self-defence if an armed attack occurs against a member of the UN

until the security council has taken measures necessary to maintaininternational peace and security.

Requirements: Proportionality principle Reporting to the security council Temporary character Armed attack has taken place but what about preventive self-

defence and pre-emptive self-defence

Collective self-defence: for instance NATO Third exeption? Humanitarian intervention and or a responsibility to

protect?

Remains controversial3.8. the law of armed conflict (jus inbello, international humanitarian law

(IHL)):

y International rules governing the conduct of hostilitiesy Sources:

o Most rules are found in multilateral treaties:

Comment [L20]: Nog niets extra over.


22/30

Treaties that state the rules on how hostilities can be conducted in a lawfullmanner. (hague law)

Subspecies of the hague law are those treaties restricting the use ofcertain weapons, rather than banning their production!!(vb. Het

verbod op het gebruik van cluster munitie!)

Treaties that regulate the treatment of non-combatants (geneva law) Supplemented with additional protocols 1 and 2.

Protocol 1 pays a lot of attention to the principle ofproportionality in armed conflicts.

o Even when a state is not party to an IHL treaty, he wi ll be bound to those rules thatnow also reflect customary international law:

The degree to which IHL treaties reflect customary law is controversialo International and internal armed conflict:

Originaly the geneva conventions didnt integrate internal conflicts like civilwar. Even when an foreign country sends army troops on the demand of

another state its considered to be an internal conflict. The additional

protocol II developed the law on conflicts between a state its forces and

dissident forces; but protocol 2 has no enforcement

The distiniction between international and internal conflicts are gettingsmaller. ICTY used the protocol 2 art. 3 , and ICC has jurisdiction over crimes

committed during an internal armed conflict.

Certain weapon conventions on for example landmines also apply on internalconflicts.

ICC statute lists extensively warcrimes commited during internal conflicts. Sothe military commander should treat every internal conflict as if it was an

international conflict.

The central principle of IHL are that belligerents(= oorlogvoerders) do nothave unlimited choice of means to attack the enemy.

The use of certain types of weapons is prohibited: Conventional weapons: it is prohibited to employ weapons

of a nature to cause superfluous injury. Most detailed

modern treaty is CCWC.

Complete ban of cluster munition and complete banof landmines. But the convention on cluster

munition only goes in when its ratified by at least 30

countries, nowadays only 6 countries have ratified.

Nuclear, chemical and biological weapons No specific treaty for the use of nuclear weapons,

but IHL applies also for nuclear weapons

Is it lawfull to use nuclear weapons in extreme casesof self-defence???

Chemical and biological weapons are prohibited=customary law.

Comment [L21]: Betekent da het niet geratif

moet wordne ofzo?


23/30


24/30

Primary duty of occupant is to maintain public order andsafety and to ensure the basic needs of the population.

Property may not be suspended Taxes may be collected, but for new administration of the

territory.

Courts need to work Enforcement

All war crimes are crimes for which there is a universaljurisdiction

Significant role of security council International committee of the red cross:

Plays a crucial role in the practical implementation of IHL Safeguard the health and welfare of POWs (and civilians)

and correspond with their families

Role of protecting power if all parties agree.(= protecting theinterests of all parties)

Impartial go between UN forces:

Only use force in self-defence cases UN missions are bound to IHL Problem of coalitions

4 the right of cooperation

4.1. human rights

y Introduction:o Rights of individuals, natural persons, not legal personso Initially, this was a purely mational matter. This situation changed because of WW2.

In this period there were a lot of violations against human rights. Countries who

violate these rights are a threat.

o The protection of HR became one of the major purposes of the UN.y Universal human rights instruments:

o United nations: Promote respect for human rights: one of the major purposes of the UN (see

art. 1 un charter)

1946: human rights commission was set up under the auspices of theECOSOC

2008: Human rights commission has been replaced by human rightscouncil

1948: general assembly adopts universal declaration of human rights: The universal declaration of human rights Lists major human rights Common standard of achievement


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Provided the foundation for many treaties, universal and regionalones

o Treaties: International covenant on civil and political rights (66) First optional protocol to ICCPR (66) Second optional protocol to ICCPR(89) International convenant on economic, social and cultural rights Optional protocol to icescr (08) Other UN treaties:

Convention on the elimination of all forms of racial discrimination Convention against torture Convention on the rights of the child Convention o the el imination of all forms of discrimination against

women.

No obligations for UN members to ratifyo Regional human intstruments:

Council ofEurope European convention for the protection of Human rights (1950)

Has become a de facto condition for membership of CoE Protects mainly civil and political rights

European social charter (1961)+ revised social charter No obligations for members of CoE to ratify ESC 43 states have ratified ESC Protects mainly social rights

Organization ofAmerican States: American convention on Human rights (69):

No obligation for member states to ratify: 24 states haveratified the ACHR

o Outline of the principal civil and political rights: Right to life Prohibition on torture Prohibition on slavery and forced labour Right to liberty and security Right to fair trail Freedom of thought, conscience and religion Freedom of expression Freedom of assembly and association No punishment without law Prohibition of discrimination

o Outline of the principle eco, social and cultural rights: The right to work The right to social security The right to education The right to take part in cultural life

o Enforcement:


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International mechanisms of enforcement: Reporting mechanism Complaint mechanisms:

Individual complaint procedure Inter-state complaint procedure Collective complaint procedure

Independent inquiry European convention for the protection of human rights: European court of

human rights:

Composition: 47 judges: 1 for each member. Organization:

5 sections: each section counts 5 judges. Each section youhave ind judges, panels of 3 judges and groups of 7 judges.

A grand chamber counting 17 judges. System of compulsory jurisdiction: once a country has ratified the

convention it also has ratified the jurisdiction of the court. ( in

contradiction with the UN, who has no compulsory jurisdiction.)

Competences of this court: Interstate complaint procedure (= 1 state files complaint

against another state)

Individual complaint procedure (= individual against state) Countries have to accept both complaint mechanisms.

Procedure for individual complaints: Recently changed because of the increasing use of the

procedure they had to make it more efficient.

Home come that workload increased the last decade? Thedrop of the wall allowed more countries to apply for

membership of the EU and being member of the EU, youhave the right to use this procedure.

Need to file complaint within 6 months after you used alllocal possibilities.

Rapporteur will examine your complaint en will decide ifcomplaint will be referred to 1 judge, 3 judges or 7 judges

(chamber)

1 judge can only say: your complaint is inadmissible 3judges can say the same as 1 judge but unanimity is

necessary. When no unanimity, the application will be

referred to the chamber. With regard to repetitive cases=

same kind of violations in same country, they are allowed to

take a decision on the merits of the case as well.

Chamber: 1) can decide on admissibility (majority, not

unanimity)

2) can decide on the merits. Procedure to file inter-state complaint:


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Its easier: the chamber does: Admissibility Merits

Judgment is binding, but European court cannot ask tochange specific country laws.

Committee of ministers of CoE can ask European court tointerpret final judgment.

EU can become a party of the ECHR. Committee of ministers of CoE can initiate proceedings of

non compliance in order to make the state concerned

execute the judgment of the ECHR.

European social charter and revised social charter: European committee ofsocial rights.

Also adopted in framework of CoE, protecting social rights. Difference in enforcement no obligation to ratify Composition: no court, but a committee made up of 15 independent

experts, who do not represent the interests of the members of the

CoE.

Consequences of legal value because of use of committee instead ofcourt: a committee adopts conclusions en decisions, but these are

just recommendations which cannot force a country to follow or

implement the recommendations.

2 mechanisms: Reporting: examines the reports of states on how they

implement the provisions of the ESC in law and practices.

Collective complaint procedure: A specific NGO may file complaint against state. What kind of NGOs can file complaint?

Trade unions. Organizations of employers Other NGOs defending social rights.

But! Collective complaint mechanism is optional(only 14 members have ratified)

International covenant on civil and political rights: human rights committee: 65 counties have ratified. UN, not EU!! Composition: committee of 18 experts. Enforcement mechanisms:

Reporting Ind. Complaint Inter- state complaint.

Views (= recommendations)are adopted.4.2. international criminal law

y Introduction:


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o It deals with crimes having an international dimensiono No generally accepted definitiono Term is used to describe those crimes that are of concern for every state.

y Because they have such an impact on the international environment, they developed 2fundamental principles:

o 1) universal jurisdiction: any state may prosecute international crimes, regardless ofwhere the crime has been committed and regardless of nationality.

o 2) individual responsibility: international law places criminal responsibility onindividuals who committed a crime. As a consequence: international law does not

place responsibility on a state.

y International crimes:o Piracy: piracy is an illegal act or detention committed on the high seas for private

ends by a private ship against another ship.

o Slavery: slavery is the exercise of any or all of the powers attaching to the right ofownership over a person and includes the exercise of such power in the course of

trafficking in persons.

o Genocide: genocide is any of the following acts committed with intent to destroy, inwhole or in part, a national, ethnical, racial or religious group, as such:

Killing members of the group Causing serious bodily or mental harm to members of group Deliberately inflicting on the group conditions of life calculated to bring

about the physical destruction in whole or in part.

Imposing measures intended to prevent births within the group. Forcibly transferring children of the group to another group.

o Crimes against humanity: the difference with genocide is that crimes againsthumanity have no intent to destroy a complete group.

o International tribunals: a number of international instruments en entities arecreated: why? Because if states implement those basic principles, there should be noneed for these instruments.Anyway, some countries can be very reluctant to

prosecute those individuals because they have good connections with them.

1) establishment of nurenberg international military tribunal: set up by majoralliances of WO2 as a consequence of a treaty.

2) Yugoslavia tribunal: established by means of a resolution by securitycouncil of the UN. Under chapter 7 of the UN charter why under ch. 7 of the

UN charter? And why not by means of a treaty? Because its binding for the

entire membership. You dont have to wait when all members have signed

and ratified the treaty. At that time many states where unwilling to establish

this tribunal because war was still going on.

3) Rwanda tribunal: again done by security council under chapter VII for thesame reasons as the Yugoslavia tribunal, because Rwanda was unwilling to

prosecute these persons.

Others are: sierra leone, Cambodia, Lebanon. These are mixed tribunalsbecause these special courts where made up of international judges and

national judges. They apply international and national laws.

Sierra Leone:


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not established under 7, but under a treaty between UN andSierra Leone.

Jurisdiction against individuals Can move to other countries because of Charles Taylor. The

court was moved to den haag because of security reasons.

Cambodia: Treaty between UN and Cambodia

Lebanon Originally they had the idea to establish the tribunal under a

treaty between UN and Lebanon. That treaty was signed, but

not ratified by Lebanon (because there was no majority)

than the security council established it under Chapter 7.

Jurisdiction of this court: can prosecute all personsresponsible for the murder of the prime minister and other

prominent persons.

International criminal court (ICC): no longer an ad hoc tribunal, but apermanent tribunal.

Created by the treaty of rome. Based in den haag. Jurisdiction with regard to the following crimes:

Genocide, crimes against humanity, war crimes Crimes of aggression

Can only exercise jurisdiction of the state in which the crimewas committed if that state has ratified the statute. Or if the

state from where the person who committed the crime

comes is party to ICC.

If UN security council under Ch. 7 refers alleged crimes tothe ICC.

Usa, Russia, india, china, Syria, Libya are unwilling to ratifythe statute.

2 situations have been referred by the UN security council toICC:

Darfour libya

exam:

y Victor Kuchea: he finds that there has been a violation on his human rights. To where can hego

Comment [L22]: Tegenstrijdig met wat er hie

juist boven staat.daje het moet ratifyen


30/30

Documents

Sam en Vatting Introduction to International and European Law