PIL
International Law vs Global Law
Global Law
International Law
Public International Law
Private International Law
Evolution of PIL
17th century - States
Post WW2 - United Nations
United Nations UN
Prohibition of War
Human Rights Protection
51.º UN Charter - Right to Self-defense
Authorization from the Security Council SC
Preemptive Self-Defense
9/11 - President Bush announced a U.S. policy of preemptive self-defense against Iraq as the U.S. thought Saddam Hussein was acquiring weapons of mass destruction WMD
SC Permanent Members P5 - China, USA, Russia, UK, France
Blue Helmets
Genocide
Paradigm Shift - "we the peoples"
The individual as a subject of International Law
International Law vs Municipal Law
Sources - article 38 of the ICJ Statute
38.º 1. b) Custom
38.º 1. a) Treaties
38.º 1. c) General Principles of Law
38.º 1. d) Judicial Decisions and Writers
38.º 2. Other possible sources
Vienna Convention
Making Process
Reservations
Entry into force
Application
Amendment and modification
Interpretation
Invalidity, termination and suspension
Dispute settlement
Subjects of International Law
Concept
States
Sui generis territorial entities
Individuals
International Organizations
International Law of Business
International Economic Regulation
Private actors, cross border transactions and multinational companies
Law, business and globalization
Conflict Resolution
Settlement of disputes by peaceful means
International arbitration
International Courts
International Court of Justice
International Criminal Court ICC
Economic Migrants vs. Refugees
Monism vs Dualism
Dualism
Legal Pluralism
Monism
Global movement of transforming customary law into treaty law - legal certainty - Guatemala v Honduras - fishing in the river - practice + legal obligation
Sovereignty - absolute and perpetual power of a state, the supreme authority within a territory, the authority of a state to govern itself or another state
Protecting state sovereignty
2 systems - Public and national law are completely separated from each other
International law - product of the states will - treaties
International law depends on the willingness of the state, since it need a new law inside the country
If we live in a completely separated international law system, its only theoretical since laws have to be applied locally to have an actual effect
Constitutional law is above international law
Examples - European directives - they need to be transposed to national law (although there are theories about direct application); USA - International laws need an act of transposition
Systematic Unit
Theoretically more international law friendly
International laws are automatically part of the domestic law
Typical European system
Fundamental Principles of Law are always above national law
Multilevel Systems
The main concern is the norm itself, not its source
Connected to the idea of global law
ius cogens ?
the doctrine is divided, Professor Matias is in favor of its inclusion
democracy is not part of the ius cogens
"fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted"
Vienna Convention
A practice done overtime which is believed to be legally permitted - hard to prove
subsidiary
Principles of Proportionality and Primacy
70s - states only 80s - includes international organizations
Treaties vs. Agreements
Treaties have a more complex procedure of consent. Agreements are simpler, they can be concluded by ambassadors, depending on the countries constitutional requirements
Agreements don't fall under the Vienna Convention
Portugal - the PR has to sign all the international agreements; USA - the ambassadors' signature is enough, as the USA Constitution allows for ultra simplification of agreements
Most of the rules of the Vienna Convention are flexible - flexibility and collective compromise
Oral Treaties
Portuguese Constitution - treaties and agreements must be written
They are recognized by the Vienna Convention does not apply to them
No Reservations - The USA won't ratify due to the crime of aggression
ius cogens
recognizes ius cogens - any clause that violates it is void
2.º 1. a) A Treaty is defined by a set of characteristics, not by the name of the document
Negotiations
The negotiation is essentially political and it is deeply related to sovereignty, reason why it should not be limited by international law
Requirements to be a state
People
Territory
Recognition
Political Power
Self-determination
When the attack is not undergoing but it is possible to identify acts that show it will occur - unilateral actions by a state to remove a non-imminent security threat
the parts need to have a legitimate interest on the issue, otherwise the case is refused
High commissioner for human rights
has the power to report any concerning situation to the SC
Right to veto
Lisbon Treaty - the European Charter of Human Rights (Council of Europe) became part of the EU Treaty
Europe - 2 layers of human rights protection - ECHR and ECJ
Human Rights - Africa and Asia - there are conventions but no enforcement; America - 1 court
European Court of Human Rights
European Court of Justice
Council of Europe
Principle of exhaustion of internal means
European Union EU
Does not substitute the national decision; will order the courts to revise their decision - the decisions are binding, they go back to inferior instances out of respect between judges
Not an appeal from national courts
Different decision since the ECJ's decision will supersede national courts' because of the EU supremacy
Turkey's Agreement
Mutual political declaration - not a treaty nor an agreement
the court cannot revise it, does not follow under the jurisdiction of the ECJ
agreement or treaty - illegal since it goes against the right to seek asylum
it gives a person who is seeking asylum the right to have an individual interview where they explain their political situation
Protectionism vs. Liberalism
Global Economic Integration - trend towards liberalism
World Trade Organization WTO
very limited powers
why states need to keep doing agreements
can only influence the states to engage in new treaties or advise certain clauses
International Monetary Fund IMF
TROIKA
doesn't have the power to intervene in a country without it being requested
European Commision
European Central Bank ECB
International Monetary Fund IMF
only takes cases by states - states must specifically accept the jurisdiction of the ICJ in that specific case on an argument of sovereignty
WW2 Genocide highly motivated the human rights protection movement
Consists of - homicides; massive rapes; isolation; surgical means to stop reproduction
Office of the Prosecutor
Preliminary assessment of the independence of the national courts; the court can step in even before the national courts
Economic Migrants - "movement of people from one country to another to benefit from greater economic opportunities in the receiving country"
Refugees - page 6 of the Refugee Convention, 1951
As long as later, after ratification, you are able to comply with the treaty, you are complying with article 18
The state is not already bound after signing. It is bound after ratifying it
Article 18 - does it impose an obligation on states to pursue internal procedures for ratification?
The end of the procedure could be the denial of ratification. The question is if the states are obliged to start the procedure - Professor Matias things that good faith imposes that
What happens if a state refuses ratification? - article 18 ceases to apply
Can the ratification be tacit? - we need to check on the internal constitution what the internal procedure for ratification can be tacit - highly unlikely, the professor does not know of any. However, the right answer for that question is depending on the national law
You will not comply with a certain part of the treaty
Signature ad referendum
The representative signs but states that the competent authorities of their country need to confirm the act. It is therefore only binding after the confirmation of those competent authorities
Phases
Negotiation
Conclusion and entry into force
Adoption of Text - the parts recognize the negotiation has ended
Authentication of Text - the text is final, the states must sign (or not)
Consent (ratification) - free act, it is important to preserve the President's power.
Reservations
Entry into force and provisional, application of treaties
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Signature ad referendum (authentication) - the representative declares that the text in the one that he negotiated. However, it needs to go through an internal process because the person negotiating most of the times does not have the power to bind the state
Full powers - does not mean binding powers
Ratification - The Treaty comes to the President. It is the Government who initiates the procedure. The Government alone does not have powers to bind the state - the parliament needs to approve and the president needs to ratify the treaty
Also known as anticipatory self-defense
Some scholars justify it with a customary right