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