WEEK 1 (2-4 MARCH) ---- INTRODUCTION TO INTERNATIONAL LAW ---- International Law Prof. Attila Massimiliano Tanzi A.A

Transcription

1 WEEK 1 (2-4 MARCH) ---- INTRODUCTION TO INTERNATIONAL LAW ---- International Law Prof. Attila Massimiliano Tanzi A.A

2 LECTURE 1 INTRODUCTION TO THE COURSE

3 THE PROFESSOR Attila Tanzi, Ph.D., is Chair of International Law at the University of Bologna and Visiting Professor at the Queen Mary University of London ( ). He has given his advices to companies, governments and international organisations on international law issues, and he is currently a Member of the Permanent Court of Arbitration ( ) and a Conciliator at the OSCE Court of Conciliation and Arbitration. He is Chairman of the Implementation Committee of the 1992 UNECE Water Convention (2013-ongoing). He has been a number of time a member of the Italian delegation to the General Assembly and other organs of the United Nations. He has published in English, Spanish, French and Italian on various issue of international law, in particular State responsibility, foreign investment law, environmental law, the law of international organisations and jurisdictional immunities.

4 THE COLLABORATORS Dr Gian Maria Farnelli: Ph.D., post-doctoral fellow, University of Bologna. Fields of Expertise: international law of the sea; jurisdictional immunities; international environmental law; international terrorism. Ms Carolina Cavallo: tutor, legal practitioner. Fields of Expertise: international criminal law, universal jurisdiction. Mr Luigi Sammartino: Ph.D. student, University of Florence; Political Sciences tutor, University of Bologna. Fields of Expertise: international criminal law, international humanitarian law, international economic law, alternative dispute settlement. Ms Eleonora Branca: Ph.D. student, University of Verona. Fields of Expertise: peace operations, international criminal law, transitional justice. Ms Ludovica Chiussi: intern at the Italian Ministry of Foreign Affairs. Fields of Expertise: human rights law; business & human rights, international environmental law. Dr Paolo Turrini: Ph.D., post-doctoral fellow, University of Trento. Fields of Expertise: history of international law; treaty law; international environmental law; international trade law. Dr Sondra Faccio: Ph.D., research fellow, University of Verona. Fields of Expertise: international investment law, international energy law, international contracts, international commercial law.

5 THE COLLABORATORS Dr Federica Cristani: Ph.D., post-doctoral fellow, Pázmány Péter Catholic University of Budapest. Fields of Expertise: international economic law; international investmentl law; economic State-building. Mr Diego Favero: tutor, legal practitioner. Field of Expertise: international protection of cultural assets. Mr Francesco Cunsolo: LL.M., tutor. Fields of Expertise: human rights law; international cooperation. Ms Giorgia Galli: legal practitioner. Fields of Expertise: international criminal law; human rights law; business & human rights. Ms Irene Pozzi: legal practitioner. Fields of Expertise: international investment law, intellectual property law, cyberlaw. Ms Maria Sole Veruso: legal intern, Court of Appeal of Bologna. Fields of Expertise: international investment law. Ms Maria Eleonora Benini, LL.M., legal intern, Court of Appeal of Milan. Fields of Expertise: international investment and commercial arbitration, judicial settlement of dispute. Dr Maria Chiara Marullo: Ph.D., post-doctoral fellow, University Jaume I. Fields of Expertise: international criminal law, universal jurisdiction, business & human rights.

6 COURSE CONTENTS The three fundamental legal functions on which the legal dynamics of the international community is founded law-making, law-determination and lawenforcement will be analysed within the contemporary social context. International law will be presented in its different dimensions: as a tool in the hand of international actors able to handle change in the international society and safeguard stability and predictability of international legal relations; as common language useful in reaching consensus or, at least, peaceful disagreement'; as key to understanding the reality of contemporary international relations. Bringing together different perspectives, the it will be shown how international rules, while made by governments and mostly addressed to them, can be of great relevance to private actors and to their interests.

7 COURSE CALENDAR 1. Introduction to International Law: historical and social background (2-4 March). 2. Those who make, implement and breach International Law (9-11 march). 3. Sources of International Law (16-18 March). 4. The Law of the Treaties (23-25 March). 5. Assessment and Application of International Law (30 March-1 April). 6. Easter Holiday (6-8 April). 7. International Responsibility (13-15 April). 8. Sanctions in International Law: Coercion and the Use of Force (20-22 April). 9. International Courts and Tribunals (27-29 April). 10. International Investment Law (4-6 May). 11. International Investment Law (11-12 May) & Concluding remarks (13 May).

8 READINGS/BIBLIOGRAPHY Testi M. D. Evans (ed.), International Law, Oxford University Press, Oxford, 2014 (Parts II, III, IV para. 11, V para. 15, VI para. 20, VII para. 24). A. Tanzi, F. Cristani (eds.), International Investment Law and Arbitration. An Introductory Casebook, CEDAM, Padova, Useful readings and materials can also be found in: I. Schraffl, Dizionario giuridico inglese-italiano, Giuffré, Milano, The course only applies for attending students. Only under exceptional circumstances, and with a specific programme individually agreed upon, not attending students will be allowed to take the exam.

9 OFFICE HOUR Professor Tanzi and his collaborators will receive students every Monday at Palazzo Malvezzi, Sala Docenti (ground floor), 4.00 PM. For further information, Please, refer to Professor Tanzi s website: zi%40unibo.it

10 LECTURES 2-3 HISTORICAL AND SOCIAL BACKGROUND OF INTERNATIONAL LAW

11 HISTORY OF INTERNATIONAL LAW In Ancient Times The concept of «international law» was different. Societies were organised in a «vertical way», i.e. a dominant subject dictated his own law upon other peoples and nations. That was the case of the Roman ius fetiale and the Medieval Respublica Christiana.

12 HISTORY OF INTERNATIONAL LAW The genesis of international law is conventionally dated back to 1648: the Treaties of Münster and Osnabrück, also known as the Peace of Westphalia, ended the Thirty Years War between the Pope, aided by the Catholic princes, and the Emperor, supported by the Protestant princes. The war ended with a squaring: unable to define who should rule the world, the Pope and the Emperor recognized to the newborn national States their respective sovereignty on a formal equality base. In the same period, a number of scholars, such as the Dutch Hugo De Groot (also known as Ugo Grozio) theorised a world based on a number of sovereigns, all of which formally equal. In other words, Hugo De Groot proposed an horizontal social model, based on the superiores non recognoscentes principle, rather than hegemonic like the imperial one.

13 HISTORY OF INTERNATIONAL LAW Such situation is perfectly represented by the Congress of Vienna of 1815: after the hegemonic attempt by Napoleon, European States gathered together in order to portion territories. The whole negotiation was nonetheless based on the idea that each Party was formally equal to the other notwithstanding the substantial differences in political, economic and military power. The Congress of Vienna demonstrates the then Members of the international community, i.e. the European States and a limited number of their partners (USA and the Ottoman Empire), shared the same values.

14 HISTORY OF INTERNATIONAL LAW Free competition; Equality; Reciprocity; Customary law.

15 HISTORY OF INTERNATIONAL LAW Such a sharing of values and rules was hardly tested with the Russian Revolution in 1917: the birth of a Socialist State jeopardised the liberal foundation of the international community. Shortly after, the attempt to break the liberal balance by the Nazis imperialistic scheme was repelled. As such, the egalitarian model was finally consecrated in the 1945 UN Charter.

16 HISTORY OF INTERNATIONAL LAW Nonetheless, decolonisation and the Cold War ( ) put again at risk the liberal value system. Indeed, most of the newly formed States emerged from decolonisation were inspired by the Soviet value system. Renegotiation of traditional international law and the theory of sources. A wide use of Convention of codification. A new protection of collective interests. A so-called New International Economic Order, based on the principle of permanent sovereignty of a State over its natural resources. Mutual vetoes in the UN Security Council.

17 HISTORY OF INTERNATIONAL LAW The Fall of the Berlin Wall (1989) caused international law to withstand a renewal in its liberal as well as institutional dimension. The reaction of the UN Security Council to the Iraqi invasion of Kuwait in 1990, and the establishment of the World Trade Organization ( WTO ) in 1994, are both examples of such renewal.

18 HISTORY OF INTERNATIONAL LAW The enthusiasm towards international law quickly vanished during the Nineties. Three events contribute to such dissolution: The Balkans War ( ). The Rwanda Genocide (1994). The NATO unilateral intervention in Kosovo (1999). Sebastião Salgado

19 HISTORY OF INTERNATIONAL LAW The beginning of the XXI Century is characterised by a return of unilateralism and voluntarism in international relations. Examples of such an approach are: The Afghani War (2001). The Second Iraqi War (2003). The Second South Ossetia War (2008). The Crimea War (2014).

20 SUMMING UP Features of classical international law ( ): All States are formally equal. The international community includes few members: European States and their nearest partners (USA, Ottoman Empire). International law aims at coexistence among States. States share the same values. As such, few multilateral agreements exist, since States mostly refers to customary law and bilateral treaties. Features of contemporary international law (1945 today): All States are formally equal. New international subjects (newly born States, individuals, international organisations, etc etc). International law aims at cooperation among States. States do not share the same values. As such, they conclude a number of multilateral treaties. Some fundamental values of the international community are recognised (ban on torture, ban on the use of force, principle of self-determination, etc etc).

21 DIFFERENCES BETWEEN DOMESTIC LAW AND INTERNATIONAL LAW International Legal Order Domestic Legal Order Lack of an international normative body; Lack of international compulsory jurisdiction; Lack of an international body in charge of coercion. Offsetting trend: UN Security Council. Summing up: lack of a structure designated to all of the phase of the normative process. Presence of a domestic normative body; Presence of domestic compulsory jurisdiction; Presence of a domestic body in charge of coercion. Summing up: presence of a structure designated to all of the phase of the normative process.

22 THE NATURE OF INTERNATIONAL LAW International Law as Normative Process (New Haven School) A Set of Rules (classical perspective)

23 THE PROCESS OF INTERNATIONAL LAW The normative process of international law includes the following phases: Formation, or law-making. Transformation. Renewal. Assessment. Implementation. It pertains to every kind of rule, namely: Production rules. Organisation rules. Material or substantial rules.

24 INTERNATIONAL LAW AND SOCIAL SCIENCES «Policy considerations, although they differ from rules, are an integral part of that decision making process which we call international law; the assessment of so called extralegal considerations is part of the legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law neutral, for even such refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics» HIGGINS, Integrations of Authority and Control: Trends in the Literature of International Law and Relations, in WESTON, REISMAN (eds.), Toward World Order and Human Dignity: Essay in Honor of Myres S. McDougal, New York, 1976, p. 85

25 INTERNATIONAL LAW AND SOCIAL SCIENCES «[i]nternational law and international politics cohabit the same conceptual space. Together they comprise the rules and the reality of the international system, an intellectual construct that lawyers, political scientists, and policymakers use to describe the world they study and seek to manipulate. As a distinguished group of international lawyers and a growing number of political scientists have recognized, it makes little sense to study one without the other» SLAUGHTER, International Law in a World of Liberal States, in European Journal of International Law, 1995, pp , p. 503

26 Legal certainty? Interpretative relativity Temporal relativity Uncertainty during implementation

27 Judicial Sanction International Legal Order Social Sanction

28 THANK YOU! SEE YOU NEXT WEEK!