Subjects of international law - I

Transcription

1 Subjects of international law - I States International organizations Peoples Individuals and private investors NGOs (?)

2 Subjects of international law - II Traditional theory: States are the only subjects of international law Arangio-Ruiz theory of potentati: international law subjects are all independent and sovereign organizations Contemporary theories: a) the modern doctrine of international subjects; b) the theory of international actors

3 The State in international law Arangio-Ruiz doctrine of effectiveness: the State in the sense of international law is any political organization able to display effective control over a given territory and a given population, independently and at the exclusion of other political organizations Crawford s theory: the phenomena of creation, continuation and extinction of the international legal personality of a State are regulated by international norms 3

4 The formation of States International rules applicable in processes of State formation: - the principle of effectiveness (1933 Montevideo Convention) -the prohibition to use force (TRNC) - the principle of self-determination of peoples (Southern Rhodesia, bantustans) -the principle of territorial integrity (Scotland?)

5 Hall s International Law (1880): «the marks of an independent State are that the community constituting it is permanently established for a political end, that it possesses a defined territory and that it is independet of external control» 1933 Montevideo Convention: a) a permanent population; b) a defined territory; c) an effective government; d) a capacity to enter into relations with other States (art. 1 of the Montevideo Convention on the Rights and Duties of States) 5

6 Territorial Sea: Sea from the baseline to the 12 mile limit Contiguous Zone: Another 12 miles out (24 miles from baseline) EEZ: A total of 200 miles from the baseline Continental Shelf: max. 350 miles or 100 miles from the 2,500 metre isobath Internal Waters: State has full sovereign authority Territorial Sea: State has full sovereign authority Contiguous Zone: Certain limited right to protect territorial sea. EEZ: Exclusive rights to resources Continental Shelf: Exclusive rights to self resources Platia 6

7 Role of Recognition EVANS = recognition is a unilateral act of a State by which it acknowledges [ ] the facts which constitute an international person, the State, or its government. Recognition serves two purposes: the recognizing State accepts the status of the entity it recognizes, and the recognizing State establishes relations with the other State 7

8 Declaratory theory of recognition Montevideo Convention, art 3 The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. Constitutive theory of recognition 8

9 Continuity and Termination of the Existence of a State Changes in the territory dissolution of a State (e.g. USSR, Czechoslovakia) merger of one State with another one (e.g. in 1990 North and South Yemen merged to form the Republic of Yemen) Incorporation by one State of another one (e.g. the incorporation of the Federal Republic of Germany of the German Democratic Republic) Rules regarding the succession to treaties Membership to international organizations 9

10 International organizations - I The role of IOs in promoting the development of international law International Law Commission s Draft Articles on the Responsibility of International Organizations (2011) Article 2(a): «international organization means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;» 10

11 International Organizations 11

12 International organizations - II The legal personality of IOs: Art. 104 UN Charter: "The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes The 1949 ICJ advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations The concept of functional personality The 1986 Convention on the Law of the Treaties between IOs and IOs and States The current ILC codification on the responsibility of international organizations (2011 Draft Articles) Article 3: «Every internationally wrongful act of an international organization entails the international responsibility of that organization 12

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14 General Assembly Membership: All members of the UN (Art. 9); one country one vote (Art. 18) Powers: Discussion & Recommendation: may discuss any questions or any matters within the scope of the present Charter and make recommendations on same (Art. 10) Appointment Role: Financial It may discuss but Recommendation e.g. non-permanent Role: not recommend on s are not binding members of the Approve a situation being on member states Security Council, overall considered by (Art. 10) members of the budget (Art. Security Council Economic and Social 17) (Art. 12) Council (Art. 18); along with Security Council, ICJ judges (Art. 4 of ICJ Stat.) 14

15 The General Assembly The GA has a general competence (art. 10 and art. 1) All UN Member States can sit in the Assembly with a delegation of maximum five representatives (art. 9, par. 2) The works and activities of the Assembly are managed by six commissions which formulate and propose draft resolutions to the plenary: 1st Commission (political and security affairs) 2nd Commission (economic and financial affairs) 3rd Commission (social, humanitarian and cultural affairs) 4th Commission (decolonisation) 5th Commission (administrative and budgetary affairs) 6th Commission (legal affairs) Under art. 13(1)(a) the GA is also responsibile for the progressive development of international law and its codification International Law Commission (ILC) 15

16 Security Council Peace and Security Powers Membership: 15 members, 5 of whom are permanent (Art. 23) Powers: Council Resolutions are binding under Art. 25 Chapter VII: Council declares existence of any threat to the peace, breach of the peace, or act of aggression (Art. 39) Chapter VI: investigate disputes and make recommendations to resolve them Appointment Role: e.g. along with General Assembly, ICJ judges (Art. 4 of ICJ Stat.) Use of Force (Art. 42) Economic Sanctions (Art. 41) 16

17 The Security Council Art. 24(1) UN Charter: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf«17

18 ECOSOC (Economic and Social Council) It is composed of 54 members elected for a three-year term Article 61 UN Charter: "1. The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly. [ ]» It is responsible for international cooperation in the economic and social fields It has instituted important subsidiary organs, mainly in the field of human rights protection, such as the Commission of Human Rights It has also instituted regional economic commissions, including the UNECE, which has taken up an important role in the promotion of international environmental law 18

19 International Court of Justice (15 judges) Advisory Opinions (requested by UN organs) Contested Case (between states only) Effect of Decision: have no binding effect, though have moral force Effect of Decision: binding, final and without appeal (on the state parties) 19

20 Individuals, private investors, peoples Opposing doctrines: the individual and peoples as mere beneficiaries of international rules imposing obligations upon States; the individual and peoples as addressees of actionable rights The principle of self-determination of peoples The right of action of individuals before international human rights tribunals (European court of human rights, Interamerican court of human rights) The right of action of private investors before ICSID arbitral tribunals 20

21 NGOs - I Globalization has seen the emergence of an international public opinion, whose representation is mainly conducted by NGOs Role in the elaboration of multilateral conventions The importance of NGOs lobbying activities: the s.c. corridors diplomacy The negotiation of the Rome Statute 21

22 NGOs - II Art. 71 UN Charter provides for the participation of NGOs in the meetings of ECOSOC (Economic and Social Council): The Economic and Social Council may make suitable arrangements for consultation with non- governmental organisations which are concerned with matters within its competence. [ ] Consultive status of NGOs (ECOSOC resolution 1996/31): General Special Roster 22

23 NGOs - III The participation of NGOs in judicial proceedings NGOs role as applicants in proceedings before the European Court of Human Rights (members rights and legal interests must be affected) NGOs role as amici curiae in WTO dispute settlement 23