Public International Law

Public international law

The collection of rules that regulate the relations between states, all of which are based on state acceptance
i.e. aims for coexistence, cooperation, equality, stability between states that are independent but interdependent

Determining the competence of each international actor

Ratione territorii, ratione temporis, ratione personae, ratione materiae

Ratione territorii

“by reason of place” - is this within the territory that the court has authority?

Ratione temporis

“by reason of time” - is this within the period of time that the court has authority?

Ratione personae

“by reason of person” - do the courts have authority over these legal / natural persons?

Ratione materiae

“by reason of subject matter” - does the court have authority to hear the case based on its subject matter?

What the ICJ applies

international conventions
international custom
general principles of law
judicial decisions and teachings of highly qualified publicists of many nations

International customary law

universal obligations arising from established, consistent state practice (objective element) and the belief that the action is legally required (opinio juris, subjective element)
it is not written down, so states may disagree on how it is applied and followed

Persistent objector rule

states are not bound if they persistently object to this law during its formation

General principles of international law

international law derived from principles of law that are widely recognised across major legal systems
used to close the gap when there is no treaty or customary rule
the ICJ can apply a ruling based on this even to a state that does not have the principle of law in its own domestic legal system

ex aequo et bono ICJ

The ICJ will rule “according to what is good and just” rather than according to the law if both parties consent

Treaty definition

agreement between states where all members legally bind themselves

Other name for treaty

convention, international agreement, general act, charter, statute, declaration, covenant

Jus cogens

“preemptory norms”: universally-accepted principles of public international law
treaties that try and bypass them are null and void (by the Vienna Convention Article 53)

How a treaty is acceded to

states cannot invoke a conflicting domestic law to avoid a treaty obligation

• signature: not binding

• definitive signature: binding

• ratification: binding. A formal step (often involving parliamentary approval) where a state officially notifies other parties it is bound.

• accession: binding. If allowed, a state can join a treaty after the initial signing

Internal self-determination

a people's right to pursue political, economic, social, and cultural development within an existing state

External self-determination

a people’s right to determine international status, including independence, association, or integration (often in post-colonial or remedial contexts)

Sovereignty

exclusivity: lack of other authorities in the same territory
effective: real achievement of power
inalienable: cannot be given to other states

1648 Peace of Westphalia

replaced feudal, religious, and imperial power structures with a system of equal, independent nation-states
states are the most dominant legal entity, all non-state actors derive their legal status from states

Attribution of powers held by international organisations

they may only act within the limits of powers explicitly assigned to them by states in a founding document (treaty, charter)

Implied powers of international organisations

presumed to have the necessary powers to achieve its objectives, even if they are not written explicitly
presumption is sometimes needed for ICJ interpretation

Actors in international law

state, supranational organisation, international organisation, NGO, transnational organisation (global corporation), individual

UN: founding date, goal

1945, no more world wars

UN: founding document

UN Charter: a multilateral treaty, organises the rights & obligations of member states, its purposes & principles, its functions & limitations

UN Charter Article 2

principles

• sovereign equality

• everybody has obligations so everybody can have rights

• no arguments that threaten international peace & security or justice

• no threats or uses of force against states

• everybody helps the UN in its actions e.g. no assistance for states under preventative/enforcement action

• UN will impose principles upon non-member states if they are threatening international peace & security

• UN cannot intervene in domestic matters

UN Charter Article 4

UN Membership

• membership open to any peace-loving state that accepts the obligations

• UN Security Council recommends a prospective member, then General Assembly accepts or dismisses

UN Charter Article 51

self-defence

members can defend themselves / each other in response to an armed attack in the time it takes for the UN Security Council to decide on what to do

UN: principal organs

General Assembly
Security Council
Economic & Social Council
Trusteeship Council
Secretariat
International Court of Justice

UN General Assembly

parliamentary body of the UN
all member states represented & have 1 vote

UN General Assembly resolution

a formal, written proposal adopted by a majority of members to express the collective will / opinion

International Covenant on Civil & Political Rights

A UNGA treaty, adopted 1966
part of the International Bill of Human Rights
guarantees rights such as the right to life, freedom of speech, freedom of religion, fair trials, and privacy

UN Security Council powers

determines the existence of any threat to / breach of peace
can employ measures that don’t involve armed forces, and others if deemed necessary

UN Security Council members

5 permanent members, all of whom have veto rights: US, UK, France, Russia, China
10 temporary members: UN members on a rotating basis

UN Security Council resolutions

at least 9 members agree & no veto → resolution binding on all UN members

International Court of Justice acceptance of rulings

jurisdiction dependent on the state accepting it, which can also be withdrawn

Means of dispute resolution in public international law

• diplomacy

• arbitration (parties elect a third party to make a binding decision)

• ICJ (though no binding precedent)

• specified dispute settlement bodies (e.g. International Tribunal for the Law of the Sea)

Council of Europe: founding date & focus

1948, focused on human rights, democracy, rule of law

Council of Europe: sub-groups

has European Court of Human Rights & European Social Committee
not a part of the EU

History of EU Treaties

• 1952 ECSC (Treaty of Paris)

• 1957 EEC, Euratom (Treaty of Rome)

• 1987 Single European Act

• 1992 Treaty on the European Union (Maastricht Treaty)

• 1997 normalising majority voting (Treaty of Amsterdam)

• 2001 Charter of Fundamental Rights (Treaty of Nice)

• 2004 EU constitution failed

• 2009 Treaty on the Functioning of the EU (Treaty of Lisbon)

Copenhagen criteria

standards for membership

• stable institutions that guarantee democracy, rule of law, human rights for population

• market economy and ability to cope with competitive pressure of the EU

• ability to implement all EU law

EU membership process

1. all members must accept the state as a potential member

2. preparations to implement all the EU law

3. all EU members need to sign and ratify the agreement that the state is a new member after preparations

List of EU institutions

European Commission, European Council, European Parliament, Council of the EU, Court of Justice, European Central Bank

All listed EU institutions are headed by…

a president

European Council

defines the EU’s general political direction
members are the heads of state/government (whoever represents the nation’s political power)

Council of the EU

legislative power
members represent their nations
they are ministers of relevant topics

European Commission

executive power
does the bulk of EU administrative work, 32 000 staff
members include one commissioner per member state, not representing their nation, appointed by EP

Court of Justice

judiciary power
as the EU operates on a common law system, the court makes binding interpretation
has limited direct actions (to enforce judgement?)

European Parliament

legislative power
approves budget, supervises European Commission
720 members, they represent citizens of the EU rather than their state, elected directly

European Central Bank ECB

executive power
manages national bank cooperation, EU monetary policy, price stability

Where EU has exclusive competence

customs, competition rules, monetary policy

Where competence is shared between EU and domestically

internal market, consumer protection, labour, environment

Where EU only has supporting competence to domestic law

health, culture, employment, education

Principles for EU competences

principle of conferral, of subsidiarity, and of proportionality

Principle of conferral

to act only within the power granted by member states

Principle of subsidiarity

to act in non-exclusive areas (shared competences) only if member states cannot effectively achieve the goal otherwise

Principle of proportionality

to not act beyond what is necessary to achieve treaty goals

Spillover

a secondary goal needs to be achieved in order to complete the primary one

Spillover in EU context

spillover can mean that while trying to achieve one goal, the EU is extended into more and more issues
e.g. completion of the single market needs harmonisation of taxes

Spillback

the achievement of one goal is prevented by a blockage in another area

Spillback in EU context

EU might be unable to achieve one goal if it does not have the competence over another area that is necessary to achieve it

EU ordinary legislative procedure

European Commission proposes a law → European Parliament & Council of the EU approve → EU legislation

Hierarchy of EU legislation

lex superior: primary > secondary law

EU primary law

Treaty of the European Union TEU
Charter of Fundamental Rights of the EU
Unwritten general principles

EU secondary law

regulations (immediately, directly binding on all legal subjects)
directives (need to be transposed into national law to be binding)
decisions (binding only to whom it is addressed)

Can an individual company invoke EU law against a member state?

Van Gend & Loos 1963
Dutch state tried to impose a customs duty on a company. Company refused because of EU law preventing this.
CJEU ruled in favour of the company

Can an individual invoke EU law against a member state?

Costa v. ENEL 1964
Italy nationalised electricity into a monopoly. Costa refused to pay the bill on the basis that EU law outlawed state monopolies.
CJEU ruled in favour of Costa. This established the lex superior: EU law > national law

Can an individual invoke EU law against an individual company?

Defrenne II 1976
CJEU ruled that yes they can, companies must comply with EU law

EU principle of primacy

in case of conflict: lex superior is EU law > national law, including constitution
legislative: member states must not enact rules contradicting EU law
executive & judiciary: must interpret national provisions in line with EU law

EU principle of direct effect

EU rules to be directly applied by domestic courts and authorities if they are unconditional and sufficiently precise.
this principle is always applicable in vertical cases (private person/company v. state)
principle not always applicable in horizontal cases if it concerns a directive

EU principle of mutual recognition

Cassis de Dijon 1979: established the principle of “mutual recognition” -goods lawfully produced and marketed in one EU Member State must generally be allowed in all others.
Member states can only restrict the free movement of goods through national law standards if they are “necessary” (e.g. for public health, for consumer protection)

Consequences of free movement of goods, services, people, capital

• goods: prohibition on restrictions to trade of goods

• services: prohibition on restrictions to trade of services

• people:

• capital: effectively requires a common currency & monetary policy

Negative integration of the EU

integration of trade & markets by removing national barriers (tariffs, regulations) often driven by court rulings

Positive integration of the EU

integration of trade & markets by establishing common EU-wide policies and institutions, often driven by EU directives

• minimum harmonisation can be enforced (an “at least” rule, leaving nations the option to go above and beyond)

• full harmonisation can be enforced (every nation must obey the exact rule)