I.B.D.

International Organization law

Prof. Marco ScarpatiUniversity of Parma

A.Y. 2013-2014

Marco Scarpati

Degree in law in Parma University Professor of International Law in Parma

University Prof. In International Human Rights Protection

(spec. In Child protection) Barrister President of ECPAT Italia marcoscarpati@yahoo.it

Text book

for who will attend the lessons

From page 3 to page 305

Our course

Introduction on International law Basic rules of International Organization law Working groups on International economic

law – millenium development goals Reports on working groups Discussion Examination on papers and part of the book

exams

13 dicembre 2013 ore 9.00 (special for students will attend the lessons)

Winter 16 and 31 january 2014 9.00Spring 11° april 9.00Summer 6° june, 20° june 9.008 september 2014 9.00

In a normal world….

Meritocracy and equal opportunities

In our country

Choose your job: maybe to study is not the best criterion…

Growth rate

Life expectancy

Children mortality rate

statistics

statistics

World population

World by population

World population density

World popolation density

Population and development

10 busiest air travel routes of 2012

Population by age group

Better places to born

Hunger map of the world

Dimension of countries for size of GDP

China GDP rate

Economic world

World GDP growth 2010

democracies

Child poverty rates

Diversity map

Diversity Tollerance map

Right to sexual orientation

Sexual orientation tollerance

Security treaty map

Felt beloved

Condition of mothers

Paid maternal leave

Number of researchers per million inhabitants

Attitude welcome foreigners

Law system

Majority religion by country

Gepolitical problems

International Law

International law is a body of rules that govern relations between states, functioning of international institutions/organizations and rights and duties of individuals.

International law covers every aspect of relations between States from aviation to Xenophobia and beyond.

However, we will focus on those aspects of international law that are of direct relevant to international Organizations and Int. Economic Law

A short definition

International law is the law of the so-called “international community”.com·mu·ni·ty n., pl. com·mu·ni·ties. Abbr. com. 1. A group of people living in the same locality and under the same government. 2. A group of people having common interests: the scientific community; the international business community. 3.a. Similarity or identity: a community of interests. b. Sharing, participation, and fellowship.

Subjects of International law

Members of the international community are subjects of International LawSubjects have international legal personality: capacity to have rights and duties under international law.Objects of international law do not have rights and duties but are merely the object of subject’s rights and duties (e.g. a territory and the natural resources within it)

Subjects of international law II

Subjects of international law relates to which entities have legal capacities under international law and the extent of that capacity in terms of competence to perform certain acts:

Hold of rights and duties under international law; Hold a procedural privilege of prosecuting claims

before an international tribunal; Possess interests for which provision is made by

international law; and Competence to conclude treaties with other States and

international organizations

Subjects of international law III

States Public International Organizations (e.g. United Nations,

African Union, North Atlantic Organization, European Union, Organization of American States etc).

Individuals: It is part of customary international law that the obligations of international law bind individuals directly regardless of law of their states.

Other Entities: An example of such ‘other’ entity would be the Holy See and the Vatican City, which enjoy the status of a State and has international personality. Other example: NGO’s

States

Statehood is objective, not subjective. Recognition does not bestow statehood.

A State is a state under international law (i.e. it has international legal personality), if it meets certain basic criteria.– Must have a territory– Must have a population.– Must have a government.– Must be sovereign, that is to say must be able to

exercise sovereign functions on the territory (e.g., be able to exclude anyone else from claiming it (defense), policing, administration (raise taxes), etc.).

International Organizations

International organization means public international organization or governmental organization, that is to say an organization created by sovereign states and whose functioning is regulated by international law, not the law of any given country.

There are hundreds of IOs. Some operate at the global level (E.g. UN, WTO, World Bank), others at the regional level (EC/EU, OAS, NATO, ASEAN, AU).

Personality of IOs is limited to what is necessary to carry out the assigned functions. E.g.. the UN or NATO must have the power to conclude treaties with states to carry out their mission. Powers are specified in the legal instruments of the organization (establishing treaty (e.g. UN Charter) and decision of the organization itself).

Individuals and Other…

Individuals have certain (inherent) rights under international law (i.e. human rights ) and certain duties (e.g. no to commit international crimes: war crimes, crimes against humanity and the crime of genocide). They have no international law-making powers (but can definitively lobby governments and IOs to do so).

Individuals can act collectively…– (NGOs). E.g. Amnesty International, medecins sans Non-

governmental organizations frontiers, WWF. There are several thousands of NGOs. The legal status of these organizations is regulated by the laws of the countries in which they operate.

– Peoples (e.g. indigenous peoples…) Hybrid organizations (public/private): International Committee of the

Red Cross, International Union for the Conservation of Nature.

Sources of International Law

International law has three primary sources– custom– international treaties– general principles of law.

Subsidiary sources (i.e. means to ascertain the content of law created by the primary sources)– Rulings of courts (mostly international)– The writings of international scholars

Article 38(1) – ICJ Statute

(a) international conventions, whether general or particular, establishing the rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) judicial decisions and teachings of the most highly qualified publicists…subsidiary means (Art. 59)

2. power to decide a case ex aequo et bono

Customs

Customary international law is the result of consistent practice of a majority of states supported by the belief that the practice is obligatory (opinio juris). Example: you cannot use your territory in such a way as to cause harm to other states; the territorial sea is 12 mile wide.

Customary international law is law for all states, regardless of whether they participated in the formation of the custom. A state is bound by customary international law simply by virtue of being a state. Where do you look to know what states’ practice is? You look at what states do and say. Treaty making, unilateral declarations, decisions within international organizations, acts….

Jus Cogens

Special category of customary rules: jus cogens.

Jus cogens are rules of international law to which are considered so essential that they can never be derogated. E.g. ban on torture, slavery, genocide. Two states or more cannot make a valid treaty making torture, slavery or genocide legal.

Treaties

‘…an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’

- treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi, or any other appellation

- central principle: consent to be bound

Treaties: Essential Vocabulary

full powers signature (authentication, good faith) ratification (domestic and international, Article 14 of VCLT) acceptance, approval, accession reservations, declarations contracting state state party entry into force deposit multilateral, bilateral, law-making

Treaties: Interpretation

Vienna Convention on the Law of Treaties, articles 31 and 32

Art 31: general rules of interpretation– in good faith and with ordinary meaning, in context and in

light of its object and purpose– in addition to the (full) text, the context shall comprise:

agreements relating to the treaty instruments made in connection with the treaty

– also: subsequent agreements, subsequent practice, any relevant rules of international law

– special meanings if established

Article 32

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty (*) and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when the interpretation according to Art 31:

a) leaves the meaning ambiguous or obscure; orb) leads to a result which is manifestly absurd or

unreasonable.

International law and national law

In general, as long as a State carries out its obligations under international law, how it does so is not the concern of International law, except in the area of human rights where states have undertaken to make certain conduct such as torture and genocide a crime punishable under national laws.

Not all states agree on the relationship between International Law and National Law

Many states adhere to the superiority of international law over national law, meaning that international law will prevail in the event of a conflict between with national law.

Other states see International law and national law as two separate legal systems and require formal incorporation of international laws into national law by the legislature before they become operational in the countries.

However, from international perspective it is important for you to bear in mind that international law is binding on all states.

General Principles

General principles of law are those principles commonly found in the major legal systems of the world. E.g.: ne bis in idem rule, or double jeopardy is a general principle of law (criminal law) common to all legal systems of the world. It is a source of international law on its own right but it is resorted to mostly when there is no applicable treaty or when there is no practice or it is unclear or inconsistent (which is rare).

International Order – Based on

International institutions International norms “Habit” (customs) Some norms codified into international law Common Principles of National Law

Factors “Shaking Up” International Norms

End of old international order (1950-60) New subject (1970) End of Cold War (1990) Rapid shifts in economic participation and

status of some countries (e.g. China, India, Brazil)

Information revolution Others

International Organizations (IOs)

Intergovernmental Organizations (IGOs)– Regional IGOs– Global IGOs

Nongovernmental Organizations (NGOs)– Professional organizations– Economic/business orgs– Political orgs– Cultural orgs– Religious groups

United Nations

67 years old More prominent since end of Cold War World government – not Major purposes:

– Conflict resolution (collective security)– Economic and social development

Created to serve state’s needs Designed for post-WWII world

UN Structure

General Assembly – all states Security Council – 5 great powers and 10

rotating seats Socio-economic Council Secretariat - office of Secretary General Court of Justice UN Programs Autonomous agencies

UN structure

Security Council

5 great powers (permanent) and 10 (temporary) rotating seats

Maintain world’s security Decisions binding on all

member states Re security situations:

– Define security threat– Choose a response – Enforce through

mandatory directives/resolutions

Choosing Non-Permanent Members of the Security Council

10 non-permanent members 9 votes needed to pass resolution: (no one of

the 5 permanents have to put the veto, so no one of them have to vote “no”. Abstention is possible)

5 new non-permanent members chosen every year for a 2-year cycle

Each region of the world represented by the 5 new members

Proposed Changes of the Security Council

Japan and Germany as permanent members – concerns?

European seat? India? Brazil? An Islamic country? Expand Security Council to 24 Members New permanent members? Semipermanent member

World Region in UN

Western Europe Eastern Europe and OLD USSR territories Middle East East Africa West Africa EAPRO (East Asia, pacific and Oceania) South Asia Latin America (Central and southern America)

General Assembly

All states are members (currently 192) Functions and Powers :

– Control of finances for UN programs and ops (e.g. peacekeeping)

– Pass resolutions – merely advisory if not convention signed and ratificated

– Elect members of UN agencies– Coordinates UN agencies and programs

Make-up of GA changed post-colonialism– Often venue for concerns/complaints of developing countries

Secretariat

Secretary-General is the top of the administration Nominated by SC, approved by GA Ban Ki-Moon from South Korea 2007 Bureaucracy for administering UN policy and

programs Develops international civil service system –

diplomats and bureaucrats with allegiance to world SG serves as third party, good offices of UN Special status of staff members

The list of Secretary-General

Trygve Lie, Norway (1946-1952) Dag Hammarskjold, Sweden (1953-1961) U Thant, Burma (1961-1971) Kurt Waldheim, Austria (1972-1982) Javier Perez de Cuellar, Peru (1982-1992) Boutros Boutros-Ghali, Egypt (1992-1996) Kofi Annan, Ghana (1997-2006) Ban Ki-Moon, South Korea (2007-)

UN Programs

Purpose - advance economic development and social stability

More than 10 Funded by GA and donations Examples:

– UNICEF (Children’s Fund – poor countries)– UNHCR (Refugees – protect and assist)– UNDP (Development in poor countries)– Administrative programs such as UN System

Autonomous Agencies

About 20 Ties to UN but not run by UN Specialized technical organizations IAEA (Atomic Energy Agency) WHO UNESCO WIPO WTO, IMF, World Bank In Italy: FAO, WFP, IFAD, UNICRI, ILO School…

Peacekeeping

The UN’s own forces (borrowed) Calm regional conflicts Neutral role Funds from General Assembly, control by Security

Council Size and cost of peacekeeping forces almost tripled

1997 to 2002 Can be observers (unarmed) or peacekeepers (armed) Don’t MAKE peace, KEEP it Currently 18 different missions in Africa, the Caribbean,

Middle East, Europe and Asia

Who Pays: top 10

United States - 27% Japan - 19% Germany - 9% United Kingdom - 7% France - 7% Italy - 5% Canada - 3% Spain - 3% China - 2% Netherlands - 2

Peace enforcement