10. International law & domestic law (I) (1999)Apunte Inglés
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10. International law and Domestic law (I)
Definition of International Law
International law is a universal system of rules and principles of general application dealing with the conduct of severing
States and of International Organizations in their international relations with one another (inter se) and with non-state
actors (private individuals, minority groups and transnational companies or corporations).
The objective of international law is: • To resolve international disputes.
• To regulate and shape behaviors.
• To prevent violations.
• To provide remedies for violations whenever they occur.
• PUBLIC INTERNATIONAL LAW: it comprises a body of rules which is concerned mainly with the rights and obligations of sovereign states.
• PRIVATE INTERNATIONAL LAW (“conflicto of laws”): it consists of rules which govern relations between private entities. They decide which domestic laws and courts are competent to adjudicate a case with an international component. (ex: a company or citizen signing a contract in a foreign State).
Evolution Origin: The modern system of international law was born after the Peace of Westfphalia, along with the concept of “nation-state”. (nation controlled by a centralized system of government). There is an increasing importance of the concept of nationalism (awareness of a distinct national identity). Up until mid 19th century, relations between nationstates were established through treaties and agreements to behave in a certain way, but they were unenforceable and mostly of non binding. Powerless treaties —> increasingly destructive wars. There were new calls for regulation of the states during times of war. Prosecution for war crimes and limitations of the conduct of the states in wartimes.
International Humanitarian Law and Human Rights Law.
International law nowadays: increasing importance in a wide variety of fields such as international crimes and extradition, Human rights and refugee protection, use of armed force by States and non-State actors, counter-terrorism regulation, international economic law… Subjects An international legal person is a body or an entity recognized as being capable of exercising international rights and duties. This means to have the ability of: • Having access to international tribunals to bring claims or actos on rights conferred by international law.
• Fulfilling the obligations imposed by International Law • Having the power to make agreements • Enjoying the immunities form the jurisdiction of the internal courts of other states.
Who has international legal personality? A. STATES: The main subjects in International Law. They have all the international legal person’s abilities.
A. States characteristics: • Defined territory: No minimum requirement as to the amount of territory. A consistent, coherent area of territory over which the State exercises sovereignty. Even if their boundaries are not completely defined and settled • Permanent population: No minimum requirement as to the population They have to be sufficiently linked with the territory Even if they are nomadic • Government: An effective Government or a coherent political structure able to exercise control over the permanent population within its territory. Even if an established State has no longer effective government because of e.g. a civil war, it keeps its Statehood • Independence: Capacity to enter into relations with other States on a basis of equality B. INTERNATIONAL ORGANIZATIONS: Their rights and obligations may be different from the ones attributed to the States, and consequently their abilities. Conditions to have international legal personality: • Permanent association of States, with lawful objects.
• Distinct legal power and purposes from the member states.
• Exercising powers not only within a domestic system but internationally.
• EX: European Union, UN Agencies, Organization of American states… UNITED NATIONS • 1945 —> 51 members. // 2016 —> 193 members • Conditions to become a UN member: • Being a “peace-loving” country.
• Accepting the obligations of the UN Charter.
• Purposes: • Maintaining international peace and security, including the prohibition of the use off force in international relations.
• Developing friendly relations between States.
• Achieving international cooperation in solving international disputes • Main organs: • Security Council (SC): composed by 15 States —> 5 permanent States: USA; UK, FR, RU and China. 10 States elected for two-year terms.
• Functions: • Peaceful settlement of disputes between States.
• Authorization of action in relation the threats to the peace and acts of aggression.
• Decisions require 9 “yes” votes but a decision cannot be taken if there is a veto (“no” vote) by a permanent member. The frequent use of veto during the Cold War effectively prevented the SC form acting. It is more active from 1990 onwards but there are still terrible failures. (eg: Balkan Wars, Somalian Civil War, Rwandan genocide).
• General Assembly: all members of UN are represented in it. Each one has a vote.
• Functions: Considering, discussing and making recommendations but not in relation to a dispute or other situation being under consideration by the SC. It is a solution when the SC is blocked by the use of veto. (eg: Korean War and the Veto of SC decisions by the Soviet Union).
• International Court of Justice: The chief judicial organ of the United Nations. 15 permanent members, elected for a nine-year term (elections held every 3 years; one third of the judges retire each time). An extra judge ad hoc may be nominated when the Court does not include a judge of the nationality of a State which is a party in a case. Decisions are taken by majority vote.
• Secretariat: Administrative staff of the Un. Headed by the Secretary-General, who is appointed for a 5-year term by the UN GA on the recommendation of the UN SC.
• Functions: Bringing matters to the attention on the UN SC. Peacemaker and diplomat.
• Economic and Social Council: 54 members elected by the GA (included the 5 permanent members of the UN SC); It should achieve an equitable geographic distribution.
• Functions: • Coordination of the activities of specialized UN Agencies.
• Studying and reporting on international economic, social. cultural, educational. health and related matters.
• Making recommendations to promote respect for human rights and fundamental freedoms.
C. NON-STATE ACTORS A. Individuals: Their link to toe State is through the concept of nationality. Nationality is the status of being treated as a national of a State for particular purposes. Each State can determine who is national at birth (through one or both parents —ius sanguinis— or by the place birth —ius solis—) or afterwards (adoption and naturalization).
B. Corporations: They have not been considered subjects of International Law, although some large multinational companies negotiate with States from a position of great power (being granted very favorable conditions en for example tax treatment, labour conditions, immunity from legal suit). Recently, they are supposed to follow basic human rights and environmental law standards when operating in developing countries (corporate social responsibility). They are usually considered as having the nationality of the State in whose territory they are registered.
Why is the nationality so important in a conflict involving a state? If a national of a “State Y” is injured by a “State Z” through internationally unlawful conduct, State Y may bring a claim against State Z on behalf of its injured national (principle of nationality of claims).
C. NGOs: although they don’t have international legal personality, they are involved permanently in international activities as members of a State delegation.
D. National liberation movements: in some cases they may have limited international personality through recognition by some States or the United Nations, representing their people. (eg: Palestine Liberation Organization or Polisario Front).