Tutorial 3

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Tutorial 3

ch. 1.6
ch. 2.1 t/m 1.1.6
ch. 2.7
1.6 International Law Fundamentals
● Importance of international law fundamentals
○ It reaches out to citizens in a state in order to provide protection against
organs and institutions of the said state.
● International (public) law
○ Relates to all rules and principles between interactions of internationally
recognized legal persons
■ Internationally recognized legal persons: states and international
organizations
Legal Persons
● Relates to all rules and principles between interactions of internationally
recognized legal persons
● Internationally recognized legal persons: states and international
organizations
To be a legal person:
○ Agreements (treaties),
○ Establish international organizations,
○ Be held responsible for wrongful acts, and
○ Be held accountable for violations of the same international legal
standards such as treaties and customary law.
Main features International Public Law
● States operate as sovereign entities
○ Therefore cannot be sued
○ Therefore cannot be disciplined with an (international) police force
○ Cannot be kept to their obligations under international law by force or might

This shows a difference between National Public Law and International Public
Law
● Obligations can be enforced internally by the state
○ Reason: same state sovereignty

States are primary international actors


International Law: Criteria to be a state
● A state must be in control of a specific territory
○ Has to effectively wield authority there
● Be recognized by other states
● Be admitted as a member of international organizations
● A legal person with which conclude treaties and to exchange diplomats
○ Diplomat of that state
Unrecognized states
● States that do not effectively control their territory
○ Some are still recognized as a state
● ‘Entities’ may exercise control over their territory
○ Yet not recognized as a state
● Some governments aren’t legitimate governments
○ Has to be present in order to
■ Establish diplomatic relations
■ Conclude treaties
■ Become a member of the United Nations
‘States’ recognized by some or many
● Afghanistan
○ Present government not recognized by many
● Taiwan
○ No longer a member of UN
○ Considered by China, a part of China
○ Operates as a sovereign state and exercises domestic powers
Definition: Treaties
Vienna Convention on the Law of ● International law which may
Treaties (1969) apply to any state is
● What are treaties? ○ Customary law
○ Part of domestic contract law ○ Ius cogens
● Basic rules concerning their ■ Translation:
conclusions ‘Compelling Law’
● Binding nature ■ Designated norms, no
○ Only bind the contracting partners
derogation is permitted
● Entry into force
by way of agreements
● Modes of Interpretation
● Termination
Vienna Convention on the Law of Treaties (1969)
● State representatives
○ Actors as the head of their state and his/her representatives
○ Minister of Foreign Affairs
○ Duly accredited diplomats
○ Other government officials
● Who will represent a state in international relations is a matter of national
constitutional law
○ This responsibility is generally considered to fall under the domain of the
executive branch or government. It is typically the duty of the head of state,
prime minister, or ministers of foreign affairs. They bear the primary
responsibility for such matters.
Vienna Convention on the Law of Treaties (1969)
Involvement from parliaments in foreign politics vary from state to state
International law does not mention how to involve other actors on national
level in making of international relations and/or the conclusion of treaties.
Treaty-making in various steps:
Negotiations > Representatives of states put signatures to it > Treaty approval;
national level > Treaty being ratified by representatives > Treaty entering into
force
Negotiations > Representatives of states put signatures to it: governed
international law, take place in international legal domain
On basis of constituting treaty
States have established various international organizations

● United Nations
○ Related to them are, WHO, UNHCR, UNESCO
○ Others such as, WTO (for trade issues), ILO (for labour issues)
● The United Nations consists of
○ A General Assembly
■ All states-members meet
○ An important forum for resolving disputes in a peaceful manner
○ The International Court of Justice (ICJ)
■ Can give advisory opinions, they are authoritative, but not binding international law
Constituting Treaty: EU scale p.47?
Important examples are the EU, NATO and the Council of Europe

● Regional organizations exist with various organizations


○ Mandates
○ Remits definition: the specific tasks or responsibilities an organization is in charge of
● International organizations have in common
○ Operate as inter-governmental organizations
■ A state cannot be bound by or subjected to obligations against its will
■ Decisions are made with consensus or if taken by majority do not bind the state that
disagreed.
● Opposite of an inter-governmental organization is a supranational organization
○ Supranational organization: the EU
United Nations
Security Council, an organ of the UN, firsts decision was taken on basis of chapter VII
of the UN Charter.

● When the Council takes decisions with respect to threats to the peace, breaches of
the peace and acts of aggression, these decisions may include boycotts or the use
of force (by one or more of its members under UN mandate)

Permanent members are: Chine, France, Russia, the UK and the US.
They have a right of veto.

There are exceptions


Exceptions
Another exception, EU, expanded its domains of majority decision-making evolving
towards a supranational organization.
Second exception on EU level is the power of the European Court on Human Rights to
issue binding judgments against states for having violated an individual’s human rights.
Through these treaties, international law may reach into domestic legal order of states,
when such individuals appeal to an international tribunal.
European Court of Human Rights, the Inter-American Court of Human Rights or the
Human Rights Committee.
Exceptions
● The EU
○ It expanded their domains of majority decision-making evolving towards a
supranational organization
● On EU level
○ The power of the European Court on Human Rights to issue binding
judgements against states for having violated an individual’s human rights.
● Violated rights from the (UN) International Covenant on Civil and Political
Rights (ICCPR)
○ The European Court of Human Rights, Inter-American Court of Human Rights, or the Human
Rights Committee can be invoked against a state allegedly having violated rights.
Other treaties
● Mechanisms has been set up to settle disputed among their members.
○ -Through operating presently in a major state of crisis
○ WTO members functions with dispute settlement bodies, it decides between trade
conflicts
● To what extent can treaties play a role within national legal orders?
○ International law does not prescribe that states must accord international law a legal
status within the legal order.
○ The rule can only be taken willingly
○ Major exception
■ Supremacy over national law
Dualist and monist system
Dualist
Monist
● International and national law are strictly
separated ● National constitutional system which
● National law is inapplicable and legally accepts international law as part and
irrelevant in international legal relations parcel of national law
● International legal norms function outside ○ Open for application by state
the domestic sphere
○ Cannot be applied or invoked organs and courts
● International standards become national
France
law and acquire the status of a national
statute Art. 55 French Constitution,

The United Kingdom


Transposed international treaty?
UK Human Rights Act, taken from European
Convention of Human Rights
Accountability
● States are accountable for violations of an international obligation
○ Regardless of who within that state was responsible for the violation

Federal states can be held responsible for unlawful acts or omissions by their States
● To the extent that a state may be responsible despite the government not being in a
position to prevent it.
○ Exceptional cases are when the individual is held responsible in the international domain,
○ International domains
■ e.g. International Criminal Court,
○ Special international tribunals
■ e.g. former Yugoslavia tribunal
Military
● Military conflicts and the conduct of war are separate issues
● National constitutions separate competences to different actors to
○ declare war
○ engage in military conflicts
○ defend the nation in military circumstances and emergencies
○ commit military and armed troops to situations abroad
■ e.g. Security Council mandated military missions

General but not universal rule

● Up to the parliament to declare war


● Up to the government/minister of defence to engage in military operations abroad
Standards relating to war and military conflicts
1. Notion of sovereignty of states includes the aspect of inviolability of borders
and an equivalent prohibition on other states from engaging in military
invasions and interferences
a. Security Council plays a role in this respect and occasionally does do so,
i. Usually hampered by a veto of one of the permanent members
2. Military actions abroad, they will adopt resolutions authorizing peace-keeping
missions or related military activities
3. In absence of UN force
a. Peace-keeping troops will be established on basis of states which volunteer to make troops
and weapons available for such missions
Standards relating to war and military conflicts
Military missions abroad can be considered admissible of a state invited another state
to come to the rescue and assist through specific forms of aid and military means.

● Decisions about the military are


○ Taken under the constitutional rules of the state concerned
● Many conventions exist about conduct in military conflict
○ Seeking to protect citizens
○ Banning use of specific weapons
○ Providing safeguards for prisoners of war
● Violation of conventions
○ Leaders and military have the risk to be prosecuted after a settlement or defeat
1.1. The Notion of Sovereignty
● Sovereign
○ The original source of all public power from which all other power flows
■ e.g. popular sovereignty: power from the people
○ Definition
■ The ultimate power to exercise authority over oneself
○ Abstract notion
● Internal sovereignty
○ Original source of public authority within the state itself
○ Power from popular will, preamble is
■ e.g. ‘We the People…’
● External sovereignty
○ The possibility for a state to exercise control over its populations and territory without interference
from outside
■ e.g. Peace of Westphalia in 1648
● Fundamental concept in public international law
1.1.1. Popular versus Royal Sovereignty
● In absolutist systems
○ Original source of all public authority is the King/Queen
■ Le droit divin
● 19th century
○ Monarchs set up constitutions to appease their people
○ Constitutions meant to limit direct use of power by public authority
■ Yet, authority came from the monarch him/herself.
● Ability to change or repeal them
● Constitutions octroyees
● Personal powers of kings/queens and grand-dukes are fading and become
ceremonial
○ More of a title or a symbol than an actual claim of their powers
1.1.2. Popular versus National Sovereignty
● Popular sovereignty
○ Population able to exercise its will through e.g. a referendum to change the constitution
● National sovereignty/ sovereignty of the nation
○ Not able to act on its own
○ National sovereignty needs to be exercised by the nation’s representatives
■ in the manner laid down in the constitution
○ Belgium
1.1.3. Popular versus State Sovereignty
● Sovereignty
○ Reappears as nominal remnant of original autonomy and independence of individual states
■ Non-delegated powers to federal level are ‘sovereign’ powers of individual states
● All-American national identity supports
○ Union-friendly case law
○ The practical consolidation of stable federal institutions

Union’s victory over Confederates in the Civil War, have set up a permanent federal
system of government for the entire country where its power is defined in its
Constitution.
1.1.3. Popular versus State Sovereignty
● US
○ Civil war
○ Pertinent case law of the Supreme Court
■ Denied the right of independence for individual States
● Germany
○ Basic Law
■ Explicitly based on sovereignty of German people
○ No constitutional right of secession
● Scottish referendum
○ A right to independence/ secession of part of the territory of a state
■ Only with permission of UK legislature
■ Outcome would have been respected and honoured.
Also happening in Spain with Catalonia.
Spain: not a federal but a unitary state
1.1.4. Parliamentary Sovereignty
● The United Kingdom has a ‘King/Queen-in-Parliament’
○ Construction whereby bills are adopted by Parliament, then receive royal assent from
monarch
○ Sovereignty of Parliament
■ Legislative supremacy
○ Acts of Parliament are the highest law of the land
■ Statues made by Parliament with royal consent
■ Nothing invalidates the law
■ Only King/Queen-in-Parliament can undo previous legislation
1.1.5. The Absence of Sovereignty
● Netherlands
○ Constitutional law does not occupy itself with sovereignty in whatever meaning
○ In order not to get involved with the
■ Republicans
■ Royalists
■ Clericals
○ Dutch Constitution does not hold any preambles
○ Functions as a democratic constitutional monarchy with a parliamentary system
governed by the rule of law.
1.1.6. Sovereignty and European Integration
● EU compromises out of states
● EU Law
○ Generated direct effect in member states
○ Has supremacy over conflicting national provisions, irrespective of how member states
otherwise treat international treaty commitments.
● European Court of Justice case law
○ Member states give up their state power
○ US Supreme Court use likewise phrases and claimed supremacy of federal laws
● EU only holds power that the member states have conferred upon
○ TEU Art. 5(2)
○ A treaty all voluntarily and unanimously ratified
1.1.6. Sovereignty and European Integration
● European framework
○ Treaties have domestic constitutional implications
○ Some constitutions have a ‘Europe Clause’
■ e.g. Germany & France
● From national perspective
○ Europe-friendly constitution can be a supreme constitution
○ To reconcile EU claims to supremacy with national claims to sovereignty
■ Arguments: meaning of sovereignty

2.7. The European Union
TEU, TFEU and EMU

● The European Union was established in 1992


○ Maastricht Treaty entered into force in 1993
○ Successor and expansion of European Communities
● European Communities was a merger from
○ The European Coal and Steel Community (ECS)
○ The European Economic Community (EEC)
○ The European Atomic Energy Community (Euratom)
● Lisbon Treaty (2009)
○ Recent change to the treaties
2.7. The European Union
● Treaties that govern the European Union
○ Treaty on the European Union (TEU)
○ Treaty on the Functioning of the European Union (TFEU)
● Competences of the EU
○ TFEU
■ Articles 2 to 6
● Economic and Monetary Union (EMU)
○ Indicates the economic and monetary policies of the EU
■ Encouraged in the TFEU
2.7. The European Union
Economic and Monetary Union (EMU) convergence of economies has three stages

1. Copenhagen criteria
a. Admission criteria for new member states, rule of law, viable market economies
2. Participation
a. ≥2 years in the European Exchange Rate Mechanism
3. Admission to the euro
i. 20 members adopted the use of euro
b. Under obligation to strive for the third stage

States that adopted the euro are called ‘Eurozone’


They are bound by specific rules with respect to their economies and budgets
2.7. The European Union
EU institutions

● European Parliament
○ 705 members
■ Directly elected by EU citizens every 5 years
○ Plays a role in EU lawmaking
■ Budget
■ Holding the Commission accountable
■ exercising oversight over other EU institutions
○ TEU
■ Art. 14
○ TFEU
■ Art. 233 to 234
2.7. The European Union
EU institutions

● The European Council


○ Consists of
■ Heads of state
■ Heads of government of the member states
○ President
■ Elected every 2 ½ years by the European Council
■ May be re-elected once
○ TEU
■ Art. 15
○ TFEU
■ Art. 235 & Art. 236
2.7. The European Union
EU institutions

● The Council
○ Consists of representatives of the member states (Ministers)
○ Operates with qualified majority decision-making
○ The joint legislator with the European Parliament
○ TEU
■ Art. 16
○ TFEU
■ Art. 237 to 243
2.7. The European Union
EU institutions
● The Commission
○ 27 members
○ Supervises the execution of EU law
■ Ensures external representation of the EU
○ Exclusive right to initiative of lawmaking
○ Operate independently from member states
○ Promotes general interest of EU
○ Appointment
■ President and members are appointed by the European Council, after involvement and agreement of
European Parliament
● Parliament may adopt a motion of censure, leads to dismissal of the Commission
○ One member is entrusted with task of conducting foreign affairs and security policy
○ TEU
■ Art. 17 & 18
○ TFEU
■ Art. 224 to 250
2.7. The European Union
EU institutions
● The Judiciary of the EU comprises the Court of Justice
○ General Court & specialized courts
○ One member per member state
○ TEU
■ Art. 19
○ TFEU
■ Art. 251 to 281
2.7. The European Union
EU institutions
● The European Central Bank (ECB)
○ Compromised out of
■ National central banks
■ The European System of Central Banks (ESCB)
○ Conduct the monetary policy of the EU
○ ESCB led by ECB
■ ECB has the monopoly over issuing euro coins and notes
○ Consists of
■ Six members of the Executive Board
● Executive Board, appointed by European Council for 8 years, without re-apointments
■ Presidents of central banks of the euro states
○ TFEU
■ Art. 282-284
2.7. The European Union
EU institutions
● The Court of Auditors
○ To check EU funds are collected and used correctly, improve EU financial management
○ Members are appointed by the Council, serve 6-year term (renewable)
○ TFEU
■ Art. 285 and following
2.7. The European Union
Eurozone
● EU member states that have adopted the euro as their currency
● Eurozone members represented by
○ Their finance ministers
○ Heads of state/heads of government
● Eurogroup
○ To take political decisions for the Eurozone and the euro
○ Legal basis of Eurogroup
■ Lisbon Treaty, Protocol No. 14
○ Select their own president for renewable term of 2 ½ years
○ TFEU provides, when dealing with Eurozone issues in Council formation ECOFIN, only 20
minister of euro countries may vote
■ TFEU
● Art. 136
2.7. The European Union
EU Charter

● TEU: Article 6
○ Refers to Charter of Fundamental Rights as a Bill of Rights
■ Which is binding upon the EU and member states when they operate within EU law
○ Human Rights protected by ECHR
○ Found in common constitutional traditions of the member states are also part of EU law as general
principles of law
○ Proclaims, EU will accede to ECHR and its supervisory mechanism
○ Accession treaty was negotiated between EU and Council of Europe
■ 2015, Court of Justice issued negative opinion
● Further negotiations will be necessary
● Accession in immediate future not likely
2.7. The European Union
Supremacy of EU law
● No specific reference to supremacy of EU law
○ But, TFEU Art. 288
■ Regulations are binding and applicable in all member states
■ Directives are binding as to the result achieved
■ Decisions are binding
○ Court of Justice
■ Possesses variety of powers to decide on infringement of EU law and validity of secondary
EU law
● Preliminary rulings in this respect are requested by national courts in the course of
national court proceedings
○ TFEU Art. 267
2.7. The European Union
Supremacy of EU law

● Becoming party to the EC/EU/EEC


○ Give up parts of sovereignty
○ EU law prevails over national law
○ EU rules with direct effect can be invoked in national courts, which are obligated to fully apply EU
law, even if it means setting aside conflicting national rules.
● EU impacts upon the … of and in the member states
○ Powers
○ Full sovereignty
○ Power balances
● EU is a multi-level governance

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