Beruflich Dokumente
Kultur Dokumente
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JY Old definition: body of rules that regulate the conduct of states.
JY New definition: body of rules that regulate the conduct of states and other entities which at
any time are recognized as being endowed with international personality(=UN, WTO, all int
org).
i
JY egulates the co-existence of states:
- rules about borders
-rules about seas
JY egulates the cooperation between states and other entities.
JY
·
human rights treaty of rome, Amsterdam,͙ (http://www.bayefsky.com/)
:
¦
JY Signing is a first step: once signed, you must reframe as a state from any act that might
undermine the object and the purpose of the treaty.
JY atifying is an international act. Once you have ratified you have conceded(= toestaan) to be
bound legally.
JY http://europatientrights.eu/countries/signing_and_ratifying_a_treaty.html
JY It͛s not forbidden in public international law
JY Unless it͛s forbidden by that specific treaty
JY Unless the reservation is incompatible with the purpose and the object of that specific treaty.
JY Traités lois: Verdragen die gesloten worden om algemeen geldende regels vast te leggen.
Worden ook wel codificatieverdragen genoemd en leggen het geldende gewoonterecht vast.
law making treaty: a treaty making new general rules of international law. ·xamples are all
human rights treaties.
JY Traités constitutions: Men kan besluiten bij verdrag een internationale organisatie op te
richten waarbij dan het verdrag min of meer als constitutie of grondwet van deze organisatie
fungeert.
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JY Uniform state practice: states act the same way in the same situations. There must first be
evidence of substantial uniformity of practice by a substantial number of states.
JY Opinio juris sive necessitatis: refers to subjective belief that particular practice is legally
binding,YActs must occur out of sense of obligation. The principle of International Law is that
where states believe and accept that a practice exists and must be followed because of a rule
of law requiring it, the practice becomes a part of the body of norms known as International
Customary Law. ·stablishing opinio juris can be very difficult, and
(http://nl.wikipedia.org/wiki/ echtsovertuiging)( http://definitions.uslegal.com/o/opinio-
juris-sive-necessitatis/)
!
JY Codification= Meaning you write it down in a treaty.
¦
JY General principles of law:
ÊY Good Faith, includes equity
ÊY ·stoppel
ëY A state that has taken a particular position may be under the obligation to
act consistently within another occasion.
ëY When a state has acted to its detriment in relying on a formal declaration by
another state, the latter may be stopped from denying its responsibility for
any adverse consequences.
ÊY norms
JY Judicial decisions of international courts: vorige uitspraken gedaan door international courts
als ·uropean court of justice, the international criminal court, the ·uropean court for human
rights,͙ kunnen gebruikt worden voor nieuwe oordelen.
JY Act of international organizations:
- verordeningen
- richtlijnen.
JY Soft law: political decisions taken by international organizations. Soft law is also viewed as a
flexible option - it avoids the immediate and uncompromising commitment made under
treaties and it also is considered to be potentially a faster route to legal commitments than
the slow pace of customary international law. With the passage of time, in today's globalized
society it is easy to use the media and the internet to spread the knowledge of the content of
declarations and commitments made at international conferences. In doing so, these
aspirational non-commitments often capture the imagination of citizens who begin to
believe in these soft law instruments as if they were legal instruments. In turn, it is felt that
this ultimately impacts governments who are forced to take into account the wishes of
citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft
law instruments so frequently and with such import that they begin to evidence legal
norms.(Wikipedia, maar komt ook overeen met wat lien in haar cursus zegt)
½
JY Number of fundamental norms for the entire world with no derogation.
JY ·xamples are:
- prohibibtion of genocide
- prohibition of slavery
- prohibition of racial discrimination
- prohibition on the use of force and aggression
-torture
-crimes against humanity
JY §ou can only change jus cogens by making a new one.
JY No formal hierarchy, except for jus cogens, these norms always prevail other rules.
States are the only international organizations having international legal personality.
¦
JY Criteria for statehood:
- defined territory (size doesn͛t matter and boundaries does not have to be defined
definitively.)
- permanent population (population does not have to be homogenous) !
What about nomands?
- government ( central government operating as a political body within the law of the land
and in effective control of territory. But once the state has been established, military
occupation by another state will not affect the statehood. even if it͛s a so called failed state
(like Somalia) which is not able to establish a government controlling most of the territory, it
will not stop to be a state͙)
-capacity to enter into relations with other states and entities (government must be
sovereign and independent so it͛s not a subject to another state. example: treaty of
friendship between Bhutan and india in which Bhutan agrees that india guides it͛s external
relations does not affect the statehood)
- are the principal actors of international law (states have rights and obligations)
-declaratory and constitutive theory: ( N,S Korea, ·W Germany, NS Vietnam, Kosovo and
Siberia,͙)
ÊY constitutive theory: recognition by the other states is needed.
ÊY Declaratory theory: no recognition by other states is needed because, the existing
situation is in fact the recognition of the state.
ÊY Kosovo is aanvaard als staat door meerdendeel van de ·U landen, maar spanje en
Cyprus doen dat niet, uit vrees dat de onafhankelijkheid van Kosovo delen van hun
land zou aanzetten tot onafhankelijkheid.
ÊY Membership to the UN is open only to states although,Belarus and Ukraine became
members of the UN although they weren͛t states.
-Y The right of self- determination: all peoples have the right of self-determination, and thus
to determine freely their political status.
G
(objects of international law, because there are no direct rights and obligations attached
directly.)(object vs. subject of int law.)
JY In welke mate laat international law toe om als state domestic jurisdiction over persons and
things in it͛s territiory uit te oefenen.
JY It͛s an aspect of sovereignty of states, as reflected in the principles of the equiality of states
non-interference in another state͛s domestic affairs.
JY Domestic jurisdiction can take 2 forms:
ÊY Prescription: making of law
ÊY ·nforcement: implementation of law
JY Conflicts of jurisdiction in civil matters are generally resolved by applying rules on conflict of
laws.
JY State may exercise jurisdiction if there is a sufficiently close connection between the subject
matter and the state to override the interest of a competing state
j
JY Primary basis for jurisdiction
JY State is free to legislate and enforce that legislation within its territory, the main exception
being when that freedom is restricted by a rule of international law.
JY Territory: this territorial principle can be used on the following domains.
ÊY land area
ÊY internal waters:
ÊY territorial sea:
-breadth territorial sea: up to max 12 nautical miles.
- belongs to the territory of the coastal state but ships have the right of innocent
passage (except in international straits: right of transit passage)
ÊY airspace above the areas: aircraft flying over are primarily subject to the
jurisdiction of the state of registration.
-Y Officials of a foreign state cannot take evidence or exercise other jurisdiction without the
consent of the international state. Not even in the foreign embassy, since embassies are
not foreign territory.
-Y A legal process cannot be served directly in another state, only if both countries accepted
by means of a treaty. Only in exceptional cases could the ICC of one state sit in another
state.
-Y functional jurisdiction: !
Vanaf pg 281 in boek.
1
ÊY coastal state enjoys no full sovereignty, only sovereign rights for certain
purposes
ÊY contiguous zone(aangrenzende zone):
ëY can extend beyond the territorial sea but not further than 24 nautical
miles from the baselines from which the territorial sea is measured.
ëY Coastal state is entitled to exercise the control of its customs, fiscal
immigration and sanitary laws and regulations when committed within
its territory or territorial sea
ÊY ·xclusive economic zone:
ëY Area adjacent to the territorial sea; extending up to 200 nautical miles
from the baselines from which the territorial sea is measured.
ëY Coastal state has sovereign rights for the purpose of exploring,
exploiting, conserving and managing the natural resources, whether
living or non-living, in the water, on the seabed and the subsoil.
ÊY Continental shelf:
ëY Is the natural prolongation of the land territory below the sea level
ëY Area adjacent to the territorial sea that extends up to the outer edge of
the continental shelf (is the section of the seabed that gradually slopes
from the low watermark to an average depth of 130 meters) or to 200
nautical miles from the baselines from which the territorial sea is
measured, whichever is greater.
ëY Coastal state has sovereign rights for the purpose of exploring and
exploiting its natural resources on the seabed and the subsoil
-Y Areas where no sovereign rights are exercised:
JY The area:
ëY The seabed and the ocean floor that is not part of the continental shelf
of any state: the deep seabed
ëY Is declared common heritage of mankind
ÊY The high seas:
1
http://www.rya.org.uk/infoadvice/boatingabroad/Pages/unclos.aspx
ëY Are all parts of the sea that are not within the ··, territorial sea and
internal waters
ÊY All states enjoy the freedoms of the high seas: freedom of navigation, freedom of
overflight, freedom to lay submarine cables and pipelines, freedom of fishing,
freedom of scientific research.
ÊY Outer space.
£
JY Nationality:
ëY National aspect: the law of each state determines who are its nationals:
JY Ius sanguinis: family in Belgium
JY Ius soli: place where you͛re born (ex. Green card in America)
ëY ·very state has its own system: Belgium has a bit of both, primary it uses
ius sanguinis, but when you stay for several years in Belgium, you can
become Belgian.
ëY International aspect: although nationality may be valid in the state of
nationality, sometimes it may not be recognized by the purpose of
international law.Because countries apply different rules you can have
different nationalities or you can have NON· the noteboom case!
ëY Noteboom case: he had german nationality, lived there for many years
and was born there(1930-1940). Then he moved to Guatemala for
business reasons, where he started up a very successful company. He
came back to germany and afterwards to Lichtenstein, because he
wanted to have the Lichtenstein nationality. He obtained it by paying a
huge amount of money. Then he went back to Guatemala. 2 years later
Guatemala entered the WO2 war against germany.
ÊY Notebooms property is confiscated and he͛s put in jail.
ÊY After wo2 they released him, but property was never
compensated.
ÊY According to noteboom, Guatemala has violated human
rights.
ÊY He wanted to receive some compensation and filed
complaint against Guatemala.
ÊY He asked Lichtenstein to excercice the right of diplomatic
protection.(= state has to protect the interest of civilians
on international level. Lichtenstein should sew
Guatemala. It͛s a right.)
ÊY Lichtenstein agreed and sewed Guatemala.
ÊY Int court of justice said the claim of Lichtenstein was not
admissible, so no descision on the merits of the case.
Why?
ÊY Why: there was no real connection with Lichtenstein, he
just paid a huge amount of money and that͛s the reason
why the complaint was not admissible
ëY Active personality principle:
ÊY Used in criminal law
ÊY State has jurisdiction to his principles abroad
ÊY A state can prosecute a national who has commited a
crime outside the state.
ëY Passive personality principle:
ÊY Used quite often by the USA, when dealing with
terrorism
ÊY Not accepted in international law
ÊY Crime commited by foreigner abroad, but victim is an
American.
ÊY Prisoners of Guantanamo bay.
ëY Protective principle:
ÊY Outside territory
ÊY Commited by foreign
ÊY Victim is foreign
ÊY But crime against the vital interest of the state
ÊY Used for counterfeiting
ëY Universal jurisdiction or quasi-jurisdiction:
ÊY Accepted but exceptional (it͛s exceptional for states to
have jurisdiction under their law over crimes committed
abroad by foreign nationals against foreign nationals.
JY Universal jurisdiction:
ÊY Accepted for piracy, slavery, genocide and everything
against human rights, because these crimes are so
prejudicial(=schadelijk) to the interest of all states, that
customary international law allows any state to exercise
jurisdiction over them, wherever they take place and
whatever the nationality of the alleged(= vermeende)
offender or victim.
ÊY part of customary international law
JY Uuasi-jurisdiction:
ÊY refer to this principle in framework of very specific
treaties. (treaty law)
ÊY certain treaties dealing with terrorism also in
corporation of universal jurisdiction, but sicne it only
applies to parties
ÊY States are very reluctant because:
it͛s very costly
it can endanger the diplomatic relationships between
countries.(ex. Belgium did it once, when not many
countries had accepted this universal jurisdiction. What
happened: people were scared to come to Belgium (they
could be arrested)
ëY ·xtradition:
ÊY = uitlevering
ÊY There is no general obligation to extradite.
ÊY Treaties that specify that crimes are extraditable:
ëY Double criminality principle: extradition is granted
only if the act for which extradition is asked is
regarded as a crime by both involved countries
ëY Principle of speciality: about the fact that if the
accused person is extradited, he can only be tried (=
berecht) for the crimes committed in the country to
which he͛s extradited
ëY No obligation to extradite its own nationals, but then
the state has to do the case itself !
Wtf?!
ëY No extradition for political offences
ëY Ne bis in idem principle: no extradition will take !
Ook nie helemaal duidelijk.
c
-Y Once treaty entered into force for a state, it does not necessarily become part of its law.
Treaty law and domestic law operate on different legal levels. A treaty creates rights and
obligations binding on states and other international legal prsons. But, when treaty
confers rights or imposes obligations on natural or legal persons, the rights can be given
effect only if they have been made part of the domestic law of the party.
-Y lénmaal een treaty in werking treed moeten de partijen de treaty ter goede trouw
naleven. o mag een land zijn domestic law niet gebruiken als verantwoording van het
niet naleven van international treaty. Dus als een domestic law niet overeenkomt met
treaty, dan moet land zijn domestic law aanpassen.
-Y Is incorporation of a rule of international law into domestic law necessary? 2 approaches:
JY Monism:
ÊY Unity of entire legal order
ÊY Domestic law and international law are one legal order
ÊY ules of international law are an integral part of domestic law ( a treaty may become
part of domestic law once it has been concluded in accordance with the constitution
and has entered into force for the state)
ÊY Used in Belgium and France, Switzerland has the most developed form of monism.
JY Dualism:
ÊY ·xistence of two legal orders: international law and domestic law exist separately
ÊY National judge functions within its domestic law system
ÊY ule of international law has no effect in domestic law unless the international rule
has been incorporated into domestic law.
ÊY Most developed in the UK. Also used in Italy and Germany and USA.
Hierarch of norms: what happens in case of a conflict between an international and national rule?
JY Monism:
ÊY International rules prevail over a national rule ( and overrides any inconsistent
domestic legislation)
ÊY A self-executing international rule can be invoked by natural or legal persons before
a national court.
JY Dualism:
ÊY International rule has no effect unless the international rule has been incorporated
into domestic law; it has then received the status of domestic law
ÊY Therefore no conflict between an international rule and national rule, but conflict
between two national rules.
ÊY Lex posterior derogate legi priori: the most recent law/ rule will prevail. So it is
possible that a new national rule can prevail over an international one.
ÊY Dualism is difficult to accept in the ·U, because some ·uropean rules have a direct
effect on national courts. These rules are self-executing, because they are
regulations with a general application. They͛re binding in its entirety and are directly
applicable in all the member states. This means that if there is a conflict between a
·U-rule and a national rule, the ·U-rule will always prevail! Countries who apply the
principles of dualism have to make an exception due to ·uropean legislation.
O
!
Heb ik ook niets over!
!
State responsibility is
customary international law while state immunity is
mostly domestic law.
JY Is customary international law
ÊY Articles are residual: only apply when when internationally wrongful acts are not
governed by special rules of international law.(ex. Damage caused by space objects.)
ÊY Customary international law will only be applied to matters not covered by articles,
so leaving open the development of the law of state responsibility
ÊY Articles are without prejudice to the UN charter.
JY Problem is that sometimes the rules are not entirely clear and that͛s why they started to
codify(write down) the rules. At the moment this is the task of a special international
commission. This work takes place in the framework of the international law commission.
(consisting of around 20 experts in international law, they don͛t represent their country.See
final draft articles on the responsibility of states for internationally wrongful acts
(international law commission)
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JY Violation of an international legal obligation by a state
JY Violation is attributable to the state:
ÊY Organs of the state: (only the conduct of a state͛s organs of government or its agents
can be attributable to the state.)
ëY Organs can be legislative, executive or judicial in nature + persons or entities
empowered to exercise elements of governmental authority
ëY State organs include those of the national, regional or local government( ex.
Flemish authorityimputable to Belgium, even if those acts are unauthorized.
·x. Torture of policemen.
ÊY The conduct of state organs, or persons empowered to exercise elements of
governmental authority are considered acts of the state if they act in that capacity
and even if the exceed their authority (=ultra vires2)or contravene instructions
ÊY Purely personal acts cannot be attributed to the state
ÊY The conduct of private persons is attributable to the stazet only if three conditions
are met:
ëY They are in fact exercising elements of governmental authority
ëY They do so in absence or default of official authorities
ëY The circumstances call for the exercise of those elements of governmental
authority.( van gedekolonialiseerde gebieden zijn zowel de former
government als the new government responsible )
ÊY If state A is ͞placed at disposal͟ of state B to exercise elements of governmental
authority of state B, its conduct is considered an act of state B.
2
Ultra vires volgens Maxim= acts which are unauthorized but which have been exceeded in the official capacity
of the state. ·xample: torture by Mexican policemen of a French businessman.
£
JY Is often the first step of solving a dispute. This first step exists out of direct talks
between the disputing parties. These negotiations might result into a treaty, but its
not always possible.
c
JY Good offices: the third party will just provide impartial assistance. He will offer a kind of
channel of communication between the 2 parties. This method is used when the 2 parties are
not willing to enter into direct talks with each other. Third party is a kind of go-between.
·xample: conflict between USA and Iran in the 1980͛s. (passive role of third party)
JY Mediation: difference with good office is that a mediator will try to reconcile the claims of
both states. The mediator plays an active role because he will try to formulate solutions.
·xample: peace agreement between Israel and ·gypt mediated by US in camp david.(active
role of third party)
Y Good offices and mediations are more political processes and therefore they may not be
suitable for the resolution of a legal dispute.
JY Conciliation: here we talk about fact-finding. (= trying to find out what really happened in the
conflict.)
ÊY A conciliation commission finds out what happened and makes proposals about the
settlement of the dispute. ·xample of fact-finding: conflict between Hamas and
Israeli army.
ÊY The conciliation commission may draw the attention of the parties to the dispute to
any measures that might facilitate an amicable settlement.
ÊY The commission shall hear the parties, examine the claims and objections, and make
proposals to the parties with a view to reaching an amicable settelement of the
dispute.
ÊY A conciliation commission is usually composed of three to five members, one
national member of each party and 3 neutral persons chosen jointly by the parties, a
neutral member serves as chairman.
ÊY Conciliation is not binding and so less effective then arbitration or judicial settlement
c
This third method requires a mutual acceptance of the competence of the entity that will settle the
dispute in advance. This kind of acceptance is a condition for membership in organizations such as
the WTO, ·U and the Co·(they have to accept the juri.
ex. ·U: as you become member of the ·U, you accept the jurisdiction of the ·uropean court of justice
or the council of ·urope: ·uropean court for Human ights. !
Or of and?
!
Klopt volgens mij niet͙
JY Arbitration:
ÊY Submission of a dispute to arbitrators (chosen by the parties, one arbitrator for each
party, the arbitrators chose together another arbitrator.)
ÊY Parties agree to accept and respect the award
ÊY Save time compared to judicial settlement
ÊY Much more expensive compared to judicial settlement
ÊY Arbitration mostly ends by compromise.
ÊY ·xamples:
ëY Permanent court of arbitration: is not really a court, we͛re just talking about
a permanent facility. Same building as ICJ in den haag. The dispute between
Belgium and the Netherlands about the ijzeren rijn rail way is been settled by
the permanent court of arbitration.
ëY Mixed arbitral tribunals: not a dispute between 2 states but a dispute
between a state and a national or legal person of another state. international
centre for the settlement of investment disputes, Iran-united states claims
tribunal,͙
JY Judicial settlement:
ÊY Permanent courts: we talk about judges ( they are not chosen by the parties)
ÊY Judges are not chosen by the parties
ÊY ·xamples: ICJ, ICT§(= international criminal tribunal for the former §ugoslavia
republic), ITLOS(= international tribunal on the law of the sea),·CJ,͙
JY International court of justice:
ÊY Part of UN: those who work for the court, including even the judges, are employed
by the UN. (ipso facto= automatically)
ÊY No extra costs, they pay annually a contribution to UN
ÊY Main traditional body !
Wa willen ze hiermee zeggn?
ÊY Statute: no separate treaty, but is part of charter of UN, so all members of UN are
automatically part of the ICJ.
ÊY Composition:
ëY 15 judges elected with simple majority
ëY They are elected by the general assembly and the security council
ëY The 15 judges must represent all the legal institutions of the world: 3 judges
of Africa (1 for civil law, 1 for common law, 1 for Islamic law), 3 judges for
asia, 2 for east ·urope, 5 for west ·urope and rest and 2 for latin America
ëY Judges ad hoc: when ICJ does not include a judge that hasn͛t the nationality !
Wa willen ze hiermee zeggen?
of a specific party. (Belgium has no judge in ICJ), they have the right to
choose a judge of their nationality.
ëY All judges have international law background
ÊY Competences of ICJ:
ëY Settlement of disputes between states
ëY Only states can file a complaint before the ICJ ( no ind, no
companies,͙)
ëY No system of compulsory jurisdiction within ICJ, the parties should
accept the jurisdiction for that specific case. (in the ·uropean court
of justice the jurisdiction is compulsory)
ëY 4 ways to accept the jurisdiction of the ICJ:
ëY eciprocal declaration: declaration made under a specific
article 36 of statute of ICJ. made by 1 state saying that the
state accepts the compulsory jurisdiction of the court in
relation to any other state accepting the same obligation.
1.Y At this moment only 66 countries made a
declaration that they accepted the jurisdiction of the
court. Only 1/5the of the permanent members of
the security council have accepted the jurisdiction.
(UK accepted) other members:
2.Y ussia: didn͛t accept
3.Y China: refused to accept the declaration made
previously by former nationalist china
4.Y France: originaly the did accept, but the withdrew it.
5.Y Us: originaly accepted, but excluded disputes that
were essentially in the domestic jurisdiction of the
US as to determine by US, but withdrawn
ëY Forum prorogatum: not often used. The state has not !
Snap ik nie veel van!
accepted the jurisdiction but can be implied from some
actions in relation to the procedees (when state is sewed for
ICJ he choses to defend his case.)
ëY Compromise: nothing more than agreement between 2
countries, in which they agree to settle the dispute by the ICJ
ëY Compromissory clause: a specific clause in treaty under
which the parties agree to submit all disputes regarding the
interpretation and application before ICJ.
ëY Most of the cases are compromissory clauses, but also a lot
of cases with declaration.
ëY Admissibility:
ëY No legal interest: ex. When claim is about the loss or harm to
one of the applicants nationals and the respondent asserts
that the person is not a national of the applicant state. The
respondant has no responsabilities towards that person.
ëY ·xhaustion of local remedies: state may not exercise
diplomatic protection or resort to any international
procedure to seek redress for one of its nationals, unless it
has exhausted all the legal remedies available to him in the
state of who͛s action he complains.(ex. Sovjet fighters shot
down an civilian airplane. Uk could immediately demand
compensation because it had no point that relatives would
go to sovjet courts͙.)
ëY Non liquet: because international law is not complete,an
international tribunal should decline to decide a case if the
rules are not available.
ëY The applicable law: the ICJ has to decide cases in accordance with
international law. But if parties agree, the ICJ can decide ex aequo et
bono(= in het eigen vermogen en rechtvaardigheid)
ëY Provisional measures: measures to prevent the respondent from
doing something that might render any eventual judgement more or
less futile. The ICJ is willing to order provisional measures if there is a
real possibility that without them the rights of the applicant could be
affected.
ëY Procedure:
ëY When state files complaint against another state, that state
will:
1.Y Challenge jurisdiction
2.Y Claim of ICJ is not admissible and there are several
grounds for that:
ëY The other state has to exhaust local
remedies
ëY The applicant has no legal interest.
ëY egistrar of the ICJ is the source of all knowledge on
procedure and practice.
ëY Procedure:
1.Y Concise written application with the facts. Or jointly
made application if case comes by the means of a
compromise.
2.Y Parties appoint agents(= formal figure), the day to
day running is done by depute-agent.
3.Y Applicant submits memorial
4.Y Preliminary objections after receipt(=ontvangst) of
memorial. (zie hierboven.)
5.Y ICJ will hear oral arguments on the preliminary
objections and take decision.
6.Y espondent replies with counter memorial
7.Y Pleadings held on the merits.
8.Y Judgement is given at a further public hearing. ·ach
judge can make a separate declaration or give a
separate concurring or dissenting opinion.
ëY Judgement:
ëY Judgement of ICJ is only binding inter partes (between the
parties), but the reasoning can be used for international law.
ëY Separatedissenting opinion: decisions are taken by simple
majority. So a separate opinion means that the judge agree
with the judgment but follows another reasoning. Dissenting
opinion is that they don͛t accept the judgment, neither the
reasoning.
ëY Case pending: instituted by Belgium against Senegal. Dispute about
the former president of Chad who͛s living in Senegal. 10 years ago
some Belgians accused the former president of torture and crimes
against humanity (in 2002), but the president lived already in
Senegal. At first he was indicted. But after 4 months the indictment
is been dismissed because torture and human rights were not
included in Senegal law. In 2007 the Senegal government included
torture and crimes against humanity into the penal code, but they
didn͛t arrest the former president and that͛s why Belgium is accusing
Senegal because they violated the int.law. in fact, they violated 2
important articles:
ëY If person committed torture and is living in a state who
accepted the UN convention . that state is obliged to
prosecute or extradite that person.
ëY All countries are obliged to prosecute or extradite persons
who committed crime against humanity.
ëY In this case they use a compromissory clause in the treaty against
torture. Secondly, both countries have made a declaration accepting
the jurisdiction of ICJ.
ëY Other case: Macedonia against Greece. Because of violation of
bilateral treaty. Goes about the name to be used for Macedonia.
They have applied for membership in NATO. This application was
blocked by Greece. Greece violated the bilateral contract by doing
that, because the contract said that Greece couldn͛t block the
membership of an international organization. But the contract said
also that Greece could block that if they applied under the name of
Macedonia. But not under the name of former §ugoslavian republic
of Macedonia. But Macedonia applied under the right name, so
that͛s why Macedonia condemned Greece for the ICJ
ëY Use of compromisory clause!
ëY Competences of the ICJ: Giving advice and opinion:
ëY Who asks for advisory opinion? Not states! Only specific organs
within UN can ask for advisory opinion ( general assembly, security
council and other UN organs and UN specialized agencies, if
authorized by the general assembly.)
ëY Not binding but very influential
ëY Advisory proceedings referred to the icj: advisory proceedings |
international court of justice.
ë !
JY Measures not involving the use of armed force:
ÊY etortion: is the adoption by one state of an unfriendly and harmful act, which is
nevertheless lawful as a method against another state who has committed an
unlawful act
ÊY Countermeasures(preprisals):
ëY eprisals are acts which are in themselves illegal but because they have been
adopted by one ste in retaliations for the commission of an earlier illegal act
by another state, they are lawful.
ëY equirements:
ëY Proportionality
ëY Not violating humanitarian law
ëY Must stop once they have the desired effect. (once the unlawful act
has ceased)
ëY Obligations not affected by countermeasures:
ëY efrain from the use of force
ëY Protect fundamental human rights
ëY espect the inviolability of diplomatic and consular agents.
ëY espect the rules of ius cogens
JY Measures involving the use of armed force:
ÊY Fundamental principle: states refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any stae
or in any other matter inconsistent with the purposes of the UN (art. 2 par. 4 UN
charter)
ÊY First exception: security council authorizes the use of force (security council
authorizes the use of force ( for various reasons)
ÊY Second exception: self-defence:
ëY Nothing in the present charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a member of the UN
until the security council has taken measures necessary to maintain
international peace and security.
ëY equirements:
ëY Proportionality principle
ëY eporting to the security council
ëY Temporary character
ëY Armed attack has taken place but what about preventive self-
defence and pre-emptive self-defence
ëY Collective self-defence: for instance NATO
ëY Third exeption? Humanitarian intervention and or a responsibility to
protect?
ëY emains controversial
JY Introduction:
ÊY ights of individuals, natural persons, not legal persons
ÊY Initially, this was a purely mational matter. This situation changed because of WW2.
In this period there were a lot of violations against human rights. Countries who
violate these rights are a threat.
ÊY The protection of H became one of the major purposes of the UN.
JY Universal human rights instruments:
ÊY United nations:
ëY Promote respect for human rights: one of the major purposes of the UN (see
art. 1 un charter)
ëY 1946: human rights commission was set up under the auspices of the
·COSOC
ëY 2008: Human rights commission has been replaced by human rights
council
ëY 1948: general assembly adopts universal declaration of human rights:
ëY The universal declaration of human rights
ëY Lists major human rights
ëY Common standard of achievement
ëY Provided the foundation for many treaties, universal and regional
ones
ÊY Treaties:
ëY International covenant on civil and political rights (͚66)
ëY First optional protocol to ICCP (͛66)
ëY Second optional protocol to ICCP (͛89)
ëY International convenant on economic, social and cultural rights
ëY Optional protocol to icescr (͛08)
ëY Other UN treaties:
ëY Convention on the elimination of all forms of racial discrimination
ëY Convention against torture
ëY Convention on the rights of the child
ëY Convention o the elimination of all forms of discrimination against
women.
ëY No obligations for UN members to ratify
ÊY egional human intstruments:
ëY Council of ·urope
ëY ·uropean convention for the protection of Human rights (1950)
ëY Has become a de facto condition for membership of Co·
ëY Protects mainly civil and political rights
ëY ·uropean social charter (1961)+ revised social charter
ëY No obligations for members of Co· to ratify ·SC
ëY 43 states have ratified ·SC
ëY Protects mainly social rights
ëY Organization of American States:
ëY American convention on Human rights (͛69):
ëY No obligation for member states to ratify: 24 states have
ratified the ACH
ÊY Outline of the principal civil and political rights:
ëY ight to life
ëY Prohibition on torture
ëY Prohibition on slavery and forced labour
ëY ight to liberty and security
ëY ight to fair trail
ëY Freedom of thought, conscience and religion
ëY Freedom of expression
ëY Freedom of assembly and association
ëY No punishment without law
ëY Prohibition of discrimination
ÊY Outline of the principle eco, social and cultural rights:
ëY The right to work
ëY The right to social security
ëY The right to education
ëY The right to take part in cultural life
ÊY ·nforcement:
ëY International mechanisms of enforcement:
ëY eporting mechanism
ëY Complaint mechanisms:
ëY Individual complaint procedure
ëY Inter-state complaint procedure
ëY Collective complaint procedure
ëY Independent inquiry
ëY ·uropean convention for the protection of human rights: ·uropean court of
human rights:
ëY Composition: 47 judges: 1 for each member.
ëY Organization:
ëY 5 sections: each section counts 5 judges. ·ach section you
have ind judges, panels of 3 judges and groups of 7 judges.
ëY A grand chamber counting 17 judges.
ëY System of compulsory jurisdiction: once a country has ratified the
convention it also has ratified the jurisdiction of the court. (in
contradiction with the UN, who has no compulsory jurisdiction.)
ëY Competences of this court:
ëY Interstate complaint procedure (= 1 state files complaint
against another state)
ëY Individual complaint procedure (= individual against state)
ëY Countries have to accept both complaint mechanisms.
ëY Procedure for individual complaints:
ëY ecently changed because of the increasing use of the
procedure they had to make it more efficient.
ëY Home come that workload increased the last decade? The
drop of the wall allowed more countries to apply for
membership of the ·U and being member of the ·U, you
have the right to use this procedure.
ëY Need to file complaint within 6 months after you used all
local possibilities.
ëY apporteur will examine your complaint en will decide if
complaint will be referred to 1 judge, 3 judges or 7 judges
(chamber)
ëY 1 judge can only say: ͞your complaint is inadmissible͟
ëY 3judges can say the same as 1 judge but unanimity is
necessary. When no unanimity, the application will be
referred to the chamber. With regard to repetitive cases=
same kind of violations in same country, they are allowed to
take a decision on the merits of the case as well.
ëY Chamber:
ëY 1) can decide on admissibility (majority, not
unanimity)
ëY 2) can decide on the merits.
ëY Procedure to file inter-state complaint:
ëY It͛s easier: the chamber does:
ëY Admissibility
ëY Merits
ëY Judgment is binding, but ·uropean court cannot ask to
change specific country laws.
ëY Committee of ministers of Co· can ask ·uropean court to
interpret final judgment.
ëY ·U can become a party of the ·CH .
ëY Committee of ministers of Co· can initiate proceedings of
non compliance in order to make the state concerned
execute the judgment of the ·CH .
ëY ·uropean social charter and revised social charter: ·uropean committee of
social rights.
ëY Also adopted in framework of Co·, protecting social rights.
ëY Difference in enforcement no obligation to ratify
ëY Composition: no court, but a committee made up of 15 independent
experts, who do not represent the interests of the members of the
Co·.
ëY Consequences of legal value because of use of committee instead of
court: a committee adopts conclusions en decisions, but these are
just recommendations which cannot force a country to follow or
implement the recommendations.
ëY 2 mechanisms:
ëY eporting: examines the reports of states on how they
implement the provisions of the ·SC in law and practices.
ëY Collective complaint procedure:
ëY A specific NGO may file complaint against state.
ëY What kind of NGO͛s can file complaint?
ëY Trade unions.
ëY Organizations of employers
ëY Other NGO͛s defending social rights.
ëY But! Collective complaint mechanism is optional
(only 14 members have ratified͙)
ëY International covenant on civil and political rights: human rights committee:
ëY 65 counties have ratified.
ëY UN, not ·U!!
ëY Composition: committee of 18 experts.
ëY ·nforcement mechanisms:
ëY eporting
ëY Ind. Complaint
ëY Inter- state complaint.
ëY Views (= recommendations)are adopted.
JY Victor Kuchea: he finds that there has been a violation on his human rights. To where can he
go