K1067IB INTERNATIONAL CONTRACT AND

COMPETITION LAW, PART I

THE LEGAL SOURCES -

INTERNATIONAL LAW VS.
NATIONAL LAW

LEA ISOPOUSSU-KOPONEN
THE SOURCES OF INTERNATIONAL LAW

International conventions and treaties

International custom
As evidence of a general practice accepted
as law
The general principles of law
Recognized by civilized nations
THE SOURCES OF INTERNATIONAL LAW
INTL CONVENTIONS AND
T R E AT IE S
States come together
willingly to agree upon legal
standards of behaviour
acceptable to all those
participating in the
lawmaking process (bind
those states who ratify or
adhere to them)
The main and conscious
intent is to bring about
those standards
CUSTOM AND PRINCIPLES
Normally is not deliberate
lawmaking process
The primary concern is to
safeguard some
economical, social or
political interests
Are normally binding upon
all the members of the
world community or of the
regional community
CUSTOM AND PRINCIPLES 1/2
How?
By the international or national court
Do customary rules need, at their birth, the support
of all states?
No
It is sufficient for a majority of states to engage
in a consistent practice corresponding with the
rule and to be aware of its imperative need
CUSTOM AND PRINCIPLES 2/2
Can a state disassociate itself from the rule and
thus remain free of the obligations it imposes?
It is extremely difficult for an individual state
eschew the strong pressure of the vast majority of
members of the community
Whenever a new state emerges in the
international community, it is bound by all pre-
existing rules of the international law
CODIFICATION
Between the 1960s and the 1980s most
members of the international community tend to
prefer treaties to custom
By the UN ILC (International Law Commission), 34
experts, many with diplomatic experience
Such as: Law of the sea, diplomatic and
consular immunities, state responsipility
By the Sixth Committee of the GA (General
Assembly of the UN)
THE MEANS OF CREATING INTL RULES
The conclusion of agreements
Treaties, conventions, protocols, covenants,
acts
they all denote a merger of the wills of two
or more intl. subjects for the purpose of
regulation their interests by intl. rules
The third states may derive rights and obligations
from a treaty only if they consent to assuming the
obligations or exercising the rights laid down in the
treaty
SUBJECTS OF THE INTL COMMUNITY
1. States primary subjects
Full legal capacity: the ability to be vested with
rights, powers and obligations
2. International organizations
3. New subjects in a distinct feature of modern
intl. law
National liberation movements, individuals
2 and 3: limited legal capacity
EUROPEAN UNION A UNIQUE ACTOR
The EU is a unique economic and political partnership
between 28 European countries that together cover much of
the continent.
http://europa.eu/about-eu/index_en.htm
The EU is based on the rule of law
Everything that it does is founded on treaties, voluntarily
and democratically agreed by all member countries.
These binding agreements set out the EU's goals in its many
areas of activity.
Legal personality (since the 2009 signing the Treaty of
Lisbon)
What does it mean?
 THE FUNDAMENTAL PRINCIPLES: THE BASIC
GUIDELINES OF THE LEGAL SYSTEM
The sovereignty of the states Ukraine?
Sovereignty and legal equality
Non-intervention in the internal or external affairs
of other states Ukraine?
Prohibition of threat or use of force
Peaceful settlements of disputes
Self-determination of peoples
Respect for Human Rights Hungary?
HUMAN RIGHTS
The roots of human rights are in the philosophy
In the 1700s the early ideas of the nature right
developed into judicial rights and were then
recorded in national constitutions
Declaration of Human Rights of France
The Bill of Rights of the United States
In the 1800s the principle was accepted in many
independent countries and the confessing of
economical and social rights also began
UNIVERSAL DECLARATION OF HUMAN
RIGHTS
Was accepted in the general meeting of the United
Nations, 10.12.1948
Has received approval of nearly all the countries
The rights that have been mentioned in it have provided
a basis for more than 90 international agreements,
declarations and to other documents merely in the UN
system
It can be justifiably called the most important document
in the field of human rights
 THE REGIONAL ORGANIZATIONS
OF HUMAN RIGHTS
Council of Europe
Was established in 1949
47 countries have ratified it (Finland 1990)
The European Court of Human Rights

Organisation of African Unity

Organisation of American States
COUNCIL OF EUROPE (CE): INTL ORGANIZATION
To promote the common ideals and principles of its
member countries and their economical and
social development according to its basic rule
In the 1950s the EEC (later EU) started to promote
European economic integration
Council of Europe started to support the integration
development in the fields which have stayed
outside the economy
EEC (LATER EC, EU) AND ECHR

The EEC Treaties establishing do not contain any

register of fundamental rights
EC has had no competence to accede to the
Convention
Treaty of Lisbon, came into force 1.12.2009, gives the EU a legal personality

The Member States have ratified the Convention

INTERNATIONAL LAW VS. NATIONAL LAW
CASE FINLAND AS A MEMBER OF EU
The Hierarchy of Legal Orders

ECHR in general: intl. treaties etc.

Finland has ratified and
Primary implemented
Legislation
Community Law
(EU)

The Constitution
National Law

The Secondary Legislation

Community Law (EU)

Acts
National Law

Decrees and other legal orders

National Law
EU, PRIMARY LEGISLATION
Treaties establishing the Communities
Treaties of Accession
Amendments to the Treaties
General principles of law and customary law
Over 700 articles -> adapting is difficult
EU, MAIN TREATIES 1/4
Treaty establishing the European Coal and Steel
Community (1951/1952, expired 23.6.2002)
Purpose: to create interdependence in coal and steel so that one
country could no longer mobilise its armed forces without others
knowing. This eased distrust and tensions after WWII.

Treaties of Rome EEC and EURATOM treaties

(1957/1958)
Purpose: to set up the European Economic Community (EEC) and the
European Atomic Energy Community (Euratom).
Main changes: extension of European integration to include general
economic cooperation.
Single market: free movement of people, goods, services, capital
EU, MAIN TREATIES 2/4
Merger Treaty - Brussels Treaty (1965/1967)
Purpose: to streamline the European institutions.
Main changes: creation of a single Commission and a single Council to serve the
then three European Communities (EEC, Euratom, ECSC). Repealed by the Treaty
of Amsterdam.
Single European Act (1986/1987)
Purpose: to reform the institutions in preparation for Portugals and Spain's
membership and speed up decision-making in preparation for the single market.
Main changes: extension of qualified majority voting in the Council (making it
harder for a single country to veto proposed legislation), creation of the
cooperation and assent procedures, giving Parliament more influence.
EU, MAIN TREATIES 3/4
Treaty on European Union - Maastricht Treaty (1992/1993)
Purpose: to prepare for European Monetary Union and introduce elements of a political
union (citizenship, common foreign and internal affairs policy).
Main changes: establishment of the European Union and introduction of the co-
decision procedure, giving Parliament more say in decision-making. New forms of
cooperation between EU governments for example on defence and justice and home
affairs.
Treaty of Amsterdam (1997/1999)
Purpose: To reform the EU institutions in preparation for the arrival of future member
countries.
Main changes: amendment, renumbering and consolidation of EU and EEC treaties.
More transparent decision-making (increased use of the co-decision voting)
EU, MAIN TREATIES 4/4
Treaty of Nice (2001/2003)
Purpose: to reform the institutions so that the EU could function efficiently after
reaching 25 member countries.
Main changes: methods for changing the composition of the Commission and
redefining the voting system in the Council.
Treaty of Lisbon (2007/2009)
Purpose: to make the EU more democratic, more efficient and better able to address
global problems, such as climate change, with one voice.
Main changes: legal personality, more power for the European Parliament, change of
voting procedures in the Council, citizens initiative, a permanent president of the
European Council, a new High Representative for Foreign Affairs, a new EU diplomatic
service.
The Lisbon treaty clarifies which powers belong to the EU / to EU member states / are
shared.
EU, SECONDARY LEGISLATION
Regulations
E.g. The general data protection regulation entered into
force on 24th May 2016 and it will apply from 25 May 2018:
Regulation (EU) 2016/679 of European Parliament and of
the Council of 27 April 2016
Directives / ECSC recommendations
General and individual decisions
THE EUS RANGE OF TOOLS
National arrangements must be replaced by the EU
legislation, if the same arrangement must apply in all
Member States
If there is not that kind of need
> The legal orders of the Member States must be enforced
CONFLICT BETWEEN EU LAW AND NATIONAL
LAW

1. Direct applicability of EU Law

2. Primacy of EU Law
DIRECT APPLICABILITY OF EU LAW 1/2
EU Law confers rights and imposes obligations directly
on
The EU Institutions
The Member States
The EUs citizens
DIRECT APPLICABILITY OF EU LAW 2/2
Which provisions of EU Law are directly applicable?
All the provisions of the founding Treaties, which
Set out absolute conditions,
Are complete themselves and therefore
Do not require any further action on the part of the Member
States or Community institutions
PRIMACY OF EU LAW
What happens if a provision of EU law conflicts with a
rule of national law?
EU legislation contains no express provision on the question
Only way of settling conflicts is to grant EU law primacy, because
Not very much would remain of the EU law, if the answer were
different
SOURCES

Cassese, A., International Law, 2005, 2nd

edition, Oxford University Press.
Isopoussu-Koponen, L., Legal Sources, 2015.
Handout.