The Law of Regional Integration: Lecture 1Prof. Katarzyna Gromek-Broc

2014/2015

Introductory Issues

1. General presentation

2. Teaching methods

3. Expectations and requirements

4. Overview of the programme

An Overview of the course

What shall we know in the end of this course? What are the Learning Outcomes?

In the end of this course we should be able to understand the legal framework:

rules and principles governing the regional integration, with the emphasis on EU Law,

some elements of the law governing International Treaties, a few basic concepts of Public International Law.

The course will also incorporate some interdisciplinary elements (political, social and economic aspects).

Overview of the Course

The course will provide an insight into the theory and practice of the Law applicable to regional integration.

The course has a theoretical part and a practical part.

The first part has two purposes: to consider the relevant principles, rules and procedures to look at International Treaty Law

In addition, to examine various approaches to integration (the theories of integration and their application to a particular examples).

An Overview of the course

The second purpose of the course is to demonstrate some practical implications and to show how the law works in practice

This practical part will be based upon the analysis of different patterns of regional integration:

a) legal framework (treaties and other sources),

b) functions, structure

c) powers of the main institutions, mechanisms of law enforcement

An Overview of the course

The Programme of the Course

The programme covers some relevant elements of

a) International Treaty Law (negotiation, conclusion, ratification and amendment of the treaties),

b) the principle of conferral; fulfilment of the obligations arising out of the Treaties,

c) regional courts of justice;

e) relationship between international and national law.

f) Practical application: It examines some examples of regional integration (the EU, the Andean Pact, Mercosur, etc.).

An Overview of the course

Structure of the Course: There is also a place for flexibility according to your preference.

Each week (with the exception of the first one);

a) one class will be devoted to the study of legal principles, rules and procedures,

and

b) one class to the study of one or two concrete cases of regional integration, based upon the theoretical elements that will have been acquired during the previous classes

An Overview of the course

To be more specific:

1) A first part of the course will be focusing on the relevant rules in principles of International Treaty Law, based upon the provisions of the Vienna Convention on the Law of Treaties, as well as on institutions of regional integration, their functions, set-up and powers.

2) A second part will focus on specific instruments of law enforcement.

The case studies will enable students to understand how the legal rules, principles, procedures etc. apply in practice

The programme: a choice of themes

1. The Law of the Treaties. The nature and function of Treaties. General Principles applicable to the Treaties

2. (re-) introduction to the Vienna Convention on the law of the treaties (VCLT) Negotiation and conclusion of international treaties

3. Entry into force of international treaties; alternatives legal sources for regional integration Readings: VCLT, arts. 6-25+39-41+76-80.

4. Sanctions and enforcement of international obligations

5. Specific examples of regional integration

Assessment

Class Participation 25% of overall mark,

Class Presentation 25 % of overall mark,

Short Paper 25% of overall mark,

Oral Examination 25% of overall mark

We need to choose the topic for your presentation:

The presentation: a collaborative work in a group oral presentation.

Expectations

Students will have to bring to each class a print-out of the Vienna Convention on the Law of Treaties (accessible on-line in the ‘Area riservata’); relevant extracts of regional treaties and other legal instruments will have to be brought to the class according to the indications given in advance by the teacher.

Reading:

1. Antonio CASSESE, International law, Oxford University Press, Oxford-New York, second edition, 2005;

2. Robert SCHÜTZE, European Constitutional Law, Cambridge University press, 2012.

Further reading:

Crawford J.,Brownlie’s Principles of Public International Law, (8th ed., OUP) 2012

Cannizaro E., The Law of the Treaties beyond the Vienna Convention (OUP) 2011

Lecture 1

General observation on the nature of the law applicable to the Treaties

Classification of sources: how relevant for international law?

In the national context a lawyer would distinguish between formal sources and material sources of law

Formal sources are those methods and legal procedures that aim at the creation of rules of general application which are legally binding on their addressees

The material sources provide evidence of the existence of rules, they have a status of legally binding rules of general application

Lecture 1 The distinction between formal and

material sources is difficult to maintain in international law

To an extent formal sources do not exist in International law

Why?

Multilateral Treaties although they codify and develop international law, they are lacking the quality to bind states generally

Lecture 1

The International treaties form a part of international Law and certainly contribute to its development.

Nevertheless, there are some difficulties with the law enforcement at the international level which are inexistent in domestic legal systems.

Why? At the international level there is no constitutional machinery of law-making which exists within the states (therefore the system is weaker)

What do we have instead?

As a substitute or an equivalent there is an accepted PRINCIPLE that the general consent of states creates rules of general application.

Custom: as perceived in International law is an expression of this principle

General Principles of Law

Lecture 1

Multilateral Treaties: Blurred distinction between formal and material sources : there is evidence (material) of existence of consensus among states concerning particular rules or practices

Multilateral treaties are very material evidence of the attitudes of the states towards particular rules and the presence or absence of consensus

The Law of the Treaties concerns the question of the content of obligations between individual states: the incidence of obligations resulting from express agreement

Lecture 1

The issue here is the general application

Can we say that the rules are of general application?

The multilateral treaties are binding a few states only as opposed to general international law

Thus, treaties create particular obligations and the treaties are a source of obligations and NOT a source of rules of general application.

classical sources of international lawAre listed in Article 38 (1) of the Statute of the International Court of Justice such as:

• treaties

• customary international law

• general principles of international law

• judicial decisions

• writings of eminent jurists

• soft law

• resolutions of organs of international organisations

• unilateral acts

• jus cogens.

International custom

Art 38 refers to custom as one of the principal sources of international law.

It refers to “international custom, as evidence of general practice accepted as law”

What is sought here: a general recognition among States of a certain practice as obligatory.

Coming to the point of the previous distinction between formal and material sources:

Material source of custom: Evidence could be diplomatic correspondence, policy statement, press releases, official manuals on legal questions; eg manuals on military law, executive decisions and practices, orders to naval forces

Elements of Custom

1. Duration (consistency and generality of practice must be proved) but no particular duration is required

2.Uniformity, consistency of the practice (complete uniformity is not required but substantial uniformity,

3. Generality of the practice (substantial number of States)

4.Opinio juris et necessitatis: Statute of International Court refers “a general practice accepted as law” (certain practice considered as obligatory)

General Principles of Law

Article 38(1)(c) of the Statute of the International Court refers to ‘the general principles of law recognised by civilised nations’

A no exhaustive list with quite flexible boundaries.

Descamps refers to the concept of natural law “the rules of international law recognised by the legal conscience of civilised people”

Root & Phillimore: principles ‘are rules accepted in the domestic law of all civilised states’.

General Principles of Law

An example of categorisation:

principle of consent, reciprocity, equality of states, the legal validity of agreements, good faith

General Principles

Article 38 of the statute of the ICJ recognises that,

there are certain general principles common to all systems of law which can be identified.

General Principles: examples

Principle of good faith.

This principle has fundamental importance in the law of treaties, as codified in Article 26 VCLT 1969. This principle has been mentioned in many judgments of the ICJ. Examples include the:

1974 Nuclear Test case, when the Court said ‘one of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith’

General Principles

Principle of equity.

According to Brownlie, Principles of Public International Law, sixth edition, page 25:

“‘Equity’ is used … in the sense of consideration or fairness, reasonableness, and policy often necessary for the sensible application of more settled rules of law. Strictly, it cannot be a source of law and yet it may be an important factor in the process of decision. Equity may play a … role in supplementing the law or appear unobtrusively as a part of judicial reasoning.”

Many environmental treaties are based on this principle, such as the 1997 United Nations Convention on Non-Navigational Uses of International Watercourses.

The law of the Treaties

Treaties today are the most common source of international law

norms. Certain areas of international law, such as international

environmental law, are almost exclusively regulated by treaties.

Definition of the Treaty

A brief definition of a treaty is contained in Art. 2(1)a VCLT 1969.

However, this definition is only for the purpose of the Convention, although it is assumed to reflect a general definition (with certain exceptions ):

“

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

Not always named as Treaty but

Treaties may have different names, such as:

Convention

Agreement

Protocol

Pact

Charter.

Treaties concluded between States may be:

bilateral (i.e. concluded between two States)

multilateral (i.e. concluded by more than two States)

Law of treaties: Section A 12

or universal (i.e. if they bind almost all States (e.g. the 1945

UN Charter or the 1973 Convention on International Trade in

Endangered Species of Fauna and Flora – CITES – which has

almost 160 parties).

The content of treaties

Regarding the content of treaties, the following distinction may be

made:

so-called ‘law-making treaties’ (traités lois)

and ‘contractual treaties’ (traités-contrats).

This division is based on the principle that the treaties of the first

category establish general patterns of behaviour for the parties over

a certain period of time in certain areas.

The treaties belonging to the second category regulate some specific co-operation between States, such as a transboundary movement of specific hazardous waste. However, a strict and inflexible division is very difficult to uphold, as there is no clear-cut line between these two categories.

’.

The Treaties

law-making treaties ( or normative treaties), as observed by the Special Rapporteur of the International Law Commission, Alain Pellet: “They are not based on a contractual reciprocal basis.”

However, a treaty is rarely entirely normative or entirely reciprocal (synallagmatic). In most cases, there is a mixture of variety of categories of norms.

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