University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD

University of Macerata 2014-2015 Prof. Avv. Roberto Baratta, PhD

UNIVERSITY OF MACERATA PROF. AVV. ROBERTO BARATTA, PHD INTERNATIONAL INSTITUTIONS LAW 10 THE LAW-MAKING BY IIS AN II HARDLY EXISTS IF IT IS NOT ABLE TO CREATE LEGAL INSTRUMENTS. ASSUMING THAT THE UNDERLYING CONCEPT OF IIS IS THAT THEY ARE SEPARATE ACTORS WITH RESPECT TO THEIR MEMBERS, IT IS CONSEQUENTIAL THAT IIS MAY BE ENGAGED IN LAW-MAKING ACTIVITIES. HOWEVER, EVEN THOUGH ONE CONSIDERS AN II AS A MERE AGGREGATE OF STATES, IT IS STILL CONCEIVABLE TO THINK THAT ACTS OF A GIVEN I MAY BE RELEVANT IN LEGAL TERMS: E.G. PREPARATION OF DRAFT TREATIES SUBMITTED FOR SUBSEQUENT RATIFICATION TO MS

WHAT ULTIMATELY MATTERS IS THE CONSTITUENT INSTRUMENT OF THE II: DOES IT, AND TO WHAT EXTENT, PROVIDE FOR SOME LAWMAKING ACTIVITY? SO IT IS THE WILL OF THE STATES, BUILT-IN IN THE FOUNDING TREATY, THAT MATTERS. DIFFERENT CATEGORIES OF LAW INSTRUMENTS SOME ACTS HAVE LAW-MAKING NATURE (I.E. CREATION OF GENERAL AND ABSTRACT RULES): E.G. EU REGULATIONS (THEY ARE BINDING AND DIRECTLY APPLICABLE WITHIN THE TERRITORY OF THE MS); SOME DECISIONS OF THE UN GA WHICH BIND ALL MS ADMINISTRATIVE ACTS ARE MEANT TO APPLY THE LAW: E.G. EU DECISIONS AND SC DECISIONS

ACTS RELATING TO THE INTERNAL FUNCTIONING OF THE I.: E.G. DECISIONS CONCERNING THE BUDGET OF THE I, OR THE ELECTIONS OR SELECTION OF OFFICIALS NON-BINDING ACTS - IT IS A LARGE CATEGORY OF ACTS AIMED AT INFLUENCING BEHAVIOUR BUT WITHOUT CREATING LAW. MANY IIS ADOPT RECOMMENDATIONS, DECLARATIONS, CODES OF CONDUCT, GUIDE-LINES AND SO ON. THEY ARE OFTEN USED BECAUSE IF ALL DECISIONS HAVE TO BE TAKEN UNANIMOUSLY, THE I WILL BE UNWORKABLE. STATES DO NO LIKE MAJORITARIAN BINDING DECISIONS EITHER. SO, NON-BINDING ACTS TAKEN AT MAJORITY ARE A USEFUL DEVICE SOFT-LAW IS IN BETWEEN BINDING RULES AND NON-BINDING RULES. SOFTLAW ACTS ARE NOT LAW. YET THEY CANNOT BE DEEMED TO BE DEVOID OF LEGAL EFFECTS. IT IS AN AMBIGUOUS CONCEPT AND, ACCORDING TO SOME AUTHORS, THE IDEA OF SOFT-LAW IS TO BE DISCARDED IIS BINDING ACTS

SOME EXAMPLES: ICAO (INTERNATIONAL CIVIL AVIATION AUTHORITY) HAS THE POWER TO ESTABLISH RULES REGULATING AIRCRAFTS FLYING OVER THE HIGH SEAS WHO (WORLD HEALTH ORGANISATION) ENACTS REGULATIONS ON ISSUES AS THE NAMES TO BE USED TO DESCRIBE DISEASES, OR SANITARY AND QUARANTINE REGULATIONS IAEA (INTERNATIONAL ATOMIC ENERGY AGENCY) ADOPTS SAFETY STANDARDS ON IAEAS OWN OPERATIONS UN SC IN RECENT YEARS HAS STARTED TO LEGISLATE: SEE RESOLUTIONS ON TERRORISM AND DISARMAMENT THAT ARE CONSIDERED TO GO BEYOND MERELY APPLYING EXISTING CHARTER PROVISIONS AND, INSTEAD, SEEM TO LAY DOWN NEW RULES. CRITICS OF THIS EVOLUTION: HOW CAN THE SC LEGISLATE GIVEN ITS LACK OF LEGITIMACY? SC IS NOT VERY REPRESENTATIVE OF ALL INTERNATIONAL COMMUNITY. UNCONVINCING ARGUMENT? THE UNGA NORMATIVE POWERS

- UNDER UN CHARTER, THE GA NORMATIVE POWERS ARE RATHER LIMITED - UNDER ARTICLE 17, IT APPROVES THE BUDGET AND DECIDES ON THE APPORTIONMENT OF EXPENSES ACCORDING TO ARTICLE 4, IT HAS THE FINAL SAY ABOUT ADMISSION OF MEMBERS NEVERTHELESS, THE GA ADOPTS NON-BINDING INSTRUMENTS, NAMELY RESOLUTIONS, THAT MAY BE HIGHLY RELEVANT IN SOUTH WEST AFRICA CASES (1966), ICJ REMARKED FLATLY THAT WHATEVER PERSUASIVE FORCE RESOLUTIONS MAY POSSESS, THIS FORCE OPERATES ON THE POLITICAL LEVEL (ICJ REPORTS, 6 PARA. 98) THAT DOES NOT MEAN THAT RESOLUTIONS ARE DEPRIVED OF LEGAL EFFECTS: i)

THEY MAY REFLECT A PRACTICE CONTRIBUTING TO THE INTERPRETATION OF THE CHARTER. THUS, EVEN THOUGH THEY ARE NOT AUTHORITATIVE ACTS PER SE (ARGUING FROM THE FACT THAT THE CHARTER DOES NOT AUTHORIZE THE GA TO MAKE AUTHORITATIVE INTERPRETATION OF THE CHARTER), RESOLUTIONS MAY REFLECT A PRACTICE OF BOTH THE INSTITUTIONS AND MS AS REGARDS THE INTERPRETATION OF THE CHARTER II) GA RESOLUTIONS CAN BE CONSIDERED AS EVIDENCE OF OPINIO JURIS, AS THE ICJ STATED IN THE NICARAGUA V USA CASE (PARA. 188), AND CONFIRMED IN ITS OPINION ON THE LEGALITY OF NUCLEAR WEAPONS (ICJ REPORTS, 1996, PARA. 170). III) GA RESOLUTIONS AS INSTANT CUSTOMS. INSPIRED BY THE RAPID ACCEPTANCE ON A FEW GA RES. ON OUTER SPACE, PROF. BIN CHENG THEORIZED THE CONCEPT OF INSTANT CUSTOM. VOTING IN FAVOUR AMOUNTS TO BEING ACTUAL BEHAVIOUR REVEALING IN ESSENCE STATE PRACTICE (DIUTURNITAS) IT IS A CONTRADICTION IN TERMS. ALTERNATIVELY, RESOLUTIONS OF THIS KIND:

- MAY EMBODY AGREEMENT OF STATES VOTING IN FAVOUR AND, THUS, BE CONSIDERED AS AGREEMENT IN SIMPLIFIED FORM - MAY BE EXPLAINED AROUND THE NOTION OF ESTOPPEL: STATES WHICH VOTED FOR SOMETHING WOULD BE PRECLUDED FROM PRACTISING THE OPPOSITE. EVEN ESTOPPEL DOCTRINE MAY BE DEBATED: VOTING IS NOT THE SAME AS MAKING UNILATERAL PROMISES - LAUTERPACHT ASSUMPTION: GA RES ARE BINDING IN THE SENSE THAT MS MUST CONSIDER THEM IN GOOD FAITH; WHILE THE AUTHOR ADMITTED THAT THAT IS AN EMPTY OBLIGATION (ICJ 1988,

TRANSPORTER ARMED ACTION CASE: GOOD FAITH IN ITSELF DOES NOT CREATE LEGAL OBLIGATIONS) EU LAW INSTRUMENTS: AN OVERVIEW EU INSTITUTIONS HAVE BEEN MANDATED, UNDER CERTAIN LAWMAKING PROCEDURES, TO CREATE BINDING LEGISLATION BOTH FOR INDIVIDUALS AND MS TWO BROAD CATEGORIES OF ACTS: BINDING AND NON-BINDING ACTS. MOREOVER, EU INSTITUTIONS HAVE CREATED ANOTHER RANGE OF ACTS NOT MENTIONED IN THE TREATIES (THE SO-CALLED ATYPICAL ACTS) BINDING ACTS: I) REGULATIONS NORMATIVE INSTRUMENTS PAR EXCELLENCE : BINDING IN THEIR ENTIRETY (IN PRINCIPLE MS ARE EVEN PREVENTED TO PERFORM ANY TRANSFORMATION OPERATION) ; DIRECT

APPLICABILITY (THEY ENTER WITHIN THE DOMESTIC LEGAL ORDERS WITHOUT FURTHER ADO); II) DIRECTIVES BINDING AS FAR AS THE RESULT IS CONCERNED, AND LEAVE MS THE CHOICE AS TO HOW TO ACHIEVE THAT RESULT; LEGAL OBLIGATION TO IMPLEMENT THEM WITHIN THE DOMESTIC ORDER; III) DECISIONS MAY BE REGARDED, BY AND LARGE, AS ADMINISTRATIVE ACTS (E.G. COMMISSION DECISIONS REGARDING ANTITRUST OR MERGER AND ACQUISITIONS) ARE BINDING; BUT DO NOT CREATE ABSTRACT AND GENERAL RULES FOR THE CITIZENS. THEY CAN EVEN BE ADDRESSED TO MS EU LAW INSTRUMENTS NON-BINDING ACTS (RECOMMENDATIONS AND OPINIONS) GRIMALDI RULING (1989) ATYPICAL ACTS (ACTION PROGAMS; GUIDELINES; CODES OF CONDUCT; RESOLUTIONS) FOCUSING ON THEIR CONTENT, ECJ HAS OFTEN FOUND THAT SOME LEGAL EFFECTS MAY BE DERIVED FROM THESE ACTS

INTER-INSTITUTIONAL AGREEMENTS, IIA (ARTICLE 295 TFEU): AN IIA INVOLVING THE COUNCIL MAY BIND MS INDIVIDUALLY AND JOINTLY? THE RELEVANCE OF THE DUTY OF LOYAL COOPERATION ECJ HAS HELD THAT THERE IS HIERARCHY BETWEEN DIFFERENT SOURCES OF LAW, AND ABOVE ALL THE NEED TO RESPECT PRIMARY LAW IN THE SENSE THAT EU INSTITUTIONS MAY NOT INFRINGE THE TREATIES: SUCH ACTS WOULD BE TANTAMOUNT TO AN AMENDMENT WHICH HAS NO LEGAL EFFECT (DEFRENNE V SABENA CASE, 1976) CFSP ACTS LAW CREATION THROUGH CONVENTIONS

ANOTHER MEANS TO CREATE LAW FOR IIS IS SPONSORING THE CONCLUSION OF TREATIES BETWEEN MS - THE UN SYSTEM: INTERNATIONAL LAW COMMISSION IS RESPONSIBLE FOR THE CODIFICATION AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW. IT HAS BEEN THE BREEDING GROUND FOR A NUMBER OF IMPORTANT CONVENTIONS, SUCH AS THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES. LIKEWISE, THE COUNCIL OF EUROPE: A NUMBER OF TREATIES, INCLUDING THE ECHR, HAVE BEEN CONCLUDED WITHIN THE FRAMEWORK OF THIS ORGANIZATION THE STANDARD TECHNIQUE: DRAFTING A TREATY WHICH WILL THAN BECOME BINDING UPON THOSE WHO RATIFY IT. A SECOND TECHNIQUE - OPTING-OUT PROCEDURES ADOPTED BY THE WHO: MS HAVE A CERTAIN PERIOD OF TIME TO MAKE IT KNOWN THAT THEY DO NOT ACCEPT A CERTAIN CONVENTION. THIRD TECHNIQUE THE CONVENTION APPLIES PROVISIONALLY, AWAITING THE DECISION OF MS EITHER TO OPT-IN OR TO OPT-OUT IIS HAVE THE TASK OF APPLYING THE LAW

OFPERSPECTIVE, THE CONSTITUENT TREATY IN THIS IIS ENACT ALMOST EXECUTIVE POWERS. THE CLEAREST EXAMPLE IS THE EU COMMISSION: AMONG ITS PREROGATIVES IS THE FACILITY TO ENACT A DECISION THAT SHALL BE BINDING IN ITS ENTIRETY UPON ITS ADDRESSEE. SIMILARLY, THE COMMISSION HAS FAR-REACHING POWERS IN THE FIELD OF COMPETITION LAW (WHETHER COMPANIES VIOLATED EU RULES ON ANTI-TRUST; AND IN THE FIELD OR MERGER AND ACQUISITION; AND WHETHER MS INFRINGED STATE-AIDS RULES; IT IS AGAIN THE COMMISSION WHICH DECIDES ON ANTI-DUMPING DUTIES AGAINST FOREIGN EXPORTERS) UNSC: IT HAS THE POWER TO TAKE BINDING DECISIONS UNDER CHAPTER VII OF THE CHARTER THIS POWER IS LAID DOWN IN ARTICLE 25, HOLDING THAT MS AGREE TO ACCEPT AND CARRY OUT THE DECISIONS OF THE SC IN ACCORDANCE WITH THE PRESENT CHARTER THE SC POWER DOES NOT INCLUDE LAW-MAKING, BEING IT RATHER LIMITED TO MAKING DECISIONS. THERE IS A FINE LINE BETWEEN THEM. SO, IF THE SC JUSTIFIES ITS ACTIVITY IN TERMS OF

THEORIES OF LAW-MAKING A THEORETICAL ANALYSIS TWO THEORIES OF LAW-MAKING: WHAT IS THE LEGAL FOUNDATION OF LAW-MAKING? i) TREATY ANALOGY: SINCE THE STATES PARTICIPATE IN THE LAW-MAKING PROCEDURE THROUGH THEIR REPRESENTATIVES, LAW-MAKING ACT ARE BINDING. LAW-MAKING ACTS AS ANALOGOUS TO TREATIES. THIS THEORY IS DISCARDED BECAUSE DOES NOT EXPLAIN THE BINDING NATURE OF MAJORITY DECISIONS DELEGATION OF POWER: IF MS DELEGATES SOME LAWMAKING POWERS TO A PARTICULAR II, THE RELATED ACTS ARE BINDING FOR THEM II)

- THIS THEORY IS CONFIRMED BY NATIONAL CONSTITUTIONS: E.G. ARTICLE 92 OF THE DANISH CONSTITUTION STATES THAT POWERS MAY BE TRANSFERRED TO IOS; LIKEWISE, ARTICLE 23 GERMAN BASIC LAW AS REGARDS EU; AND ARTICLE 11 ITALIAN CONSTITUTION (L'ITALIA RIPUDIA LA GUERRA COME STRUMENTO DI OFFESA ALLA LIBERT DEGLI ALTRI POPOLI E COME MEZZO DI RISOLUZIONE DELLE CONTROVERSIE INTERNAZIONALI; CONSENTE, IN CONDIZIONI DI PARIT CON GLI ALTRI STATI, ALLE LIMITAZIONI DI SOVRANIT NECESSARIE AD UN ORDINAMENTO CHE ASSICURI LA PACE E LA GIUSTIZIA FRA LE NAZIONI; PROMUOVE E FAVORISCE LE ORGANIZZAZIONI INTERNAZIONALI RIVOLTE A TALE SCOPO). DELEGATION OF POWERS TO IIS MS GIVE THE II THE POWER TO ADOPT BINDING ACTS; THEY ACCEPT THESE ACTS AS BINDING. SO THE POWER DERIVES FROM THE WILL OF THE MS THE CONSENT OF MS IS DEEMED DECISIVE FURTHER, IIS MAY CONTRIBUTE TO DEVELOPMENT OF

CUSTOMARY INTERNATIONAL LAW. IN THE NICARAGUA CASE (1986), THE ECJ HELD GA RESOLUTIONS CAN BE EVIDENCE OF OPINIO JURIS. HOWEVER, THE ICJ CONSIDERED THE WILL OF THE MS EXPRESSED WITHIN THE GA. SO, AGAIN WHAT MATTERS IS THE CONSENT OF MS IIS AS INTERNATIONAL LEGISLATORS. IIS ADOPT BINDING ACTS IN THE INTERESTS OF MANKIND ACCORDING TO SOME AUTHORS, THE UN GA IS COMPARED TO AN INTERNATIONAL PARLIAMENT. UNCONVINCING APPROACH IS THERE A CONVINCING THEORETICAL EXPLANATION OF LAW-MAKING? DELEGATION OF POWER TRANSFERRAL OF SOVEREIGNTY IN THE EU

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