Dr Paweł Filipek

International Law (1)

Introduction
INTERNATIONAL LAW? … LAW?
 What is International Law?
 What is law? How does it work?
 How is it different from other social rules?
behavioral, moral, religious, etc.
 What is a legal system?
 How are different systems interrelated?
International Law, European Law, domestic law
THE TERM „INTERNATIONAL LAW”
Names:
 Older terminology:
o ius gentium, ius inter gentes (łac.),
o law of nations (ang.),
o droit des gens (fr.),
o Völkerrecht (niem.),
o prawo narodów (pl)
 ‘International Law’, Jeremy Bentham, 1780
 … AND WHAT IS ‘LAW’ ?

Ius est ars boni et aequi

– Law is the art of (what is) good and right/fair

‘Law’ vs ‘right’:
 (objective) LAW – body of legal rules, general and abstract;
indicate required conduct, created by authorized institutions
and secured by legal sanctions
 (subjective) RIGHT – specific entitlement of a private
person, individual; right to …, freedom of …; a possibility to do
sth or to request sb. to do sth
LAW AND OTHER NORMATIVE SYSTEMS
 good conduct, savoir vivre, Kinderstube
 ethics, morality
 religions, beliefs, etc.

Law: Ethics, morality:

 (more) formal law-making  spontaneous, informal making
 formal sources: legislative acts,  informal sources: value
int’l agreements judgments, expectations
 legal sanctions  psychological sanctions
 manifested behaviour matters  thoughts matter as well
 natural persons, legal persons  natural persons
 related to public authority  unrelated to public authorities
… A SYSTEM OF LAW?
Nature and content of a system of law:
1. inclusion clauses: law-making
2. substantial / material rules: prescribed conduct, rights and obligations
3. dispute settlement, law enforcement

Various legal systems

International European (EU) National (domestic)

DEFINING INTERNATIONAL LAW
What is understood as „International Law”?
 Traditional definition:
Law that governs the relations between states amongst
each other
 Development of International relations and law
Consists of rules and principles of general application dealing with the
conduct of states and of international organizations, and with their relations
inter se, as well as with some of their relations with persons, whether natural
or juridical (American Law Institute)

 Public vs. Private International law?

BRANCHES OF INTERNATIONAL LAW
 Law of war
 Law of war and law of peace
 Law of peace and law of war
Today: No specific classification
o General notions
o History and development
o Sources of IL (law of treaties, other sources, ...., unilateral acts)
o Subjects of IL (states, international organizations, ...)
o Diplomatic and consular law
o Population (citizenship, foreigners, human rights, extradition, ....)
o International organizations (UN, EU, CoE, OSCE, OECD, WTO, IMF, ...)
o Peaceful settlement of disputes (judicial and non-judicial)
o Law of military conflicts and humanitarian law
 RELATIONS: INT’L – EU – DOMESTIC LAWS

International Law:
• International agreements
• International custom
• General principles of law Contribution to making
Source of EU primary • Law-making resolutions
law (founding treaties), of Int’l Law: by
Contribution to of int’l organizations concluding int’l
in part also the source Obligation to comply,
making of Int’l Law: agreements and state’s
of EU secondary transformation or
by concluding int’l law-making practice on
legislation incorporation into
agreements and EU int’l level
law-making practice on domestic law
int’l level

Making EU primary law (treaties), contribution

EU Law: to making EU secondary legislation
Domestic law (PL):
• Founding treaties • Constitution
• EU regulations • Ratified int’l agreements
• EU directives • Statues (bills, acts)
• EU decisions • Regulations
• other acts … Principles of implementation, primacy • Local law
and direct effect
INTERNATIONAL VS DOMESTIC LAW

International Law: Domestic Law:

 Horizontal system  Vertical system

(no supreme legislator, (supreme legislator,

equality principle) inequality?)
 Subjects of law: states, int’l  Subjects of law: natural and
organizations legal persons
 Sources of law: int’l  Sources of law: constitution,

agreements, custom, … statutes (bills), regulations,

 Settlement of disputes:  Settlement of disputes:
no compulsory court compulsory court
jurisdiction, limited jurisdiction, organized
enforcement mechanisms enforcement mechanisms
TRANSFORMATION
Transformation of Int’l Law to National Law:
 General transformation clause
After promulgation thereof in the Journal of Laws of the Republic of Poland
(Dziennik Ustaw), a ratified international agreement shall constitute part
of the domestic legal order and shall be applied directly, unless its
application depends on the enactment of a statute.
Art. 91 (1) Constitution of Poland

 Specific transformation – of other (not ratified) int’l

agreements, int’l custom, etc.
Adoption of specific provisions (case-by-case basis = not general),
conduct of state bodies, domestic case-law, etc.
IS THERE SOME HIERARCHY IN INT’L LAW?
No hierachy of sources,
some hierarchy of individual legal rules Ius UN
 Ius cogens (peremptory norms) … a peremptory
cogens obligations
norm of general international law is a norm accepted and
recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general
international law having the same character. (Art. 53 VCLT)
 UN obligations: In the event of a conflict between the Other IL
obligations of the Members of the United Nations under the rules
present Charter and their obligations under any other
international agreement, their obligations under the present
Charter shall prevail. (Art. 103 UN Charter)
 Other binding rules of int’l law
(ius dispositivum) Soft law
 Soft law
HIERARCHY AMONG SOURCES OF EU LAW
Rules of hierarchy:
VERTICAL – between sources of different rank:
• lex superior derogat legi inferiori
— supremacy of primary law over secondary law
— (de facto) relationship between legislative acts and delegated and
implementing acts

HORIZONTAL – between sources of the same rank:

• lex specialis derogat legi generali
• lex posterior derogat legi priori
• lex posterior generalis non derogat legi priori speciali
GEOGRAPHICAL SCOPE OF INT’L LAW
Scope of application
of International Law

universal rules multilateral rules bilateral rules

Ius cogens, European Convention on Human Rights Polish-German Good

UN obligations Neighbourhood Treaty

Constitutive Act of the African Union

Dr Paweł Filipek

International Law
Sources of International Law. Law of treaties
GENERAL TYPOLOGY OF SOURCES OF LAW
Sources of law

Sources of Sources of validity

knowledge of law (binding force) of law

Material sources Formal sources

Int’l agreements (treaties)

Int’l custom

General principles of law

Law-making resolutions of
int’l organizations
ART. 38 ICJ STATUTE

1. The Court, whose function is to decide in accordance with international law

such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
Treaties (International Agreements)

4
DEFINING AN INTERNATIONAL AGREEEMENT

 Int’l Law doctrine:

Consistent statements of will of two or more subjects of
international law, which create rights and obligations effective
under international law

 Vienna Convention, Art. 2 (1):

“treaty” means an international agreement concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation
NAMES OF INT’L AGREEMENTS
• International Covenant on Civil and Political Rights (1966)
• Statute of the Council of Europe (1949)
• European Social Charter (1961)
• Concordat between the Holy See and the German Reich (1933)
• Third Additional Protocol to the European Convention on Extradition (2010)
• Treaty on the Nonproliferation of Nuclear Weapons (1968)
• Constitution of the International Labour Organisation (1919)
• Convention on Cybercrime (2001)
• General Agreement on Privileges and Immunities of the Council of Europe
(1949)
• European Code of Social Security (1964)
• Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other
Offenses (1973)
• Declaration between Poland and Germany on the non-use of force (1934)
CLASSIFICATIONS OF INT’L AGREEMENTS
 bilateral ― multilateral
 open ― semiopen (semiclosed) ― closed
 concluded in a simple mode (signature)
― concluded in a complex mode (signature + ratification)
 embodied in a single document
― concluded by an exchange of notes
 written ― oral
 indefinite ― for a fixed period of time
 main ― additional
 between states ― between states and int’l organizations ―
between int’l organizations
FORM OF INT’L AGREEMENTS
“treaty” means an international agreement ... in written
form (VCLT).
 How about oral agreements?

 How many documents constitute a treaty?

 What are the component parts of an agreement?

 What is the authentic text?

 How/where to sign a treaty?

 What is the language of the treaty?

STRUCTURE
 Title
 Introduction:
o Indication of the parties
(intitulatio)
o Preamble (arenga)
o Comparison (comparitio)
o Narration (narratio)
 Operative part:
o substantive (material)
provisions
STRUCTURE (cont’d)
 Operative part:
o substantive (material)
provisions
o formal clauses
 Korroboration
(Corroboratio)
 Final clauses
(testimonium)
place, date, langugaes
 Signatures
EXCHANGE OF NOTES (1/2)
EXCHANGE OF NOTES (2/2)
LANGUAGE AND INTERPRETATION OF A TREATY

 Done in English in duplicate, at London, the 15th August, 1939. A Polish text
shall subsequently be agreed upon between the Contracting Parties and both
texts will then be authentic.
(Agreement of Mutual Assistance between the UK and Poland)
 The present Charter, of which the Chinese, French, Russian, English, and
Spanish texts are equally authentic ...
(UN Charter)
 Done ... in English and French, both texts being equally authentic, in a single
copy ...
(European Convention on Human Rights)
 This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish,
Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish,
Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak,
Slovenian, Spanish and Swedish languages, the texts in each of these
languages being equally authentic ...
(Treaty on EU)
LANGUAGE AND INTERPRETATION OF A TREATY

 Done in two copies, each copy in the Polish, Moldavian, and English
languages, all texts being equally authentic. In a case of any discrepancies in
interpretation, the English text shall prevail.
(Polish-Moldovan Protocol on readmission)
 Done at Beijing ... in three copies, in Chinese, Khmer and English, all these
texts being equally authentic. In case of any misinterpretation, the English
text will prevail.
(Chinese-Cambodian Agreement on Prosecutors Cooperation)
TREATY-MAKING (1): FULL POWERS
― a document emanating from the competent
authority of a State designating a person or
persons to represent the State for negotiating,
adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a
treaty, or for accomplishing any other act with
respect to a treaty
Art. 2 (1) VCLT
 In principle: full powers are required.
 Exemptions:
a) Full: heads of states, heads of governments, ministers of FA
b) Limited: heads of diplomatic missions

15
TREATY-MAKING (2): PREPARATION

1. Drawing up (drafting) the text:

→ diplomatic negotiations
2. Adoption of the text = the text is final
1. The adoption of the text of a treaty takes place by the consent of all the
States participating in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference
takes place by the vote of two thirds of the States present and voting, unless
by the same majority they shall decide to apply a different rule. (Art. 9 VCLT)
3. Authentication = the text is authentic
TREATY-MAKING (3): CONCLUSION
4. Expressing final consent to be bound by
the treaty
The consent of a State to be bound by a treaty may
be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance,
approval or accession, or by any other means if so
agreed. (Art. 11 VCLT)
5. Establishing a state’s consent
6. Establishment of the treaty
7. Entry into force
TREATY INTERPRETATION
 Schools of treaty interpretation:
o subjective interpretation – intent matters the most
o objective interpretation – the text itself
o teleological interpretation – look for its function

 General rule of treaty interpretation:

A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose.
(Art. 31 (1) VCLT)
 How about travaux préparatoire?
→ supplementary means of interpretation (to confirm, to
determine in case of troubles)
RESERVATIONS
― a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions
of the treaty in their application to that State
Art. 2 (1) VCLT
 Are reservations: harmful to the treaty? useful for
the parties?
ICJ ADVISORY OPINION ON RESERVATIONS
Advisory Opinion of the International
Court of Justice on reservations to the
Convention on the prevention and
punishment of the crime of genocide,
28 May 1951
a State which has made and maintained a reservation which has
been objected to by one or more of the parties to the Convention
but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.
ICJ ADVISORY OPINION ON RESERVATIONS
if a party to the Convention objects to a reservation which it
considers to be incompatible with the object and purpose of the
Convention, it can in fact consider that the reserving State is not a
party to the Convention; if, on the other hand, a party accept the
reservation as being compatible with the object and purpose of the
Convention, it can in fact consider that the reserving State is a party
to the Convention.
an objection to a reservation made by a signatory State which has
not yet ratified the Convention can have the legal effect indicated in
the reply to Question I only upon ratification. Until that moment it
merely serves as a notice to the other State of the eventual attitude of
the signatory State; an objection to a reservation made by a State
which is entitled to sign or accede but which has not yet done so is
without legal effect.
WHEN RESERVATION BECOMES EFFECTIVE?
Depends on whether the reservation is accepted or rejected
 In principle, the reservation becomes effective when at least
1 state accepts it,

Exceptions:
o A reservations expressly authorized by a treaty → does not require
acceptance
o Limited number of negotiating stated + specific object and purpose of
the treaty (e.g. alliance) → reservations to be accepted by all parties
o Reservation to a founding act of an international organization → to be
accepted by that organization
INT’L PRACTICE ON RESERVATIONS
 Any State may, when signing this Convention or when depositing its
instrument of ratification, make a reservation in respect of any particular
provision of the Convention to the extent that any law then in force in its
territory is not in conformity with the provision. Reservations of a general
character shall not be permitted under this article.
(European Convention on Human Rights)
 No reservation may be made under Article 57 of the Convention in respect of
the provisions of this Protocol.
(Protocol No. 6 to ECHR concerning the Abolition of the Death Penalty)
 At the time of signature, ratification or accession, any State may make
reservations to articles of the Convention other than to articles 1, 3, 4, 16 (1),
33, 36-46 inclusive.
(Geneva Convention relating to the Status of Refugees)
INT’L PRACTICE ON RESERVATIONS
 A reservation incompatible with the object and purpose of this Convention
shall not be permitted, nor shall a reservation the effect of which would
inhibit the operation of any of the bodies established by this Convention be
allowed. A reservation shall be considered incompatible or inhibitive if at
least two-thirds of the States Parties to this Convention object to it.
(International Convention on the Elimination
of All Forms of Racial Discrimination)
 No reservations or exceptions may be made to this Convention unless
expressly permitted by other articles of this Convention.
(United Nations Convention on the Law of the Sea)
 No reservation may be made in respect of the provisions of this Convention.
(European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment)
INVALIDATION OF A TREATY
Grounds for invalidation of
an international agreement

RELATIVE INVALIDITY ABSOLUTE INVALIDITY

(Art. 46-50 VCLT) (Art. 51-53 VCLT)
•can be invoked only by the injured state-party •can be invoked by any state-party
•agreement can be retrospectively validated •agreement cannot be retrospectively validated

grounds related to a violation defects of coercion of coercion of conflict with

of domestic law statement of will a representative a state by the a peremptory
of a state threat or use norm
of force (ius cogens)

violation of domestic exceeding full powers mistake (error) fraud corruption of

treaty-making- only if restrictions •essential deliberate a representative
competence were notified •related to the facts fraudulent of a State
only if violation was in advance •no fault (error cannot conduct
manifest and be invoked if the state
concerned a rule contributed to the error
of fundamental or could have noticed it
importance
INVALIDATION OF A TREATY
Violation of (domestic) treaty-making competence
A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that violation
was manifest and concerned a rule of its internal law of fundamental
importance.
(Art. 46 (1) VCLT)
Exceeding full powers
If the authority of a representative to express the consent of a State to be
bound by a particular treaty has been made subject to a specific restriction, his
omission to observe that restriction may not be invoked as invalidating the
consent expressed by him unless the restriction was notified to the other
negotiating States prior to his expressing such consent.
(Art. 47 VCLT)
INVALIDATION OF A TREATY
Mistake (error)
1. A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty if the error relates to a fact or
situation which was assumed by that State to exist at the time
when the treaty was concluded and formed an essential basis of
its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the circumstances
were such as to put that State on notice of a possible error.
(Art. 48 VCLT)
INVALIDATION OF A TREATY
Fraud
If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the
fraud as invalidating its consent to be bound by the treaty.
(Art. 49 VCLT)
Corruption
If the expression of a State’s consent to be bound by a treaty has
been procured through the corruption of its representative directly
or indirectly by another negotiating State, the State may invoke
such corruption as invalidating its consent to be bound by the
treaty.
(Art. 50 VCLT)
INVALIDATION OF A TREATY
Coercion of state representative
The expression of a State’s consent to be bound by a treaty which
has been procured by the coercion of its representative through
acts or threats directed against him shall be without any legal
effect.
(Art. 51 VCLT)
Coercion of a state
A treaty is void if its conclusion has been procured by the threat
or use of force in violation of the principles of international law
embodied in the Charter of the United Nations.
(Art. 52 VCLT)
INVALIDATION OF A TREATY
Violation of ius cogens
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law.
(Art. 53 VCLT)
TERMINATION OF A TREATY
Grounds for terminating a treaty:
 Objective reasons foreseen in the treaty
elapse of time, defeasance
 Consent of the parties
express or implied
 Objective reasons not foreseen in the treaty
impossible to apply; rebus sic stantibus
 Unilateral action
breach, denunciation (withdrawal)
OTHER SOURCES OF INT’L LAW
INTERNATIONAL CUSTOM
Customary rule: usus + opinio iuris
→ member states practice carried out because it is
considered to be a legal obligation
Example:
 Treaty provision: The Council shall consist of a representative
of each Member State at ministerial level … (Art. 16.2 TEU)
 Customary rule: member states may be represented at
Council’s meetings by state secretaries (1st deputy
ministers) or even members of COREPER
GENERAL PRINCIPLES OF LAW
‘… general principles of law recognized by civilized nations’
 Principles of International Law
good faith, pacta sunt servanda, solidarity, peaceful settlement of
disputes, no threat or use of force, non-intervention in internal affairs,
protection of human rights, equality and non-discrimination,

 Principles of Domestic Law (e.i. principles common

to all/most legal systems)
compensation, res iudicata, ne bis in idem, non-retroactivity, legal
certainty, proportionality, acquired rights

 Legal reasoning
Lex specialis, per analogiam, a minori ad maius, a maiori ad minus, etc.

34
LAW-MAKING RESOLUTIONS OF INT’L ORG
Acts

NON-BINDING BINDING

• resolutions,
recommendations
• positions in respect pro foro interno pro foro externo
of particular issues
• soft-law • administrative • resolutions of UN
• financial Security Council
• staff regulations • judicial decisions

• law-making
UNILATERAL ACTS OF STATES
If produce legal effects …
 Notification

 Recogniton

 Protest

 Waiver (renunciation)

 Promise
Dr Paweł Filipek

International Law (3)

Diplomatic & Consular Law
Diplomatic Law
SOURCES OF DIPLOMATIC LAW
International law:
• Vienna Convention of Diplomatic
Relations (1961)
• Other bi- and multilateral conventions on
diplomatic relations
• International customary law

Domestic law:
• E.g. (PL) Act of foreign service (2001)

Some contribution of international

courtesy (→ Diplomatic Protocol)
ESTABLISHMENT OF
A DIPLOMATIC MISSION
Ius legationis

Establishment of
diplomatic relations

Letters of credence of Jurij Nemes, ambassador of Czecho-Slovakia in

Request to receive Lithuania (Wikimedia Commons)

the head of mission

agrément

Appointment of the
head of mission
(credentials)

accreditation
Handing over credentials by Andrej Motyl, ambassador of Switzerland,
(photo Eliza Radzikowska-Białobrzewska, www.prezydent.pl)
DIPLOMATIC FUNCTIONS
 Representing
 Protecting
 Negotiating
 Informing
 Promoting
Polish Embassy in Malaysia (www.msz.gov.pl)

 Consular functions
MEMBERS OF THE MISSION
Members of a diplomatic mission

Head of the
staff
mission

Administrative
Diplomatic staff and technical Service staff
staff

Diplomatic agents
 HEADS OF MISSIONS
 First class:

Celestino Migliore, nuncio

ambassador, nuncio

(www.prezydent.pl)
 Second class:
envoy, internuncio

 Third class:
chargé d’affaire

Stanisław Patek, Polish envoy in USRR

chargé d’affaire chargé d’affaire

(NAC, 1-D-2006)
en pied (en titre) ad interim
DIPLOMATIC RANKS
o (ambassador ad personam)
o minister plenipotentiary
o minister
o counsellor-minister, counsellor-minister plenipotentiary
o defence (military/naval/air) attaché
o first counsellor
o second counsellor
o counsellor
o first secretary
o second secretary
o third secretary
o secretary
o attaché (press, cultural, legal, commercial, etc.)
CONSENT OF THE RECEIVING STATE
Principle: the sending state may freely appoint members
of its mission (no prior consent of the receiving state
required)
Express consent of the receiving state required:
• Head of the mission (agrément, accreditation)
• A member of diplomatic staff having nationality of the receiving
state

Optional requirement of an express consent:

• Military (air, naval) attaché
• A member of diplomatic staff having nationality of a third state
DIPLOMATIC CORPS
fr. corps diplomatique
Precedence:
• class
• seniority: time of taking up the functions New Year’s meeting of Corps with the Pope in 2015
(© Reuters, www.eeas.eu)

Dean of a diplomatic corps:

• Head of a diplomatic mission of highest
class and seniority, or
• Representative of the Holy See (nuncio)

New Year’s meeting with the President

CC-BY-SA 2.5 Sebastianm,
(www.prezydent.pl)
Wikimedia Commons
PERSONA NON GRATA
‘Persona non grata’ & ‘not acceptable person’?
Power of receiving state to require the removal of a
staff member by sending state
• at any time (even before arrival in the receiving state)
• no obligation to state the reasons

Consequences?
 Obligation of the sending State to bring that person’s
mission to and end (recall, terminate the functions)
SIZE OF DIPLOMATIC MISSION
 Mutual agreement
 No agreement → General rule of VCDR:
the size of a mission be kept within limits considered by it to be reasonable
and normal, having regard to circumstances and conditions in the receiving
State and to the needs of the particular mission.

British Embassy staff in Bosnia

and Herzegovina (www.gov.uk)
DIPLOMATIC PRIVILEGES AND IMMUNITIES
Diplomatic privileges and immunities

Ad rem
(mission, premisses)

right to use inviolability exemption free Ad personam

flag and from dues communication
(staff)
emblem and taxes

right to use freedom of personal jurisdictional exemption no search

flag and movement inviolability immunity from dues permitted
emblem and travel and taxes
CASE STUDY 1
Driving a car, a Second Secretary of the embassy of state A (sending
state), crossed the red light in a small town of state B (receiving state) in
which he was accredited as a diplomatic agent. After being stopped by the
police he presented his diplomatic ID card that confirmed he belonged to
the corps diplomatique in state B. The eye contact between police officers
and the diplomat made the intervening officers sure that he was completely
drunk and unable to continue driving. The officers attempted to take the
driving license and car keys away from him to prevent him from keeping on
driving. Then, the diplomat insulted them, called them ignorants and
invoked the diplomatic immunity he enjoyed. Confused police officers
backed off and the diplomat drove away.
Question: Was the police officers reaction appropriate?
The person of a diplomatic agent shall be inviolable. He shall not be liable to
any form of arrest or detention. The receiving State shall treat him with due
respect and shall take all appropriate steps to prevent any attack on his person,
freedom or dignity. (Art. 29 VCDR)
CASE STUDY 2
The police in state D (receiving state) conducted a large scale operation
against organized crime involved in trafficking in human beings. Two staff
members of the embassy of state C (sending state) in state D (receiving
state): a cultural attaché and an interpreter were identified as accomplices
involved in the scheme. The cultural attaché was a national of the state D
while the interpreter a national of state C. The police intended to arrest
them, interrogate and possibly put criminal charges.
Question: Can they be detained and arrested? Can they face criminal
charges and be brought before a criminal court?
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of
the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction (…) (Art. 31 (1) VCDR)
CASE STUDY 2
Members of the administrative and technical staff of the mission, together
with members of their families forming part of their respective households, shall,
if they are not nationals of or permanently resident in the receiving State, enjoy
the privileges and immunities specified in articles 29 to 35, except that the
immunity from civil and administrative jurisdiction of the receiving State
specified in paragraph 1 of article 31 shall not extend to acts performed outside
the course of their duties. (…) (Art. 37 (2) VCDR)
Except insofar as additional privileges and immunities may be granted by the
receiving State, a diplomatic agent who is a national of or permanently resident
in that State shall enjoy only immunity from jurisdiction, and inviolability, in
respect of official acts performed in the exercise of his functions. (Art. 38 (1)
VCDR)
Other members of the staff of the mission and private servants who are
nationals of or permanently resident in the receiving State shall enjoy privileges
and immunities only to the extent admitted by the receiving State. (…) (Art. 38
(2) VCDR)
Consular Law
SOURCES OF CONSULAR LAW
International Law
• CODIFICATION: Vienna Conven-
tion on Consular Relations (1963)
• Other bi- and multilateral
conventions on consular relations
• International customary law

Domestic law:
• E.g. (PL) Act on consular law (2015)
ESTABLISHMENT OF
A CONSULAR POST
Establishment of
diplomatic relations
Ius legationis
presumption

Establishment of
consular relations Letter of
commission

Consensus as to seat,
class and district of
exequatur
consular post

Appointment of the
head of consular post
(letter of commission)

exequatur
CONSULAR FUNCTIONS
 Quasi-representation
 Consular protection
 Promotion
 Informing
 Clerical tasks
(passports, visas, notary deeds, civil registration, authentication, etc.)
…
 Other tasks entrusted by the sending state
MEMBERS OF A CONSULAR POST
Members of a consular post

Head of consular
Consular staff
post

Consular officers Consular

Service staff
(sensu stricto) employees

Consular officers (sensu largo)

HEADS OF CONSULAR POSTS

 First class:
Consul general

 Second class:
Consul

 Third class:
Vice-consul Group of German honaorar consuls meeting in Chicago in 2013
(© www.germany.info)

 Forth class:
Consular agent
HONORARY CONSULS
Honorary & career consuls
• No renumeration (honorary job)
• In principle, nationals of the
receiving state
• As a rule, professional /
commercial activity authorized
• Exercise less powers
• Entitled to a more limited scope
of privileges and immunities
CONSULAR CORPS
fr. corps consulaire
Precedence:
1. Heads of consular posts > non-heads
2. Heads > acting heads
3. Class
4. Career > honorary consuls
5. Seniority

Dean of consular corps:

• Career head of consular post of highest
class and seniority

Meeting of Krakow authorities with Consular Corps in 2010

© UM Krakowa, krakow.pl
CONSULAR PRIVILEGES AND IMMUNITIES
Consular privileges and immunities

Ad rem
(mission, premisses)

right to use inviolability exemption free Ad personam

flag and from dues communication
(staff)
emblem and taxes

right to use freedom of personal jurisdictional exemption no search

flag and movement inviolability immunity from dues permitted
emblem and travel and taxes
CASE STUDY 1
A consul of state A (sending state) has been accused in
state B (receiving state) of stealing a bicycle. A month later it
was established beyond any doubts that he indeed was the
perpetrator and the police wanted to arrest him. He invoked his
personal inviolability and immunity from state B jurisdiction. In
result, the police have not arrested him, but the criminal
prosecutions has been continued and the consul had to face
trial. The court of state B found him guilty and sentenced to 3
months imprisonment. The sentenced consul protested still
arguing that the immunity protects him.
Was it possible to arrest the consul, to initiate criminal
proceedings against him, and then to deprive him of liberty?
CASE STUDY 2
In state X, a chargé d'affaires and a consul of state Y as
well as a vice-consul of state Z witnessed an act of armed
robbery at a petrol station. During criminal trial the court
summoned them to appear before the judge and testify as
witnesses. Initially, all three refused to appear before the court.
When summoning them again the court informed them that
they will be fined in another case of absence. The chargé
d'affaires and the vice-consul again refused to testify, while
the consul sent a comprehensive written explanation of what
he saw during the event.
Do diplomatic and consular officers have a duty to testify as
witnesses?
CONSULAR PRIVILEGES AND IMMUNITIES
Basic differences: consular – diplomatic status:
 Inviolability of consular post:
• Assumed consent to enter consular post in case of fire or other disaster
requiring imminent protective action

 Personal inviolability of consular officers

• Liable to arrest or detention in the case of a grave crime and pursuant to a
judicial decision
• May be imprisoned in execution of a final judicial decision

 Jurisdictional immunity
• Functional: in respect of acts performed in the exercise of consular functions
• May be called to testify as witnesses
Dr Paweł Filipek

International Law (4)

Population in International Law
POPULATION
Population of a state

Persons subjected to territorial jurisdiction of the state

= persons who are in the territory of the state and, in principle,
also persons on aircrafts and ships registered in the state

citizens foreigners

Citizens of foreign countries, including stateless persons

those who are in the country seeking
international protection, such as refugees
Citizenship
CITIZENSHIP

What is citizenship (nationality)?

 durable legal bond between an individual (a natural
person, the citizen) and the state, on the basis of
which the citizen has certain rights and obligations,
coresponding to certain duties and expectations of
the state
 How about EU citizenship?

… EU is not a state
INT’ LAW ON THE ISSUE OF NATIONALITY
 Permanent Court of International Justice, Advisory Opinion,
1923, Nationality Decrees issued in Tunis and Morocco
[38] From one point of view, it might well be said that the jurisdiction of a
State is exclusive within the limits fixed by international law ... [39] The words
"solely within the domestic jurisdiction" seem rather to contemplate certain
matters which, though they may very closely concern the interests of more than
one State, are not, in principle, regulated by international law. As regards such
matters, each State is sole judge.
[40] ... in the present state of international law, questions of nationality are,
in the opinion of the Court, in principle within this reserved domain.
INT’ LAW ON THE ISSUE OF NATIONALITY
Status of human beings as state’s reserved domain?
 Ius cogens rules:
prohibition of apartheid, discrimination, war crimes
 Human rights protection
 EU citizenship
 International cooperation based on mutual consent
fighting crime, extradtion, mutal assistance
ACQUISITION AND LOSS OF CITIZENSHIP
Acquisition ipso iure („by the law itself”)
 birthright citizenship
o right of blood (ius sanguinis)
o right of soil (ius soli)
 person found within state’s territory
 adoption

Acquisition by an individual act of state:

 naturalization: application + conditions
 reintegration

Loss of citizenship:
 ?
CHEN CASE, ECJ, C-200/02
A Chinese citizen, Mrs Chen arrived in the territory of Northern
Ireland in the late stage of pregnancy. Shortly, she gave birth to her
daughter, Catherine Zhy Chen. In accordance with 1956 Irish
Nationality and Citizenship Act, Ireland allowed for every person
born on the island of Ireland to obtain Irish citizenship. Thus,
Catherie Zhy Chen acquired Irish citizenship automatically. Later,
mother and daughter moved to Wales and applied for a residence
permit relying on Irish citizenship of the daughter. United Kingdom
denied the application considering that the citizenship was acquired
in abuse of Irish law.
 Can UK question granting citizenship by another EU Member State?
 Can UK question granting citizenship by another EU Member State in
the case of the person in question enjoying double citizenship?

9
MULTIPLE CITIZENSHIP, NOTTEBOHM CASE
Friedrich Nottebohm, a German national, in October 1939 applied for naturalization in
Liechtenstein. In 1905 he had left Germany and went to Guatemala, which he made centre of
his business activities. He sometimes visited Germany on business and other countries for
holidays. His brother lived in Liechtenstein since 1931.
In March 1939 he left Guatemala at approximately end of March. He seems to have gone
to Hamburg and to have paid a few brief visits to Liechtenstein, where he was at the beginning
of October 1939. On 9 October 1939 he applied for naturalization in Liechtenstein. He had
been naturalized 4 days later. He then obtained a Liechtenstein passport and had it visa-ed by
the Consul General of Guatemala in Zurich on 1 December 1939, and returned to Guatemala
at the beginning of 1940, where he resumed his former business activities.
When he tried to return to Guatemala once again in 1943 he was refused entry as an
enemy alien since the Guatemalan authorities did not recognise his naturalization and
regarded him as still German. He was later extradited to the US where he was held at an
internment camp until the end of the war. All his possessions in Guatemala were confiscated.
Liechtenstein has claimed before the International Court of Justice restitution and
compensation on the ground that the Government of Guatemala had acted towards
Nottebohm in a manner contrary to international law.
 Whose citizenship did Mr. Nottebohm enjoy?
MULTIPLE CITIZENSHIP, NOTTEBOHM CASE
International Court of Justice, judgement of 5 April 1955
According to the practice of States, to arbitral and judicial decisions and
to the opinions of writers, nationality is a legal bond having as its basis a
social fact of attachment, a genuine connection of existence, interests and
sentiments, together with the existence of reciprocal rights and duties. It
may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other
State. (...)
a State cannot claim that the ruIes it has thus laid down are entitled
to recognition by another State unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the
individual's genuine connection with the State which assumes the defence
of its citizens by means of protection as against other States.
EU & NATIONAL CITIZENSHIP
Union citizenship:
 Does not replace national
citizenship
 Is dependant on MS citizenship:
acquisition and loss are
automatically linked to acquisition
and loss of national citizenship
 Is additional: supplements MS
citizenship, provides additional
rights
 Rights of Union citizens

Electoral
Right to
Right to move and rights
diplomatic Right to Rights related to EU Citizens
reside freely in the (to stand as a
and consular petition administration initiative
territory of MS candidate; to
protection
vote)

European municipal European Right to good Access to

Parliament elections Parliament administration documents

European Right to address

Ombudsman EU institutions
Asylum (refugee status)
CRUZ VARAS CASE
Cruz Varas et al. v. Sweden (ECtHR, 1991)
Applicants are Chilean nationals seeking asylum in Sweden. Mr. CV
claimed that he had been active in the resistance to the Pinochet
government and had been arrested for his activities. Other than occasional
arrests he was left alone by the government, and he based his asylum
application on the fact of his poor economic situation and that he had been
forced to sell his house because he couldn’t afford the mortgage. The
asylum application was denied; he appealed but didn’t submit new grounds
and the appeal was rejected. He then stated that he couldn’t be returned to
Chile because of his activities in Sweden against Pinochet; this was denied
and so was his appeal. Even after changing his story to include several
instances of torture, he was finally repatriated to Chile and his wife and
child went into hiding in Sweden.
 Who is a refugee?

 Does Mr Varas and his family meet the criteria?

ASYLUM
Who is a refugee?
Any person who owing to a well-founded fear of
being persecuted for reasons of race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country
No Contracting State shall expel or return © Łukasz Trzciński

(“refouler”) a refugee in any manner whatsoever to the

frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political
opinion.
1951 Geneva Convention relating to the Status of Refugees
REFUGEES & IMMIGRANTS
A refugee: An immigrant:
 flees  leaves voluntarily
 for fear of  for other reasons:
persecution economic, study, etc.
 cannot return to his  may return to his
country of origin country of origin
without risking life or because he is not in
health danger
Extradition
EXTRADITION
Basic rules:
 Double criminality

 Specialty

 No obligation to surrender own nationals

 Non-refoulement

Extradition and European Arrest Warant?

Foreigners
1985 SCHENGEN AGREEMENT
… from 15 June 1985 the
police and customs authorities
shall as a general rule carry out
simple visual surveillance of
private vehicles crossing the
common border at reduced
speed, without requiring such
vehicles to stop.
(Art. 2)
Schengen
22 EU Members
+
Island
Liechtenstein
Norway
Switzerland
ENTRY CONDITIONS
 a valid travel document
 a valid visa
 justified purpose
 sufficient means of subsistence
 not considered to be a threat
Human Rights
WHAT ARE HUMAN RIGHTS
Human rights?
to protect the individual against arbitrary interference of
public authorities
 Material and formal standards:
o scope of protection (rights and freedoms)
o mechanisms of protection
 Multilevel protection:
• international universal & regional,
• supranational,
• domestic
GENERATIONS OF HUMAN RIGHTS
Civil & Political Rights Economic, Social & Cultural
o Right to life o Right to property
o Prohibition of torture o Right to work
o Freedom of security and liberty o Health and safety at work
o Right to a fair trial o Right to social security
o Protection of privacy o Protection of health
o Freedom of conscious o Right to education
o Freedom of speech o Right to culture
o Right to assembly
o Right to association
GENERATIONS OF HUMAN RIGHTS
Civil and Political Rights Economic, Social and Cultural Rights
Each State Party to the Each State Party to the present Covenant
present Covenant undertakes undertakes to take steps, individually and
to respect and to ensure to all through international assistance and co-
individuals within its territory operation, especially economic and technical,
and subject to its jurisdiction the to the maximum of its available
rights recognized in the present resources, with a view to achieving
Covenant progressively the full realization of the
Art. 2 (1) Covenant on Civil and rights recognized in the present Covenant by
Political Rights all appropriate means, including particularly
the adoption of legislative measures.
Art. 2 (1) Covenant on Economic, Social and
Cultural Rights
GENERATIONS OF HUMAN RIGHTS
Civil and Political Rights Economic, Social and
Article 6 Cultural Rights
1. Every human being has the inherent right Article 9
to life. This right shall be protected by law. No The States Parties to the
one shall be arbitrarily deprived of his life. present Covenant recognize the
Article 18 right of everyone to social
1. Everyone shall have the right to freedom security, including social
of thought, conscience and religion. (…) insurance.
Article 19 Article 13
1. Everyone shall have the right to hold 1. The States Parties to the
opinions without interference. present Covenant recognize the
right of everyone to education.
2. Everyone shall have the right to freedom (…)
of expression;
Covenant on Economic, Social
Covenant on Civil and Political Rights and Cultural Rights
HUMAN RIGHTS IN UN SYSTEM

 UN Charter (1945)
 Universal Declaration of Human Rights (1948)
All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.
 International Covenants (1966)
 on Economic, Social and Cultural Rights
reports
 on Civil and Political Rights
reports, interstate cases
Optional Protocol: individual complaints
HUMAN RIGHTS IN EUROPE
 Council of Europe
o European Convention on Human Rights
o European Social Charter
o European Convention for the Prevention of Torture

 European Union
o Charter of Fundamental Rights

 Organization for Security and

Cooperation in Europe
o Helsinki Act
o Human rights dimension
 HUMAN RIGHTS SYSTEMS
Human Rights Protection

in domestic laws of
in Public International Law mutual relationships individual countries
(Constitutions, bills, etc.)

universal system regional

mutual relationships
(United Nations) systems

Europe America Africa

general sectorial
protection protection
(groups of people) Organization of African
Council of European OSCE American States Union
Europe Union
- Charter of the - Convention on the
United Nations Elimination of all Forms - European Convention so called OSCE
(supranational - OAS Charter (1948) - African Charter
(1945) of Racial Discrimination "human
on Human Rights (1950) system) - American Declaration of on Human and
- Universal (1959) - European Social dimension"
- Treaty on EU the Rights and Duties of Peoples Rights
Declaration of - Convention on the
Charter (1961, 1996) - Charter of Man (1948) (1981)
Human Rights Elimination of all Forms - European Convention Fundamental - American Convention
(1948) of Discrimination for the Prevention of Rights (2000) on Human Rights (Pact of
- International Against Women (1979) Torture (1987) - secondary law San José, 1969)
Covenants - Convention Against - Convention on Human - ECJ case law - Additional Protocol to
(1966) Torture (1984) Rights and Biomedicine ACHR in the area of
- Convention on the
(1997) Economic, Social, and
Rights of the Child
Cultural Rights (Protocol
(1989)
of San Salvador, 1988)
 INDIVIDUAL COMPLAINT
application lodged by an individual, group of individuals

ECHR INDIVIDUAL COMPLAINT

or a non-governmental organization claiming to be a
victim of a violation of the ECHR or a Protocol to the
Convention

European Court of Human Rights

admissibility check

application inadmissible application admissible

decision taken by a single judge, 3-judge decision taken by 3-judge committee,
committee, a chamber or the Grand a chamber or the Grand Chamber
Chamber

end of proceeding, no appeal possible possibility of a friendly settlement

in case of a friendly settlement – Court's

decision containing the solution reached
(case is stricken out of the Court's list)

consideration of the merits of the

complaint by a 3-judge committee,
chamber or the Grand Chamber

judgment

in some situations (Art. 43 ECHR) after the

case was decided by a chamber, there is a
possibility to request that it is referred to the
Grand Chamber

execution of court judgments supervised

by the Committee of Ministers of
the Council of Europe
Dr Paweł Filipek

International Law
International organizations
ROLE OF INTERNATIONAL ORGANIZATIONS
 secondary subjects of int’l law
 organize cooperation
 encompass entire world
 are active in a variety of fields:
o political: UN, EU, CoE, …
o economic: WTO, EU, NAFTA, …
o social: ILO, …
o cultural life: UNESCO, …

 How is the changing world (a global village)

affecting states and IOs?
WORLD AS A ‘GLOBAL VILLAGE’
How is the changing world (a global
village) affecting states and IOs?
Have states been loosing
sovereignty? or is the world still
organized in a state centric way?
Sovereignty ↔ interdependence
Case of national security. A paradox?
Is sovereignty a moving concept?
THE DEFINITION OF INT’L ORGANIZATION
 form of international cooperation
 founded by states or/and international organizations
subjects of international law
 on the basis of an international agreement
treaty, conference of states, decision of an IO
 a new legal person is created
IO ≠ treaty bodies
 with specific powers
separate from those of MS
 and own bodies
to represent the organization

Steve Cadman, CC-BY 2.0

BASIC CLASSIFICATIONS OF IO

non-
governmental
governmental

universal (global) regional

universal
specialized
(general)

open (semi-open) closed

traditional
supranational
(classic)
Membership of Int’l Org’s
PARTICIPATION IN INT’L ORGANIZATIONS
1. Membership
• Full members
• Associate / afiliate members
• Partial members
2. Association
3. Observer status
FULL MEMBERS OF IO
Categories of members:
 States – most important members of IO
membership of micro-states (mini-states)?
 Territories which are not independent states
Belarusian SSR and Ukrainian SSR in UN
status of Palestine?
 International organizations – more often observer
status than membership
Joint Vienna Institute
BECOMING A MEMBER
 Participation in the creation of IO – original
members
The original Members of the United Nations
shall be the states which, having participated
in the United Nations Conference on
International Organization at San Francisco,
or having previously signed the Declaration by
United Nations of 1 January 1942, sign the
present Charter and ratify it in accordance
with Article 110. (Art. 3, UN Charter)
 Subsequent admission – additional, other members
ACCESSION CONDITIONS – INT’L PRACTICE
 Accession by unilateral notification
International Whaling Commission
 Admission by IO decision
e.g. ILO, WHO, FAO, ESA
 States belonging to a particular group
e.g. regional organizations (CoE, EU, OAS, AU), OPEC, etc.
 Some general conditions
United Nations, Council of Europe, European Union
 Certain specific conditions
European Union, World Trade Organization
Bodies of Int’l Org’s & Decision-Making
CLASSIFICATIONS OF IOS BODIES

primary (main, statutory) subsidiary (additional)

decision-making consultative implementing

governmental other

plenary
executive administrative parliamentary judicial
(general)
FUNCTIONS OF IOS BODIES
 Standard-setting (law-making):
binding & non-binding instruments, case-law
 Control:
reporting systems, visits, quasi-judicial or judicial procedures
 Administration
 Settlement of disputes:
diplomatic (non judicial) & judicial
BODIES

Type UN EU CoE
Committee of
plenary General Assembly European Council
Ministers
Security Council Council, Parliament, Committee of
decision-making
ECOSOC Commission Ministers

administrative Secretary General Commission Secretary General

European Parliamentary
parliamentary ̶
Parliament Assembly
Court of Justice
judicial ICJ ̶ (ECHR?)
of EU
LANGUAGES
 Lingua franca? (Latin → French → English)
 Official languages and working languages
 Examples of IO:
o UN: Chinese, English, French, Russian, Spanish
o CoE: English, French
o EU: all MS official languages (24)
LAW-MAKING BY INT’L ORGANIZATIONS
2 basic ways of law-making in IO:
 Adoption of treaties (int’l agreements)
UN conventions, CoE conventions, ILO labour conventions, etc.
more use of experts (e.g. UN International Law Commission)
involving all members in drafting
traditional procedure of signing and ratifying

 Adoption of unilateral acts of IO:

resolutions, decisions, etc.
binding or non-binding?
LAW-MAKING RESOLUTIONS OF INT’L ORG
Acts

NON-BINDING BINDING

• resolutions,
recommendations
• positions in respect pro foro interno pro foro externo
of particular issues
• soft-law • administrative • resolutions of UN
• financial Security Council
• staff regulations • judicial decisions

• law-making
DECISION-TAKING – How to adopt an act?
Taking a decision

by CONSENSUS by VOTING

majority voting unanimity

simple absolute qualified

majority majority majority

complex formulae
COOPERATION IN DECISION-TAKING
An act of an International Organization can be
adopted
 By a single body (acting alone)

 In cooperation (two bodies, or more)

o on recommendation
o on initiative
o in consultation
o with consent
o jointly
VOTING IN UNITED NATIONS
General Assembly:
 simple majority
 2/3 majority of those ‘present and voting’ –
important questions (Art. 18 UN Charter):
• membership issues (admission, suspension, exclusion)
• elections (to Security Council, ECOSOC)
• recommendation on maintenance of peace and security
• UN budget
 2/3 majority of all MS
• amendments to UN Charter
• convocation of a General Conference for Revision
 absolute majority– election of judges to ICJ
VOTING IN UNITED NATIONS
Security Council:
 9/15 – procedural matters
 9/15 + ‘veto’ system:
Decisions of the Security Council on all other matters shall be made by an
affirmative vote of nine members including the concurring votes of the
permanent members; provided that, in decisions under Chapter VI, and under
paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
(Art. 27.3 UN Charter)
 absolute majority – election of judges to ICJ
ECOSOC, ICJ:
 simple majority
UN System
ATLANTIC CHARTER, 14 AUGUST 1941
Principles:
 no territorial gains
 territorial changes only with the
consent of the people
 right to self-determination
 free access to trade
 improvement of labour standards,
economic and social welfare
 world free from fear and want
 freedom of the seas
 disarmament of aggressor nations
DECLARATION BY THE UNITED NATIONS
Washington, 1 January 1942
Having subscribed to a common program of purposes and
principles embodied in (…) the Atlantic Charter.
Declare:
(1) Each Government pledges itself to employ its full resources,
military or economic, against those members of the Tripartite
Pact and its adherents with which such government is at war.
(2) Each Government pledges itself to cooperate with the
Governments signatory hereto and not to make a separate
armistice or peace with the enemies.
DUMBARTON OAKS AND SAN FRANCISCO
Dumbarton Oaks Conference:
27 August – 28 September 1944
USA, UK, Soviet Union
29 September – 7 October 1944
USA, UK, China

San Francisco Conference

25 April – 26 June 1945
50 alied states
UNITED NATIONS
Charter + ICJ Statute
• Signed: 26 June 1945
• Entry into force: 24 October 1945
• 193 MS, most recent: South Sudan, 2011
• Original (51) and other members
• 111 Articles, 5 authentic languages
Is the Charter a constitution of International community?
In the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their
obligations under any other international agreement, their
obligations under the present Charter shall prevail. (Art. 103)
PRINCIPLES OF THE UNITED NATIONS
1. The Organization is based on the principle of the sovereign
equality of all its Members.
2. All Members, in order to ensure to all of them the rights and
benefits resulting from membership, shall fulfill in good faith the
obligations assumed by them in accordance with the present
Charter.
3. All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security,
and justice, are not endangered.
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
PRINCIPLES OF THE UNITED NATIONS
5. All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall
refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members
of the United Nations act in accordance with these Principles so far
as may be necessary for the maintenance of international peace and
security.
7. Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members
to submit such matters to settlement under the present Charter; but
this principle shall not prejudice the application of enforcement
measures under Chapter VII.
PRINCIPAL UN BODIES
Art. 7.1 UN Charter:
 General Assembly

 Security Council

 Economic and Social Council

(ECOSOC)
 International Court of Justice

 Secretariat (Secretary General)

 Trusteeship Council
GENERAL ASSEMBLY
Patrick Gruban, CC-BY-SA 2.0
Powers:
deliberative – discusses any matters falling within the scope of the
UN Charter and provide recommendations on these matters, incl.
matters concerning the maintenance of international peace and security
UN membership – decides on admission, expulsion or suspension
of a member
electoral – elects non-permanent SC members, members
of ECOSOC, judges of ICJ, appoints UN Secretary General
budgetary – approves UN budget
approves agreements with UN specialized agencies
SECURITY COUNCIL

Powers: Pete Souza, PD

international peace and security – primary

responsibility! monitors international relations, examines
conflicts, frecomends mitigation measures,
decision-maker – decides on military and non-military
sanctions, peace-keeping operations
UN membership – recommends admission, expulsion or
suspension of a member
electoral – recommends SG, elects ICJ judges
ECONOMIC AND SOCIAL COUNCIL

E. Debebe, UN
54 members,
3 years

Powers:
initiates studies on economic and social issues, makes
recommendations
prepares draft conventions (e.g. 1966 ICCPR)
convenes international conferences
coordinates activities of UN specialized agencies,
concludes agreements with the agencies
Dispute Settlement in UN
DISPUTE SETTLEMENT IN UN
All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.
Art. 2 (3) UN Charter
The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own
choice.
Art. 33 (1) UN Charter
UN CHARTER
but …
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs
against a Member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of
self-defense shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore
international peace and security.
Art. 51 UN Charter
LEGAL & POLITICAL DISPUTES
The states parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
breach of an international obligation.
Art. 36 (2) ICJ Statute
DISPUTE SOLVING BY PEACEFUL MEANS
Peaceful means

diplomatic judicial

negotations good offices mediation arbitration judiciary

fact-finding conciliation
CONCILIATION – ARBITRATION – JUDICIARY

conciliation arbitration judiciary

Choice of composition of the body + + ̶

Influence on procedure + + ̶
Formalism ̶ +/ ̶ +
Bound by international law +/ ̶ + +
Binding decision ̶ + +
INTERNATIONAL COURT OF JUSTICE
15 judges
elected by GA and SC
for 9 years

ICJ, PD

Powers - jurisdiction:
Consideration of interstate disputes
Giving advisory opinions
ICJ PROCEEDINGS
Application / action

written stage:
exchange of written statements
and observations

oral stage:
public hearing

Judgment
UN FAMILY
UN SPECIALIZED AGENCIES
 UN coordinates activities of specialized agencies
cooperation agreements
annual reports
UN System Chief Executives Board for Coordination (CEB)

 Participation in meetings of organizations bodies

 Exchange of information and documents
 Right of agencies to request advisory opinions from
ICJ on ‘legal questions arising within the scope of their
activities’
1996 (ICJ Advisory Opinion), Legality of the Use of Nuclear Weapons in
Armed Conflicts
UN AND SPECIALIZED AGENCIES
‘Great four’:
ILO – International Labour Organization,
1919, Geneva
FAO – Food and Agriculture Organization,
1945, Rome
WHO – World Health Organization,
1948, Geneva
UNESCO – United Nations Educational,
Scientific and Cultural Organization,
1946, Paris
Dr Paweł Filipek

International Law
European Union (EU) and its internal market
EU in general
INTEGRATION AS AN ECONOMIC PROCESS

4.
1. 2. 3. 5.
Economic and
Free trade Customs Common Complete
monetary
area union market integration
union

Based on: B. Belassa, The Theory of Economic Integration, 1961

INTEGRATION AS A POLITICAL PROCESS

private parties / citizens

National institutions / authorities

European institutions

policies
Institutional architecture
EU BODIES
Institutions Subsidiary bodies
European Council
Council
European
European Parliament Ombudsm EU agencies
an
European Commission • European Agency for Safety
and Health at Work
Court of Justice of EU
• European Environment Agency
Court of Auditors • European Food Safety
Authority
European Central Bank • EU Agency for Fundamental
Rights
• European Asylum Support
Advisory bodies Office
• Europol
Economic and Social Committee • Eurojust
Committee of the Regions • Frontex, etc.
6
INTERGOVERNMENTAL STRUCTURE OF EU
European
Council

Presidency
Council
Secretariat
General

Coreper

committees

working parties, groups, etc.

FUNCTIONS OF EUROPEAN COUNCIL
strategic: ‘provide the Union with the necessary
impetus for its development and shall define the
general political directions and priorities’
creation:
▪ appointing (President, High Representative, Commission)
▪ deciding on Council’s configurations
▪ deciding on European Parliament’s composition
mediation – quest for consensus
correction (constitutional) – simplified change of
treaties
FUNCTIONS OF COUNCIL

law-making – enacting EU secondary law

(regulations, directives, decisions),
concluding international agreements
coordination – of MS actions
executive – delegation of powers to Commission
creation – appointment of members of other EU
bodies (Commission, Court of Auditors, European Economic
and Social Committee, Committee of the Regions)
control
FUNCTIONS OF EP
law-making – enacting EU secondary law
advisory – general power to issue opinions
political control – esp. over European Commission
creation – part in appointing other EU bodies (Commission,
Ombudsman)

Source: European Union

FUNCTIONS OF COMMISSION
participation in EU law-making
legislative initiative; own legislative powers (in some narrow areas);
recommendations and opinions
executive
delegation of powers – executive rules; delegated and implementing acts;
daily work of EU, implementation of budget
control
member states; other EU institutions; private persons
representation
inside EU – within MS territories; in external relations, but minding the
powers of EU High Representative for FA and SP (CFSP)
reporting
Legal system
SOURCES OF EU LAW
Primary law

hierarchy
written law (enacted law) unwritten law

hierarchy
founding amending accession Charter of Funda- general principles customary
treaties treaties treaties mental Rights of EU law law

EU international
agreements

Secondary law hierarchy

regulations directives decisions recommen- opinions instruments of unnamed acts

dations CFSP (sui generis acts)
REGULATIONS
A regulation shall have general
application. It shall be binding in its
entirety and directly applicable in all
Member States.
Art. 288 TFEU

▪ normative (legislative) act (general and abstract)

▪ binding in its entirety (in all its parts)
▪ applied directly – does not require transformation
▪ addressed to MS and private persons (natural and legal)
▪ published in ‘Official Journal of the EU’
▪ instrument of unification of law
DIRECTIVES
A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is
addressed, but shall leave to the national authorities the
choice of form and methods.
Art. 288 TFEU
▪ normative (legislative) act (general and abstract)
▪ binding as to its objectives (results)
▪ requires transformation (implementation, transposition)
▪ addressed to MS
▪ published in ‘Official Journal of the EU’
▪ instrument of harmonization of law
IMPLEMENTATION OF DIRECTIVES
‘choice of form and methods’, but implementation must
be timely and proper; CJEU: MS to take all necessary
measures to make directive fully effective.

1. Choice of appropriate measure: in principle, it should

be a legislative act;
2. Transposition = actual compliance;
3. Legal remedies, effective sanctions.
EU LAW AND NATIONAL LAWS
The principles determining mutual relationships:
✓ Principle of loyal cooperation (solidarity)
✓ Autonomy of EU law
and procedural autonomy of national laws
✓ Primacy of EU law
✓ Direct effect of EU law
✓ Indirect effect of EU law
✓ MS liability in tort for non-implementing EU law
AUTONOMY OF EU LAW AND NATIONAL LAWS

Procedural autonomy of
Autonomy of EU law national laws (MS)

• EU acts do not require approval by • EU law is applied, in general, in

MS accordance with procedures and by
• Cannot be repealed by MS bodies determined by national
legal systems
• EU law has own rules determining
sources of secondary law and law- Some exceptions
making procedures
• Own bodies interpreting EU law and
controlling legality of EU acts
PRIMACY OF EU LAW
 C-6/64 Costa v. ENEL
By contrast with ordinary international treaties, the EEC Treaty has
created its own legal system which, on the entry into force of the Treaty,
became an integral part of the legal systems of the Member States and which
their courts are bound to apply. (…)
The integration into the laws of each Member State of provisions which
derive from the Community, and more generally the terms and the spirit of
the Treaty, make it impossible for the States, as a corollary, to accord
precedence to a unilateral and subsequent measure over a legal system
accepted by them on a basis of reciprocity. Such a measure cannot therefore
be inconsistent with that legal system. The executive force of Community law
cannot vary from one State to another in deference to subsequent domestic
laws, …
the law stemming from the Treaty, an independent source of law, could
not, because of its special and original nature, be overridden by
domestic legal provisions, …
PRIMACY OF EU LAW
Method of operation:
in case of a conflict between EU and domestic law:
 obligation not to apply domestic law, instead to apply EU law
(obligation imposed on all MS bodies, including courts and
local government)
 inability to verify the validity of EU law by the MS bodies (can be
done by EU bodies only = Court of Justice)
 no automatic nullity of domestic law (instead it becomes
inapplicable), but MS obligation to repeal or amend it
→ Precedence of application and not validity
DIRECT EFFECT: TREATIES
C-26/62 Van Gend & Loos:
Art. 12 TEEC (original): Member States shall refrain from
introducing, as between themselves, any new customs duties on
importation or exportation or charges with equivalent effect and
from increasing such duties or charges as they apply in their
commercial relations with each other.
Is art. 12 directly effective? may private persons claim individual
rights on the basis of that provision enforceable by domestic
courts?
Article 12 must be interpreted as producing direct effects and
creating individual rights which national courts must protect.
DIRECT EFFECT: TREATIES
Conditions for a directly effective EEC Treaty provision
(C-26/62 Van Gend & Loos):
▪ clear, precise, not raising doubts
▪ unconditional – not leaving space to MS discretion
▪ conferring obligation on MS to act or not to act (positive or
negative obligation)
▪ but not requiring to enact domestic legislative measures
(‘direct’)
In one sentence: provision is able to be applied by MS bodies in
the particular case
DIRECT EFFECT: TREATIES
 Who decides on the direct effect of a provision?
EU court (CJEU)
 Since when does the provision have a direct effect?
In general, since its inception (entry into force)
 Is there a direct effect in horizontal relations, too?
C-43/75 Defrenne v. Sabena:
In fact, since Article 119 is mandatory in nature, the
prohibition on discrimination between men and women applies
not only to the action of public authorities, but also extends
to all agreements which are intended to regulate paid labour
collectively, as well as to contracts between individuals.
INDIRECT EFFECT
Indirect effect: doctrine of consistent interpretation,
obligation to interpret national law in line with EU law
C-14/83 Sabine von Colson i Elisabeth Kamann
It is for the national court to interpret and apply the
legislation adopted for the implementation of the
directive in conformity with the requirements of
Union law, in so far as it is given discretion to do so
under national law
MS LIABILITY FOR VIOLATION OF EU LAW
C-6/90, 9/90 Andrea Francovich & Daniela Bonifaci
The full effectiveness of Community rules would be impaired
and the protection of the rights which they grant would be
weakened if individuals were unable to obtain reparation when
their rights are infringed by a breach of Community law for which
a Member State can be held responsible. (…)
It follows that the principle whereby a State must be liable for
loss and damage caused to individuals by breaches of
Community law for which the State can be held responsible is
inherent in the system of the Treaty.
MS LIABILITY FOR VIOLATION OF EU LAW
Conditions of MS liability:
first, that the result prescribed by the directive should entail the
grant of rights to individuals; secondly, that it should be possible
to identify the content of those rights on the basis of the
provisions of the directive; and thirdly, that there should be a
causal link between the breach of the State' s obligation and the
loss and damage suffered by the injured parties.
• rights are conferred
• EU law violated
• damage occurred
• causal link exists
Internal Market
WHAT IS THE ECONOMIC NATURE OF EU?
 Where is the EU today?

✓ ✓ ✓ ✓
1.
free
2. 3.
4.
economic &
5.
customs common complete
trade monetary
union market integration
area union
EU INTERNAL MARKET
The internal market shall comprise an area without internal
frontiers in which the free movement of goods, persons, services
and capital is ensured in accordance with the provisions of the
Treaties.
Freedoms of EU Art. 26 TFEE
internal market

Free movement of Free movement of Free movement of Free movement of

goods persons services capital and
payments

workes Freedom of
establisment
FREE MOVEMENT OF GOODS
Elements of free movement of goods:
 Prohibition of customs duties and charges having equivalent
effect
 Prohibition of quantitative restrictions and measures having
equivalent effect
 Fair competition policy (prohibition of anti-competitive
behaviour, prohibition of abuse of dominant position)
 Prohibition of tax discrimination
 Common Customs Tariff
 Common commercial policy
SCOPE OF THE FREEDOM
„goods” – objects of material value capable of being traded
„union goods”:
o originates in an EU Member State
o originates in a third country but is admitted for free circulation in one of
the MS (formalities + duties, fees)
Exceptions:
• weapons, ammunition, explosives
• nuclear materials
• agricultural products - if separate rules are laid down
• radio and television broadcasting (→ free movement of services)
• money (→ free movement of capital)
CUSTOMS UNION
Common Customs Tariffs (Regulation 2658/87)
 Nomenclature of goods
 Customs rates [%]
o autonomous
o conventions
Union Customs Code (Regulation 952/2013)
 Customs procedure
 Rules on origin of goods
 Value of goods
 Customs
Nomenclature of goods rates
COMMON CUSTOMS TARIFF
CUSTOMS DUTIES AND SIMIAR CHARGES
Customs duties on imports and exports and charges having
equivalent effect shall be prohibited between Member States. This
prohibition shall also apply to customs duties of a fiscal nature.
Art. 30 TFUE
 Customs duties = general prohibition
 Charges having equivalent effect = general prohibition
 Internal taxation (domestic taxes) = prohibited, if
discriminatory
QUANTITATVE RESTRICTIONS AND SIMILAR MEASURES

Quantitative restrictions on imports and all measures having

equivalent effect shall be prohibited between Member States.
Art. 34 TFEU
but:
 protective (safegard) clauses: grounds of public morality, public
policy or public security; the protection of health and life of humans, animals
or plants; the protection of national treasures possessing artistic, historic or
archaeological value; or the protection of industrial and commercial property
(art. 36) protection of the environment or the working environment (art. 114
(4) TFEU)
 „mandatory requirements”: CJEU
MEASURES HAVING AN EQUIVALENT EFFECT

C- 8/74 Dassonville
All trading rules enacted by Member States which are capable of hindering,
directly or indirectly, actually or potentially, intra-Community trade are to be
considered as measures having an effect equivalent to quantitative restrictions.
Consequently, the requirement by a Member State of a certificate of
authenticity which is less easily obtainable by importers of an authentic product
which has been put into free circulation in a regular manner in another Member
State than by importers of the same product coming directly from the country of
origin constitutes a measure having an effect equivalent to a quantitative
restriction as prohibited by the Treaty.
MEASURES HAVING AN EQUIVALENT EFFECT

C- 120/78 Cassis de Dijon

Obstacles to movement within the Community resulting from
disparities between the national laws relating to the marketing of
the products in question must be accepted in so far as those
provisions may be recognized as being necessary in order to satisfy
mandatory requirements relating in particular to the effectiveness
of fiscal supervision, the protection of public health, the fairness of
commercial transactions and the defence of the consumer.

(...) the concept of "measures having an effect equivalent to quantitative

restrictions on imports" contained in Article 30 of the Treaty is to be understood
to mean that the fixing of a minimum alcohol content for alcoholic beverages
intended for human consumption by the legislation of a Member State also falls
within the prohibition laid down in that provision where the importation of
alcoholic beverages lawfully produced and marketed in another Member State is
concerned.
MEASURES HAVING AN EQUIVALENT EFFECT

C- 267, 268/91 Keck

(…) in the absence of harmonization of legislation, obstacles to
free movement of goods which are the consequence of applying, to
goods coming from other Member States where they are lawfully
manufactured and marketed, rules that lay down requirements
to be met by such goods (such as those relating to designation,
form, size, weight, composition, presentation, labelling,
packaging) constitute measures of equivalent effect prohibited
by Article 30. This is so even if those rules apply without distinction
to all products unless their application can be justified by a
public-interest objective taking precedence over the free
movement of goods.
MEASURES HAVING AN EQUIVALENT EFFECT

C- 267, 268/91 Keck

(…) By contrast, contrary to what has previously been decided,
the application to products from other Member States of national
provisions restricting or prohibiting certain selling
arrangements is not such as to hinder directly or indirectly,
actually or potentially, trade between Member States within the
meaning of the Dassonville judgment, so long as those provisions
apply to all relevant traders operating within the national
territory and so long as they affect in the same manner, in law and
in fact, the marketing of domestic products and of those from other
Member States.
Provided that those conditions are fulfilled, the application of
such rules to the sale of products from another Member State
meeting the requirements laid down by that State is not by nature
such as to prevent their access to the market or to impede access
any more than it impedes the access of domestic products.
FREE MOVEMENT OF WORKERS
Such freedom of movement shall entail the abolition of any
discrimination based on nationality between workers of the
Member States as regards employment, remuneration and other
conditions of work and employment.
Art. 45 (2) TFEU
Exceptions:
 limitations justified on grounds of public policy, public security
or public health
 employment in the public service
FREE MOVEMENT OF WORKERS
Rights of workers migrating to another MS:
 apply for employment
 move freely within the territory of member states for this
purpose
 stay in a MSfor the purpose of employment
 mutual recognition of qualifications (diplomas, certificates)
 be employed
 social benefits, tax deductions, educations, etc.
 remain in the territory of a MS after having been employed
 non-discriminatory treatment
FREEDOM OF ESTABLISHMENT
Right to:
 to take up and pursue activities as self-employed persons
 to set up and manage undertakings, in particular companies or
firms
 to set up agencies, branches or subsidiaries in other MS
Exceptions:
 limitations justified on grounds of public policy, public security
or public health
 employment in the public service
FREE MOVEMENT OF SERVICES
Services – normally provided for remuneration, in particular
industrial, commercial, craft or professional activities
 Transnational element
 Subsidiary nature
 Separate rules: transport, banking and insurance services
Exceptions:
 limitations justified on grounds of public policy, public security
or public health
 employment in the public service
Dr Paweł Filipek

International Law
International economic organizations
ORGANIZATIONS OF INT’L ECONOMY
Most prominent:

 International Monetary Fund (IMF)

 World Bank

 World Trade Organization (WTO)

World Trade Organization (WTO)
WTO –BASIC CHARACTERISTIC
The initial idea:
to open markets, get rid of discrimination and
support global competition
is beneficial to each single country

What does WTO do?

 administers trade agreements: GATT, GATS, TRIPS
 offers mechanism of reducing trade barriers
 provides forum for negotiations, complemented by
implementation and dispute resolution
GATT, ITO AND WTO
 General Agreement on Tariffs and Trade (GATT), 1947
 International Trade Organization (ITO)
GATT + arbitration, failed to be ratified
 World Trade Organization (WTO)
Marrakesh Agreement of 15 April 1994
in operation since 1 January 1995
WTO enlarged scope of activities:
GATT, GATS, TRIPS, DSU, TPRM, plurilateral agreements
 Marrakesh Agreement

Annex 2 Annex 3 Annex 4

Annex 1
Dispute Settlement Trade Policy Review Plurilateral Trade
GATT, GATS, TRIPS, +
Understanding Mechanism Agreements

• Agreement on Civil Aircraft

Annex 1A Annex 1B Annex 1C • Agreement on Govt. Procurement
Multilateral Agreements GATS TRIPS • International Dairy Agreement
on Trade in Goods (Terminated)
• International Bovine Meat
Agreement (Terminated)
• General Agreement on Tariffs and Trade GATT 1994
• Agreement on Agriculture
• Agreement on Anti-dumping Measures
• Agreement on Customs Valuation
• Agreement on Import Licensing Procedures
• Agreement on Pre-shipment Inspection
• Agreement on Rules of Origin
• Agreement on Safeguards
• Agreement on Sanitary & Phytosanitary Measures
• Agreement on Subsides & Countervailing measures
• Agreement on Technical Barriers to Trade
• Agreement on Textiles and Clothing
• Agreement on Trade Related Investment Measures
Source: http://www.wtopunjab.gov.pk/legal_framework.html
WTO BODIES
Ministerial Conference

Dispute Settlement Body

General Council
Trade Policy Review Body

Council for Council for Council for Trade-

Trade in Goods Trade in Services Related Aspects of IPR

other Committees, Working Groups or Working Parties (20+)

Secretariat
MINISTERIAL CONFERENCE
 Ministerial Conference
– plenary body, all members represetend
 Meetings: every 2 years

© WTO/Studio Casagrande
GENERAL COUNCIL
 Meetings: a few times a year
 General Council operates as:
o Dispute Settlement Body,
o Trade Policy Review Body
 Subsidiary Councils:
(UN photo Jean Marc Ferré)
o Council for Trade in Goods,
o Council for Trade in Services,
o Council for Trade-Related Aspects of Intellectual Property Rights
 Specialized bodies:
committees, working party, working groups
WTO MEMBERSHIP

164 Members: states, customs territories, European Union

WTO ACCESSION PROCEDURE

application

working party

bilateral negotiations

protocol of accession

signing + ratification
WTO PRINCIPLES OF TRADE RELATIONS
1. Non-discrimination (equal treatment)
• Most-Favoured-Nation (MFN), exceptions: FTA, CU, GSP
• National Treatment (NT)
2. Reciprocity – to limit ‘free riders’; exceptions: GSP
3. Binding tariffs commitments – schedule of concessions
(maximum level), negotiations, compensation
4. Safety valves
• Non-economic objectives
• Fair competition (anti-dumping, subsidies)
• Difficulties in balance of payments
5. Transparency – Trade Policy Review Mechanism
DISPUTE SETTLEMENT IN WTO
Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) – Marrakesh Agreement
Bodies involved:
 Dispute Settlement Body

 panels

 Appellate Body

 Secretariat
 application for consultations

consultations (mediation)

application for a panel

proceedings

final report

adoption by DSB appeal

Appellate Body

appeal report

adoption by DSB

implementation
DISPUTE SETTLEMENT IN WTO
Implementation and compliance:
 Intention to implement, ‘reasonable period of time’
 Arbitration on ‘period of time’
 Panel decision on measures adopted
 Compensation for non-implementation
 DSB authorization to suspend obligations
 Arbitration on level of suspension
International Monetary Fund (IMF)
INTERNATIONAL FINANCIAL INSTITUTIONS

 International Monetary Fund –

maintenance of macroeconomic
stability, supervising MSs economic
policies, lending money

 World Bank –
funding specific projects
 IFIS AS ‘HYBRID’ ORGANIZATIONS
Standard IOs: Regular banks:
 their members are states  operation for-profit (charge
 address specific interest)
problems of int’l  no annual member
cooperation – contributions to operating
infrastructure to int’l costs (self-sufficient)
monetary and financial  no ‘one-member, one-vote’
systems principle, special voting
system (voting shares)
BRETTON WOODS CONFERENCE
Origins:
 Great Depression and countries reaction:
o raising trade barriers,
o devaluing currencies,
o limiting foreign exchange
→ decline in world trade:
1929: almost $ 3,5 billion;
1933: less $ 1 billion
BRETTON WOODS CONFERENCE
 UN Monetary and Financial
Conference
Bretton Woods, July 1944

Two visions:
• John Maynard Keynes
o economic growth
o Bancor
• Harry Dexter White
o price stability
o US Dollar
BRETTON WOODS SYSTEM
 Fixed exchange rates to US dollars
 Rates could be adjusted only:
▪ to correct a ‘fundamental disequilibrium’ in
the balance-of-payments
▪ with IMF’s consent
 1971, US Government suspended
convertibility of US dollar into gold
 IMF’s members options:
o currency floats freely
o fix the currency to another currency (or basket)
o adopt currency of another country
o participate in currency bloc or monetary union
IMF AIMS
Article I, Articles of Agreement of the IMF:
 promote international monetary cooperation
 facilitate the expansion and balanced growth of international trade
 promote exchange stability, to maintain orderly exchange arrangements
among members, and to avoid competitive exchange depreciation
 assist in the establishment of a multilateral system of payments in respect
of current transactions
 give confidence to members by making the general resources of the Fund
temporarily available to them
 shorten the duration and lessen the degree of disequilibrium in the
international balances of payments of members.
IMF FUNCTIONS
 Surveillance – examines economic policies of
members
 Financial assistance – lending money
Policy of conditionality – run policy reforms or money
are withheld
Loans:
o Concessional – no interest rates for a given period of time
o Non-concessional – interest charged

 Technical assistance – sending experts

IMF BODIES

International
Monetary Fund

Managing Independent
Board Executive
Director Evaluation
of Governors Board (Secretariat) Office
BOARD OF GOVERNORS
 plenary body – all MS represented,
 annual meetings
 Advisory bodies:
• International Monetary and Financial Committee
• Joint (IMF + WB) Development Committee
EXECUTIVE BOARD
 24 executive directors
 members:
 US, Japan, China, Germany, France, UK, Russia, Saudi
Arabia
 16 constituencies for other IMF members

IMF Headquarters in Washington (PD IMF)

IMF MEMBERSHIP
 189 member states
 Open membership:
o no specific statutory requirements
o autonomous in international relations
o accepted by majority of MS
o pay subscription quota
 Former members: Cuba, Taiwan
 Non-members: North Korea, mini-states (Andorra, Monaco,
Liechtenstein, Cook Islands, Niue)
IMF QUOTAS SYSTEM
 Quotas – central component of IMF’s financial resources, funds
for loans
 Quotas formula – reflect MS relative position in world economy
–
(GDP, opennes, economic variability, international reserves)
 Quotas denominated in SDR (Special Drawing Rights) – the
IMF’s unit of account
SDR
USA 82,994 billion
Poland 4,095 billion
Tuvalu 2,5 million
IMF QUOTAS SYSTEM
Quotas roles in:
 Subscriptions (quota shares) – maximum amount that
MS is to pay IMF
 Voting powers (voting shares) – basic votes +
additional votes
 Access to financing, e.g. MS can borrow
 up to 200% of quota annually
 up to 600% of quota cumulatively
Organization for Economic Cooperation
and Development (OECD)
OEEC
Organisation for European
Economic Cooperation

 1948 OEEC Charter, Paris

16 western European States
+ 3 occupied zones of Germany
 Marshall Plan
 1951 end of American aid,
new objective: trade liberalization
 End of 50-ies: political crisis of OEEC
(creation of Communities and EFTA)
OECD
Organisation for Economic Cooperation and
Development (First World, Paris Club)
 1960 OECD Convention, Paris
 18 OEEC states + USA & Canada

(OECD)
OECD MEMBERSHIP

37 members – mostly European

+ Australia, Canada, Columbia, Chile, Israel, Japan, Mexico, New Zealand, South Korea,
USA,
OECD BODIES
Institutional structure:
OECD Council (ambassadorial level)
– decision-making body
Committees – some 250 intergovernmental
committees, working groups, expert groups
Secretariat – some 2500 staff
OECD ACTIVITIES
A forum for countries committed to democracy and free
market economy
 acts by peer pressure, binding acts
 (1976) 2000 Guidelines for Multinational Enterprises
 1997 OECD Anti-Bribery Convention
 Anti-spam task force
 Model tax convention
 Programme for International Students Assessment (PISA)
AN ANNEX
AGREEMENTS IN INT’L ECONOMIC LAW
 WTO system (GATT, GATS, TRIPS, etc.)
 Free trade areas (FTA)
e.g. EU, EFTA, NAFTA, etc.
 Bilateral investment treaties (BIT)
Achmea case (CJEU)
 Cooperation agreements – „first contact”
 Free / foreign trade zones (FTZ)