westphalian system (1648) - American Society of International Law

PRINCIPLES/CONCEPTS
• Sovereignty principle
- independence and supreme
authority possessed by states
within their territory (superiorem
non recognoscentes, jus
excludendi alios)
• Effectivity principle/criterion
(ex factis oritus jus)
- force not prohibited;
- occupation, legitimate means of
acquiring title to territory
• Coexistence concept
- International law as a law of
coexistence between states
PLAYERS
States the only international actors
WESTPHALIAN SYSTEM (1648)
FUNCTIONS
Performed by the players
themselves (i.e., states)
PROCESSES
• Rule-formation processes
- Based on custom, treaties
(states as law-makers)
• Rule-enforcement processes
- Based on self-defense
(states acting by themselves)
• Arbitration
-Based on special agreement
(compromis) between states
parties to the dispute
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008
Table 1: Westphalian System
POWER
Decentralized, not organized,
absence of superior power

PRINCIPLES/
CONCEPTS*
• Principle of sovereign equality
(Art. 2 (1))
● Fundamental values and
legality principles (Art. 1 (1),
(2))
- peace and security;
- self-determination;
- human rights
• Force, occupation prohibited
(Art. 2 (4))
• Legality vs. effectivity (ex
iniuria jus non oritur)
• Authority
- prescriptive/ binding powers
(Arts. 17 (2), 25);
- majority principle (Arts. 18 (2),
27 (2) (3), 67 (2), 89 (2), Charter
and Art. 55, ICJ Statute)
• Cooperation concept (Art. 1
(3))
*States’ sovereignty limited by
legality principles and Authority
UN CHARTER SYSTEM (San Francisco 1945)
PLAYERS
• States
- system limited to inter-state
relationships;
- exclusion of new powers/actors
FUNCTIONS/
PROCESSES
• Rule-making
- codification (Art. 13 (1)(a));
- GA Declarations of Principles (not
binding);
- ICJ quasi-legislative function:
advisory opinions (Art. 96);
- SC binding decisions (Art. 25)
• Enforcement System
- suspension, expulsion (Arts. 5,
6);
- Collective Security System (Chap.
VII)
• Ascertainment and Judicial
functions
- SC Political ascertainment (Art.
39);
- ICJ judicial functions (Arts. 92,
94)
• Administrative lawgivers:
- Secretariat (Chapter XV);
- ECOSOC (Chapter X);
- Trusteeship Council (Chapter
XIII);
- UNAT
POWERS*
• Characters and limits:
- organized decision-making
power;
- legislative weakness;
- preeminence of executive;
- imbalance of powers;
- veto power (Art. 27 (3)) blocking
SC decisions Chapter VII;
- weakness of judicial control
*Collective Security System not
able to guarantee respect for
global values
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008
Table 2: UN Charter System
UN SUPREMACY
• Preeminence of the Charter’s
obligations (Art. 103)
• Regional arrangements or
agencies (Chap. VIII)
- activities consistent with the
purposes and Principles of the UN
(Art. 52 (1));
- no enforcement action shall be
taken without the authorization of
the SC (Art. 53 (1))
• Specialized Agencies
- agreements to co-ordinate the
activities with the UN (Arts. 57,
63);
- the GA approves financial and
budgetary arrangements and
examines the administrative
budgets (Art. 17 (3))

THE PILLARS
• Verticality
- regulatory: universally defined
principles;
- functional: integrated decisional
processes with institutions’
participation
• Legality
- legality principle (ex iniuria jus
non oritur);
- control of legality over global
governance
• Integration
- organizational model of the
world’s society based on the
gradual integration between
various systems of organization
(legal, social, economic, religious,
and mediatic) at different
aggregation levels (local to
worldwide)
• Collective guarantees
- integrated mechanisms of
monitoring, ascertainment, and
coercive implementation measures
GLOBAL LEGAL SYSTEM
LEGAL SYSTEM FOR A UNIVERSAL HUMAN SOCIETY
PRINCIPLES/
CONCEPTS*
• Global constitutional
principles/values
- prohibition on the use of force;
safeguarding self-determination,
human rights; common heritage
concept; sustainable development
• Multilateral Regimes
- to formulate regulations, to
manage, protect, and conserve
environment, global commons,
natural resources, cultural goods
• Global Economy
- WTO/GATT rules, world financial
regulations
• Integration concept
- harmonization/ integration of
legal systems in the direction of
global law
- global law is the third stage of
development of international law,
the preceding two phases being
the international law of
coexistence and the international
law of cooperation
*The emergence of rules oriented
towards individuals, ethnic groups,
humankind, marks the transition from
inter–state society to global
community
• States
PLAYERS
• Non-state actors/global forces
(IGOs, NGOs and different forms
of power, ie. new powers)
GLOBAL FUNCTIONS/
PROCESSES*
• Rule-formation
- quasi–organic processes;
- public participation, together
with non–governmental
organizations, and private sectors
• Regime of compliance and
enforcement
- integrated systems for
monitoring and action
• Global judicial function
- global courts and tribunals to
protect global values and
commons
- participation of civil society in
international courts and tribunals
(e.g. Human Rights Courts,
International Criminal Court)
*Multilateral normative processes and
actions for managing worldwide economic
and social development as well as threats
to international peace and security
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008
Table 3: Global Legal System
GLOBAL GOVERNANCE*
• Co-management of global
values and commons
• Integrated decision-making
processes (institutional
participation and control)
• Multilateral actions and
shared responsibility
• Central role of UN
• Judicial control over the
executive
*Shared governance under UN control
involving the forces of the global
community (UN organs, states, non-state
actors, IGO, NGOs, civil society, and the
private sector)

RULE-FORMATION PROCESSES IN GLOBAL LAW
SYSTEMS AND TREATY REGIMES GENERAL RULES AND PROCESSES
• NORMATIVE REGIMES FOUNDED IN
INTERNATIONAL INSTITUTIONS
● UN Charter System
● The Bretton Woods System/WTO
● Regional treaty regimes
• LEGAL REGIMES for co-management of the
environment, cultural goods, natural resources, and
global commons (the Oceans; Antarctica; Outer Space;
the Atmosphere)
• INFORMAL LAW-MAKING promulgated by
international arbitral panels, networks of regulatory
entities, or non-state accreditation and standard-setting
bodies
PROCESSES
A) CUSTOM
• Notion
- general practice accepted as law (Art. 38 (1)(b), ICJ Statute)
• Characters
- general international rules, substantive and procedural (e.g., pacta sunt servanda and
customary treaty law)
• Requirements
- diuturnitas, opinio juris sive necessitatis
• Formation Process
- uniform and constant behavior of “each” individual member of the international community;
- accompanied by acceptance. The will of “each” member remains distinct
• Decline of Custom
B) GENERAL PRINCIPLES OF LAW
• Notion
- general principles of law recognized by civilized nations (Art. 38 (1)(c), ICJ Statute)
• Characters
- principles of legal logic (ne bis in idem, nemo judex in re sua, etc.) and principles of natural law
(prohibition of genocide, slavery, other gross violations of human rights)
• Formation Process
- universal principles of law posed at the level of national legal orders;
- accepted internationally/applied by international tribunals
C) INTEGRATED PRINCIPLES OF LAW
• Notion/Characters
- principles of the shared management of global interests/values
- immediate and direct expression of the will of the global community;
- without the need for custom/each state’s acceptance (i.e., omisso medio)
• Formation Process*
- intersection of prevailing forces and the public interest:
- “proposal” of dominant powers/global forces;
- accepted as law in institutional fora (quasi-organic process).
Proposal and consent represent the basic elements of a dynamic, democratic process for the
adoption of general international norms
*Security Council’s Open Debates;
G8 as a forum for proposals, vested with power to initiate
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008
Table 4: Rule Formation Processes in Global Law
BASIC RULES/JUS COGENS
● Notion and Characters
- global constitutional
principles, peremptory norms
of general international law
(jus cogens);
- binding on all actors of the
global community;
- no derogation is permitted
(Arts. 53, 64, Vienna
Convention);
- can be modified only by a
subsequent norm of general
international law having the
same character (Art. 53,
Vienna Convention)
● Formation Processes
- processes indexed in A), B),
C), before. Not all general
rules produced by these
processes (customary norms,
general principles of law;
integrated principles of law)
are peremptory norms
These processes do not include
soft law (i.e. the General
Assembly's declarations of
principles;the ICJ’s advisory
opinions) that is not binding
but can only produce another
legal effect: the "effect of
lawfulness”

UN COLLECTIVE SECURITY SYSTEM
(Chap. VII, Charter)
CONCEPTS
• Managed by Security Council
• Centralized (Arts. 11 (2); 24-25; 39-50)
• Veto rule (Art. 27 (3))
REQUIREMENTS
• Threats to the peace, breaches of the peace, and
acts of aggression
• Ascertainment by Security Council (Art. 39)
MECHANISM AND MEASURES
• Provisional measures (Art. 40)
• Measures not involving the use of armed force:
these may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic,
radio, and other means of communication, and the
severance of diplomatic relations (Art. 41)
• Measures involving the use of force: peace operations
(Art. 42)
GLOBAL LAW-ENFORCEMENT SYSTEM
CONCEPTS
• Enforcement measures co-managed:
responsibility shared between states, UN,
global/regional IOs; NGOs
• Cooperative approach
• States acting in the common interest (uti
universi)
• Central role of the UN/organs acting as
community agents
• Overcoming the veto rule
REQUIREMENTS
• Serious violations of peace, human rights,
democracy, and other erga omnes
obligations
• Objective ascertainment of violations by
UN organs
• Institutional control over states acting in
the common interest
COLLECTIVE GUARANTEES/
INTEGRATED SYSTEMS
SYSTEMS AND MEASURES
Table 5: Global Law-Enforcement System
• Unilateral/multilateral military actions
A) Authorized by the Security Council
B) Non-authorized
• Requirements
- taken in lieu of ineffectiveness of institutions/SC blocked by veto;
- necessity and urgency;
- support of a large majority of states, regional IO, NGOs, and
world’s public opinion;
- UN legitimation: control of necessity, proportionality, respect of
jus cogens
• Economic coercion/peaceful measures
• Unilateral/multilateral economic, diplomatic, and others peaceful
measures against responsible state;
• Targeted sanctions pressuring individuals and entities (i.e., smart
sanctions);
• UN ascertainment of violations and control
• Co-managed regimes/systems
• Human rights implementation systems;
• Integrated monitoring systems;
• Integrated diplomatic systems to settle conflicts (e.g., the Road
Map);
• Mixed systems to enforce peace process in countries ravaged by
civil war;
• Integrated judicial systems to enforce crimes committed by
individuals and to provide redress to victims: cooperation between
state organs and international bodies (ad hoc, mixed criminal
tribunals, ICC) according to the Statutes;
• Integrated UN counter-terrorism system
• Regime compliance and enforcement in the global Commons;
• Pollution control regimes
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008

GLOBAL JUDICIAL SYSTEM
WORLD’S JUDICIAL BODIES AND TRIBUNALS INTERNATIONAL COURT OF JUSTICE (ICJ)
• International Tribunal of the Law of the Sea
(ITLOS)
• WTO Dispute Settlement Body (WTODSB)
• International Criminal Bodies
- International Criminal Court (ICC)
- International Criminal Tribunal for the Former
Yugoslavia (ICTY)
- International Criminal Tribunal for Rwanda (ICTR)
- Mixed/internationalized criminal jurisdictions (in Sierra
Leone, Cambodia, East Timor, Lebanon)
• Arbitration
- Permanent Court of Arbitration (PCA)
- International Centre for Settlement of Investment
Disputes (ICSID)
• international compliance bodies based on multilateral
conventions (especially in the environmental field).
ICJ AS PRINCIPAL JUDICIAL ORGAN OF THE UN (ART.
92, CHARTER and ART. 1, ICJ STATUTE)
• Contentious Jurisdiction
• Competence:
-only states may be parties (Art. 34 (1), Statute)
• Jurisdiction:
- all legal disputes (Art. 36 (1), Statute);
- acceptance of the compulsory jurisdiction through
declaration made under Article 36 (2), Statute
• Applicable law:
- the Court decides in accordance with international law (Art.
38 (1) Statute);
- power to decide ex aequo et bono (Art. 38 (2), Statute)
• Decision/judgment:
- binding character, between the parties only (Art. 94 (1),
Charter; Art. 59, Statute);
- final and without appeal (Art. 60, Statute);
- remedies of enforcement (Art. 94 (2), Charter)
• Advisory Function
(Art. 96, Charter; Chapter IV, Statute)
ICJ GLOBAL TRENDS*
• The Court as the Guide directing the development of
human rights law, humanitarian law, selfdetermination
- The Advisory function as quasi–legislative function
• Court protection of human rights, peace, and other
global values beyond the Charter veto and Statute:
- The expansion of the power to indicate (Art. 41, Statute):
the binding nature of provisional measures (LaGrand
case);
- The expansion of advisory function and the “definitive”
ascertainment of violations of erga omnes obligations;
-The validation of the procedure “Uniting for Peace” (GA
Res. 377 (V) A)
• Court’s Authority
- authority over states’ organs;
- judicial supremacy: the “intrinsic authority” of
the Court’s decisions;
- authority in law-making processes
• Court’s control over the UN organs
- Relationship Court/ Security Council
- functional parallelism;
- complementarity Court/Council;
- judicial control over the SC decisions;
- overcoming of the veto rule
*The Court as a Supreme Constitutional Court
guardian of global constitutional values/providing
legitimacy to world governance
© Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot, 2008
Table 6: Global Judicial System