westphalian system (1648) - American Society of International Law

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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
Page 1 and 2: PRINCIPLES/CONCEPTS • Sovereignty
Page 3: THE PILLARS • Verticality - regul

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