International Law

International Law contains principles and rules of conduct that nations regard as binding upon them and, therefore, are expected to and usually do observe in their relations with one another. International law is the law of the international community.

The need for some principles and rules of conduct between independent states arises whenever such states enter into mutual relations. Rules governing the treatment of foreign traders, travelers, and ambassadors, as well as the conclusion and observance of treaties, developed early in human history. The oldest known treaty, preserved in an inscription on a stone monument, is a peace treaty between two Sumerian city-states, dating from about 3100 ВС.

Even more than other ancient people, the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens subject to Roman rule and the relations between Roman citizens and aliens. They were the first people to recognize in principle the duty of a nation to refrain from engaging in warfare without a just cause and to originate the idea of a just war.

Modern international law emerged as the result of the acceptance of the idea of the sovereign state, and was stimulated by the interest in Roman law of the 16th century.

International law stems from three main sources: treaties and international conventions, customs and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the law-making process of the international community. United Nations resolutions now may also have a great impact on the growth of the so-called customary international law that is synonymous with general principles of international law.

The present system of international law is based on the sovereign state concept. It is within the discretion of each state, therefore, to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international agency such as the UN is free to ratify any convention adopted by

that agency.

Treaties and conventions were, at first, restricted in their effects to those countries that ratified them. They are particular, not general, international law; yet regulations and procedures contained in treaties and conventions have often developed into general customary usage, that is, have come to be considered binding even on those states that did not sign and ratify them. Customs and customary usages otherwise become part of international law because of continued acceptance by the great majority of nations, even if they are not embodied in a written treaty instrument. Generally accepted principles of law and justice fall into the same category and are, in fact, often difficult to distinguish from customs.

Since the beginning of the 19th century, international conferences have played an important part in the development of the international system and the law.

At the end of World War I the League of Nations was established by the covenant signed in 1919 as part of the Treaty of Versailles. Pursuant to provisions in this covenant, the permanent Court of International Justice was established in 1921. The League of Nations was created as a permanent organization of independent states for the purpose of maintaining peace and preventing war. During its existence 63 countries were members of the League at one time or another.

The League of Nations was the forerunner of the United Nations. The UN began its life with a membership of 50 nations. There are 191 Member States in the UN now. The aims and purposes of this organization encompass the maintenance of peace and security and the suppression of acts of aggression.

International law regulates intercourse among nations in peacetime and provides methods for the settlement of disputes by means other than war. Apart from procedures made available by the UN, these methods include direct negotiation between disputants under the established rules of diplomacy, the rendering of good offices by a disinterested third party, and recourse to the International Court of Justice. Other peacetime aspects of international law involve the treatment of foreigners and of foreign investments; the acquisition and loss of citizenship; and status of stateless persons; the extradition of fugitives; the privileges and duties of diplomatic personnel.

Dwell on the Topic 8

Legislation of the European Union (part 1)

There are two principal forms of Community legislation.

First, there is the “primary legislation” created directly by the Member States. It comprises the Community law contained in the treaties establishing and developing the European Communities. Examples are the Treaty of Rome, the Merger Treaty, the Single European Act, the Accession Treaties making provisions for the accession to the Community of new Member States. In addition to the main text of a treaty there may be additional annexes and protocols, which have the same legal force as their parent treaty. The treaties lay down the basic aims of the Community, establish the institutions and their powers, formulate the policies of the Community.

Secondly, there is the “secondary legislation” of the Community, the legal rules created by the Community institutions under the authority of the treaties.

Community secondary legislation can only be enacted if a treaty provision authorizes it. The Treaty does not confer general powers but enacts individual powers to act. Furthermore, the Single European Act and the Treaty of Union extend the areas of competence reserved for Community legislative action. Whether there is authority to enact secondary legislation, therefore, depends on the existence of a provision of a treaty. Any question may be referred to the Court of Justice.

The principal secondary legislative measures are regulations and directives.

In many cases, it is possible for secondary legislation to be drafted in such a way that its content can be translated directly and automatically into the domestic legal system of each Member State in order that Community law will be identical in each Member State.

The measure used here is the regulation. A regulation is a legislation created for each Member State by the Community and it replaces any existing and conflicting rule created by the domestic legal system of a Member State. That is, the exact words of a regulation automatically become part of the law of each Member State in a uniform manner and at the same time with no further action being required by the Member State. Member States do not need to ratify a regulation. Regulations adopted by the Council must be published in the Official Journal of the European Communities by the Council's Secretary-General. The Official Journal is published in each of the official languages of the Community.

On other occasions, it may be that the content of secondary legislation cannot be translated directly into the legal systems of the Member States in a uniform manner because different Member States may have different legislative and administrative mechanisms in their own systems for dealing with the relevant subject matter (e.g. statute, delegated legislation or Royal or Presidential Decree).

The measure used here is the directive. A directive is actually addressed, usually through its final article, to a Member State, to some or to all Member States. A directive is binding upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods. A directive, being addressed to Member States rather than directly applicable in Member States, is an instruction to each Member State to bring its legal system into exact conformity with the objectives specified in the directive (and within a specified time limit). It will usually impose this obligation by stating that Member States shall take the measures necessary to achieve the purpose(s) intended and conveyed therein. The specified time limit may be months or years and this permits each Member State to proceed at its own speed to repeal existing domestic laws, regulations and administrative practices and to enact new domestic laws, regulations and administrative practices.

If a Member State fails to fulfill the instruction, the omission may be rectified by the Commission bringing an action before the Court of Justice or by an individual in the national courts of the Member State under the principle of ‘direct effect’. The principle of direct effect only has the result of imposing an obligation on the Member State (or one of its organs and not on private organizations or individuals.

Dwell on the Topic 9

Legislation of the European Union (part 2)

Sometimes the Community will wish to make a legally binding rule which only affects one or a limited number of Member States or an identifiable organization or even one individual. Sometimes the Community makes so called administrative decisions ( in particular in the organization of agricultural and competition matters).

The measure here is called a decision. A decision is binding on the addressee of the decision.

The Council must decide unanimously whether directives and decisions should be published for the purposes of information in the Official Journal of the European Communities. As a matter of normal practice, directives are usually published in the Official Journal, which is published in each of the official languages of the Community.

The nearest equivalent within the Community to a national legislature is the Council. In practice, the Council, being in legal form simply a small group of representatives from each Member State, cannot possibly undertake the vast amount of labor involved, or possess the complete expertise needed, in the enactment of secondary legislation. Consequently, the Council works through working parties composed of the administrative staff of the Council and the Committee of Permanent Representatives (COREPER).

COREPER co-ordinates the work needed to prepare the Council for the formal adoption of secondary legislation.

In essence, the Community «legislator» represents a balance of power between the representatives of the Member States (the Council of Ministers) and the representative of the Community (the Commission) . The balance is laid down in the Treaty and is achieved by the fact that the final decision belongs to the Council. Treaty provisions state that regulations, directives and decisions are to be made, issued and taken by the Council. But the Council can only act upon a proposal from the Commission, and if it acts on a proposal from the Commission, unanimity is required for an act constituting an amendment to that proposal. There is a further balance between the desire to allow Member States to protect their national interests and the desire to limit the right of Member States to veto matters on which there is overwhelming agreement by the majority of Member States. This is achieved by provisions which provide for decisions to be taken by the Council by a simple majority of states, by unanimity and by a ‘qualified majority’, designed to achieve some measure of weighting according to the population of the state. A feature of the development of the Community has been a gradual change from the requirement of unanimity to the requirement of qualified majority. The Single European Act took this even further by amending a number of important provisions of the EEC Treaty which required unanimity so that, in the interests of «unblocking» and speeding up the Community decision-making process, the requirement now is only that of a qualified majority and by making legislative decision making in several of the new areas of Community competence.

There is no single legislative procedure that is applied unwavering to the creation of all secondary legislation.

In all cases the Council, as has been seen, can only act following a proposal from the Commission. The Commission may initiate a proposal of its own motion or it may be required by the Council to draw up a proposal. The proposal will be drafted within the appropriate Commission Directorate (s) General and the final text, if approved by the Commission, will be submitted to the Council for formal adoption.

Dwell on the Topic 10