EUROPA-INSTITUT DER UNIVERSITÄT DES SAARLANDES

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1 EUROPA-INSTITUT DER UNIVERSITÄT DES SAARLANDES INTERNATIONAL LAW SCHOOL International Trade Law (1) Prof. Dr. Marc Bungenberg, LL.M. Winter 2015/16 Organization: Lecture material is available on the website of the chair of Prof. Bungenberg Password: bungenberg Consultation by arrangement 2 3 1

2 Overview Session 1 Literature Organisational issues Structure of the course Introduction- Basic Public International Law - Sources of PIL - Subjects of PIL Lecture Overview (1) World Trade Law WTO Law Institutional Set Up of the WTO Dispute Resolution GATT, GATS, TRIPs, GPA (New regionalism) NAFTA TTIP CETA TPP EU-China Lecture Overview (2) International Investment Law International Raw Materials Law

3 Literature (1) Basic Literature Brownlie, Principles of Public International Law, 8 th ed., 2012 Herdegen, Principles of International Economic Law, 2013 Qureshi/Ziegler, International Economic Law, 3 rd ed., 2011 Krajewski, Wirtschaftsvölkerrecht, 3. Aufl., 2012 Tietje (Hrsg.), Internationales Wirtschaftsrecht, 2. Aufl., 2015 Schöbener/Herbst/Perkams, Internationales Wirtschaftsrecht, 2010 Literature (2) WTO-Law: Herrmann/Weiß/Ohler (Hrsg.), Welthandelsrecht, 2. Aufl., 2007 Hilf/Oeter (Hrsg.), WTO-Recht, 2. Aufl., 2010 Prieß/Berrisch (Hrsg.), WTO-Handbuch, 2003 Stoll/Schorkopf, WTO Welthandelsordnung und Welthandelsrecht, 2002 Stoll/Schorkopf, World Economic Order, World Trade Law, 2006 Van den Bossche (ed.), The Law and Policy of the World Trade Organization, 3 rd ed., 2013 Matsushita/Schoenbaum/Mavroidis/Hahn (eds.), The World Trade Organization, 3 rd ed., 2015 International Economic Law What are international economic relations? Krajewski: International economic relations cover the transnational exchange auf goods (goods and services), the transnational transfer of capital and currency as well as the transnational economic movement of persons (enterprises and privat persons). What is international economic law?

4 PUBLIC INTERNATIONAL LAW AN INTRODUCTION Public International Law: A Definition (1) What is public international law? Definition: Public international law is the body of rules that is legally binding on States in their interactions with other States, individuals, organizations and other entities. Wide scope: E.g. diplomatic relations, use of force (initiation of wars), humanitarian law (conduct of war), trade and investment, human rights, law of the sea (oceanic resources), environmental law, space law, international criminal law Public International Law: A Definition (2) What is public international law? Public international law sets out the legal obligations, responsibilities and rights of one subject of PIL vis-à-vis one another. This aspect of international law is based on the Principle of Sovereign Equality

5 Public International Law: A Definition (3) What is public international law? Public international law also regulates relations between States and non-state actors (e.g. individuals, international organizations, NGOs and multinational companies). International law also imposes certain obligations and responsibilities on States to protect those individuals. E.g. States at war must not target and kill civilians of another State. Public International Law: A Definition (4) What is public international law? Distinguished from private international law: Private international or conflict of laws regulates the comity of States in giving effect to the municipal laws of another State relating to private persons. Distinguished from municipal law: In every State, there is legislature which enacts the law binding upon its citizens, an executive which enforces the law and judiciary which interprets the law. Public International Law & National Law (1) What is the relationship between public international law and national law? The dualist position No relationship between international law and national law. International norms produce effects in the national legal order only if there is an internal procedure that regulates the entry of international law in the national legal system. The monist position The international legal order and the national legal system is one unified system. International law is automatically incorporated and forms part of national law

6 Public International Law & National Law (2) Public International Law & National Law (3) Public International Law & National Law (4) Art. 25 [Primacy of international law] German Constitution The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory. Precedence of public international law over national legislation but not over the constitution. Art. 94 Dutch Constitution Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions. Interpreted by the courts as giving international treaties precedence over constitutional law. Similarly in Belgium, although no express constitutional provision to this effect. Art. 55 French Constitution Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party. The Conseil Constitutionnel is competent to decide whether international treaties are compatible with the Constitution. Ratification of an international treaty that is in conflict with the constitution can take place only after constitutional revision (Art. 54 French Constitution). In theory, Constitution above treaty law

7 Public International Law & National Law (5) International human rights treaties The Constitutions of several post-transition countries [Romania (1991), Slovakia (1992), and the Czech Republic (1992)] explicitly grant international human rights treaties precedence over the constitution. Ius cogens Peremptory norms of international law are in some States accepted as superior to the constitution. Art. 193 (4) Swiss Constitution The mandatory provisions of international law must not be violated. Public International Law & EU Law (1) Art. 216 (2) Treaty on the Functioning of the European Union Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States. Art. 218 (11) Treaty on the Functioning of the European Union A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised. Public International Law & EU Law (2) Art. 351 Treaty on the Functioning of the European Union The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. [ ]

8 Sources of Public International Law (1) 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. Sources of Public International Law (2) International Treaties Customary International Law General Principles of Law Means for the Determination of Rules of Law Judicial Decisions Teachings of the Most Highly Qualified Publicists Sources of Public International Law (3) No formal hierarchy between the sources of public international law Public international law as a horizontal system in which there is no sovereign who makes laws Ius cogens norms are hierarchically superior

9 Sources of Public International Law (4) Sources of Public International Law (5) Sources of Public International Law (6) International Treaties Term irrelevant (Agreement, Charter, Convention, Declaration, Memoranda of Understanding, Protocol etc.) Principle: Declaration of intent between subjects of PIL from which international legal rights and obligations derive International legal capacity of the contracting parties Affiliation of the subject matter to PIL Legal intention to be bound (absent in Codes of Conduct, Gentlemen s Agreements, political declarations of intent) International Treaties Distinction of international treaties by (e.g.) treaties requiring national approval (with ratification) and administrative agreements, bilateral and multilateral treaties, oral and written treaties. Law of international treaties is codified in the Vienna Convention on the Law of Treaties Customary International Law Two elements of customary international law Evidence of general practice Consistency Generality Duration accepted as law (opinio juris): Opinio juris sive necessitatis (an opinion of law or necessity)

10 Sources of Public International Law (7) Customary International Law Importance of State practice Relevant organs Primarily the government, since entitled for external representation; But also other government bodies (parliament, courts, authorities) Acts of State practice Measures to comply with obligations and to make use of rights; Basically Consistency, Generality and Duration required; Conclusion of international treaty can be an evidence; Not necessary, that all States are involved in the State practice; Legitimacy of objection: persistent objector is not bound Sources of Public International Law (8) Opinio juris Determination basically takes place by means of evidence Interpretation of statements of the relevant organs: Existence of an intention to be legally bound or only expression of a political intentioned claim? In some circumstances: Resolutions of international Covenants of States (question of interpretation) Sources of Public International Law (9) No intention to be legally bound is indicated by Acts of Courtoisie Supporting measures in cases of disaster Soft Law Codification of customary law Assignment of the International Law Commission E.g. diplomatic and consular law

11 Sources of Public International Law (10) General Principles of Law Legal principles recognized by national legal orders Restriction to civilized nations is obsolete today Requirement: broad consistency in national legal systems Applicability to PIL Determination by comparison of laws Meaning: Mostly fundamental legal questions Closing of gaps Sources of Public International Law (11) General Principles of Law Examples: Conflict of law rules: lex posterior, lex specialis Venire contra factum proprium Good faith Prohibition of abuse of law Sources of Public International Law (12) Fundamental Principles of Public International Law Sovereign equality Peaceful settlement of disputes International responsibility Diplomatic protection

12 Subjects of Public International Law (1) Subjects of Public International Law (2) Subjects of Public International Law (3) Actors of International Economic Law (= Subjects of Public International Law?) States International Organizations International Non-Governmental Organizations (NGOs) Multinational Enterprises Individuals Notion A subject of PIL is an entity or person that can be capable of possessing and excercising rights and duties under international law. Those are traditionally: States International Organizations Special Cases Increasingly private persons and organizations enjoy a partial international legal capacity PIL knows a range of increments of international legal capacity Only States have an absolute international legal capacity All other subjects of PIL only enjoy a partial international legal capacity

13 Subjects of Public International Law (4) Subjects of Public International Law (5) Subjects of Public International Law (6) Concept of a State Jellinek: The State is the with original jurisdiction endowed union of settled people. Three elements can be derived from this statement: From the word settled : the State territory From the words union and people : the State population from the words original jurisdiction : the State power Concept of a State Montevideo Convention on the Rights and Duties of States: Art. 1 lays down four criteria for sovereignty, which are often considered to be norms of international customary law: The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states. State Population A long-term union of people over which sovereign power is exercised Natural persons who hold the nationality Nationality as a long-term legal relationship: Establishment of rights and duties Personal jurisdiction of the States Particular relationship of loyalty

14 Subjects of Public International Law (7) Subjects of Public International Law (8) Subjects of Public International Law (9) Nationality of legal persons? Governed by the applicable national company law Foundation theory Registered-office theory Control theory Read on this: ICJ Barcelona Traction Judgement Conferral of nationality is governed by national law and is granted at birth through naturalization Connecting principles: ius soli (birth within state territory) ius sanguinis (descent from a national) Marriage? Obligation of recognition of the nationality of other States However genuine link necessary State territory Consolidation of geographical areas, which are bounded and are governed by a common legal order Natural part of the earth s surface No minimum size

15 Subjects of Public International Law (10) Distinction between territorial sovereignty and territorial jurisdiction Comparable to the distinction between property and possession Territorial jurisdiction can be restricted or assigned by contract Panama Canal Zone ( ) New Territories in Hong Kong ( ) Guantanamo (current) Territory of the Saar Basin ( ) Subjects of Public International Law (11) Land territory Defined by State borders through contract Spatial link is not necessary (group of islands, extraterritorial areas) Borders do not have to be exactly surveyed Core area has to exist Borders are product of historical development Mutual definition By a treaty of peace By arbitral award Subjects of Public International Law (12) Air space Air column to space, aprox. 100 km Coastal/territorial sea Including seabed and subsoil Zone until max. 12 sm from the baseline

16 Subjects of Public International Law (13) Subjects of Public International Law (14) Subjects of Public International Law (15) State power Ability to give the State an internal order (and to assert this order) and to act autonomously in external matters within PIL Components of State power: Territorial jurisdiction Personal jurisdiction International Organizations Characteristics Foundation on the basis of an international treaty between States (and other IOs) Own bodies; Long-term; Range of responsibilities in the area of PIL Independent exercise of duties towards members International legal capacity is limited by founding statute (partial international legal capacity) Principle of limited power Requirement of recognition by other subjects of PIL (takes place by establishment of contracutal relations) E.g. EU, WTO, IMF, World Bank Group, OECD Historical justified special cases (atypical subjects of PIL) Holy See International Committee of the Red Cross Sovereign Military Order of Malta

17 Subjects of Public International Law (16) Subjects of Public International Law (17) Subjects of Public International Law (18) Multinational Enterprises Enterprises which are economically active in more than one State According to the prevailing opinion: no subjects of PIL Preparation of legally non-binding Codes of Conduct through different international organizations E.g. OECD Guidelines for Multinational Enterprises, Global Compact Individuals Until the mid-20th century: generally no international legal capacity Nowadays: Human Rights can establish directly applicable international rights for individuals Economic freedoms in regional integrated areas Non-Governmental Organizations (NGOs) Increasing importance in all international relations not only in the economy Amnesty Human Rights protection Greenpeace environmental protection Basically no rights and duties for NGOs Exceptions in regional Human Rights Conventions Some IOs maintain formal contacts to NGOs

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