LAW AND INTERNATIONAL RELATIONS Jawahir Thontowi Limited only for International Students of Faculty...

LAW AND INTERNATIONAL

RELATIONS

Jawahir Thontowi

Limited only for International Studentsof Faculty of Law, Universitas Islam Indonesia

Yogyakarta2014

COURSE OF OUTLINECOURSE OF OUTLINE1. INTRODUCTION2. INTERNATIONAL LAW AND INTERNATIONAL RELATIONS3. STATE AND NONS STATE ACTORS IN INTERNATIONAL

RELATIONS4. THE LAW OF TREATIES AS INSTRUMENT OF

INTERNATIONAL RELATIONS5. RULE OF DIPLOMATIC RELATIONS6. RULE OF INTERNATIONAL ORGANIZATIONS7. AN EQUAL LEGAL STATUS IN UNEQUAL STATE CAPACITY

(International law of Economic and Environmental Law)8. HUMANITARIAN ASSIATANCE, REFUFEES, AND IDP’S9. INTERNATIONAL INTERVENSTON ( INTERNATIONAL

ARMED CONFLICT AND NON-INTERNATIONAL ARMED CONFLICT)

10. INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL CRIMINAL COURT

JAWAHIR THONTOWI 2014

INTRODUCTIONINTRODUCTIONRelevant Reasons of this study

International law cannot in practical way be understood until students know to apply all the rules into dynamic case in addressing global issue.

Scope and objective:Matter of international public law, security, world peace, world order, politics (national and international interest), military, economics, and science and modern technology.


INTRODUCTIONINTRODUCTIONThe Benefit of study:

To facilitate student with ability to know international law, but also to be able to implement it in empirical dimension of state action for the purpose of national interest which should fight in international a global forum.

Method and Approach, Monolog and Dialog, student centre learning model, and cases analyses.

Evaluations and Monitoring:By providing middle and final exam, assignment, and case problem solving.


INTERNATIONAL LAW AND SOME INTERNATIONAL LAW AND SOME PRINCIPLES OF INTERNATIONAL PRINCIPLES OF INTERNATIONAL

RELATIONRELATION

International (Public) LawA set of principles, doctrine, rules, customary rules, practices of state behavior and conduct which concerns to govern relations; between states and states. States and organization, organization and alike, and states and individual person in order to maintain global peace, and establishing world order (J.G Starke 1988, Martin Dixon, Jawahir Thontowi)



RELATIONRELATION

Object of matters of International Law:

World Peace, World Order, preventing Pirates, Gross Violation of Human Rights Genocide, War Crime, Crime Against Humanity, the Act of Aggression, Terrorism, Transnational Organized Crimes, International Court of Justice (ICJ), International Criminal Court (ICC).



RELATIONRELATION

Sources of International law International Treaty (Bilateral or

Multilateral Treaties) International customary rules, General Principle of Law International Decision recognized

by civilized countries, as a high qualified teaching published by recognized, as a subsidiary mean of source of international law.



RELATIONRELATION

Subject of International Law State Actors, A full Sovereign State Non-State Actors: International

Organizations, Liberal Movement Organization, Belligerent and Insurgency, Vatican and Individual Person.


SOME PRINCIPLES OF SOME PRINCIPLES OF INTERNATIONAL INTERNATIONAL

RELATIONRELATIONArt 1 (2): to develop friendly relations

among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace.

Art 2 (1): the supreme equality of all its members of UNO (Equality of Sovereign States), respect, help, promote and protect and prevent each other.



RELATIONRELATIONNon-Intervention Principle

Basic Principle, all form of state intervention are legally prohibited. Art 2 (4): all members shall refrain in their international relations from the threat or use force against the territotial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of United Nations

Intervention can be done except for the purpose of collective intervention, humanitarian assistance, and intervention by states request



RELATIONRELATIONGood Faith and Pacta Sunt ServandaSelf defence rights (Jawahir Thontowi and

Pranoto Iskandar, Hukum Internasional Kontemporer, 2007).

Reciprocity Principle, Equitable Retaliation, or similar degree of action (J. Thontowi, Penegakan Hukum dan Diplomasi di Era SBY).


INTERNATIONAL INTERNATIONAL RELATIONRELATION

A state power is defined as relationship between two political actor (state A) has the ability to control the main and actions for actor (state B).

State power, a capacity of a state to consider that coercion (military force) is to be among many factors comprising power, which include economic capability, political cohesiveness. Effectiveness or political system, leadership skill, and reputation.

According to Morgenthau, thus, state power may comprise anything that establishes and maintain control of man over man and (its covers) all social relationships which serve that end, from physical violence to the most subtle psychological ties by which one mind controls another (Hans Morgeenthau)


TYPE OF STATE POWERTYPE OF STATE POWER Super Power States

The big fives countries which holding the power all over countries because they sit as permanent members of security council (America, China, United Kingdom, France and Russia). They play an important influence not only to be followers, but they could also use military force to achieve certain and for national interest.

Middle PowerCountries alliances of super power states which are economically and politically considered as stable countries. They practically are able to collaborate with super powers, they prove in making decision in SC UNO. For example: Australia, Canada, Italia, Spain, Singapore and Malaysia.


TYPE OF STATE POWERTYPE OF STATE POWER Small Power States

Countries that are economically and politically considered as unstable and powerless. In certain degree, they appear to be treated unjustly and seldom these countries challenger the super powers. A large number of human resource and natural source are available to be utilized, but they are too dependent to foreign countries.


INGRIDIENTS OF STATE INGRIDIENTS OF STATE POWER POTENTIALPOWER POTENTIAL

Natural Source of Power: geography, rich natural resources, a larger number of population.

Natural Source of state power are enhanced and modified into constrained: Tangible source of power: Geography area, population, natural resources, military, education and advance technology.

Intangible Source of power: National image, public support, good governance and clean government, vision charismatic leaders.


INGRIDIENTS OF STATE INGRIDIENTS OF STATE POWER POTENTIALPOWER POTENTIAL

State Power exercised by1. Diplomatic means negotiations.2. Economic means Positive (USA guarantee

MFN to China, in spite of the fact that China is poor human rights record).

3. Negative Sanctions: Black list target state: Arab states blacklisted that conducted companies in Israel, boycott.

4. Military means: Compliance and Deterrence

(Karen Mingst. Essesntial of International Relations. New York. P.121)


TANGIBLE ELEMENT OF TANGIBLE ELEMENT OF POWERPOWER

1. Population: China, Rusia, Soviet Rusia and America, but it is not the case, Israel is a small numbers or population, but powerful.

2. Territory, but many countries like Australia, Canada, Zaire, and Sudan have larger territory are not stronger as we compare to USA.

3. Natural Resources and industrial capacity.4. Agricultural capacity.5. Military Strenght and mobility (Soviet, US,

China, West Germany, France, United Kingdom, Iran, Poland, East Germany, and Italia 1977-1979)


INTANGIBLE ELEMENT OF INTANGIBLE ELEMENT OF POWERPOWER

1. Leadership and Personality (Napoleon, Hitler, Ghandi, Kennedy, Roevelt, Mao Stallin, Kruschef, Nixon).

2. Bureaucratic-organizational efficiency.3. Type of Government: democratic, and

undemocratic countries.4. Societal cohesiveness, morality strengthen.5. Reputation in positive way, and6. Foreign Support and Dependency(Theodore A. Coloumbis. Introduction to

International Realtion: Power and Justice. University of Scuthern, Missipi. P.72)


THE LAW OF TREATIES AS THE LAW OF TREATIES AS INSTRUMENT OF INTERNATIONAL INSTRUMENT OF INTERNATIONAL

RELATIONSRELATIONS

The Vienna Convention 1969 article 2(1)(a) defines a treaty as :

"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"

International Agreement Among Nations In written form Governed by International Law


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TERMS USED IN TERMS USED IN INTERNATIONAL TREATIESINTERNATIONAL TREATIES

Treaty (nomen generalisimum)

ProtocolAgreementStatuteDeclarationConvention

Modus vivendiExchange of lettersArrangementFinal ActProcess verbalGeneral ActExchange of notes


HARD AND SOFT LAWHARD AND SOFT LAW

Hard laws legally binding forceTreaties, Agreement, Covenant, Convention,

Statutes, Protocol and order

Soft Law No legal binding MoU, Agreed Minutes, Exchange of Notes.


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Similiraties International Agreement In written form Governed by IL

Differences Vienna Conv 1969:

States as Legal Subjecs Vienna Konv 1986:

Legal Subjetc are States and International

Contrast and CompareContrast and Compare


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Unwritten International Treaties?Unwritten International Treaties?

Vienna Convention 1969: Have legally binding as designated by

international law Case :

◦ Nuclear Test Cases: Australia v. France; New Zealand v. France (1974) I.C.J. Rep. 253, hal. 267-70.

Case Position : ◦ France is not state parties in respect to the

Nuclear Test Ban Treaty), an attempt to try nuclear- test in Southern Pacific ocean


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• Australia & New Zealand protest & brought a case to ICJ.

• Before hearing, France concluded its nuclear test,

• By unilateral act, France pronounced that its country would not commit it in those areas,

• In practice, however, Australia and New Zealand insistent it to be brought in ICJ

• ICJ’S Decision:

“no different between whether or not the declaration written or unwritten, it is not fundamental, Declaration might make a commitment and so legally binding declaration was not made in written“


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THE FUNCTIONS OF THE FUNCTIONS OF INTERNATIONAL BILATERAL INTERNATIONAL BILATERAL

TREATIES TREATIES • As a practical instrument in transaction and

communication for all countries in international communities

• An Instrument for developing state corporation Rome Convention 1957 (European Economic

Community) APEC ASEAN• An Instrument for international dispute settlement

mechanism Continental shelf between Indonesia – Australia

• As a source of International Law (Legally Certain and Powerful)


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TYPES OF INTERNATIONAL TYPES OF INTERNATIONAL TREATIESTREATIES

• Involved State Parties :• Bilateral Treaties (Closed Agreement)• Trilateral Treaties • Multilateral Treaties Law Making Treaties

• Delegation and its forms• Heads of States • Inter-Government• Inter-states• Conducted by Minister or Chief of

government Instruments• By non-governmental organization


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PROCESSES OR PROCEDURAL PROCESSES OR PROCEDURAL ASPECT OF INTERNATIONAL ASPECT OF INTERNATIONAL

TREATIES MAKING TREATIES MAKING Presidential Appointment (Executive

matters) A Letter of Credential/Credent Registration, and exchange document, Powerful Authority Lobby and negotiation (clarification,

clarity, Authentication) Signature Ratification, until 60 Countries


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Treaties Implementation Treaties Implementation

• Dispositive treaties is used to be bound legally Border Territory Delivery or succession on state territory

• Executory treaties, cannot be implemented automatically but gradual processes Continued to operate during its international

• Law-making treaties (multilateral)

• Treaty Contract Direct Source of International law bilateral


INTERNATIONAL TREATIES IN INTERNATIONAL TREATIES IN INDONESIAINDONESIA

Art 11 UUD 1945Act no 24/ 1999:Whether or not Indonesia use Monism or

dualism, when implement International Treaties:

Not given clearly in Indonesian Constitution.

Two Types of Ratification: By Parliament and Presidential decree In order to avoid high risk of IT ratification,

there is a reservation method to be usedRome Statute 1998, International Criminal

Court


DIFFERENT EFFECT OF USING TREATIES DIFFERENT EFFECT OF USING TREATIES AND CONTRACTS or MoUAND CONTRACTS or MoU

Treaty international agreement concluded in writing between States which creates rights and obligations in international law.

MoU records international "commitments", but in a form and with wording which expresses an intention that it is not to be binding as a matter of international law (non legally binding instrument)


IMPLEMENTATION OF TREATIES IN IMPLEMENTATION OF TREATIES IN NATONAL LEGAL SYSTEM NATONAL LEGAL SYSTEM

Monism International law and national law are two components of a single body of knowledge called Law. Thus both sets of rules operate in the same sphere of influence and are concerned with the same subject matter. Hans Kelsen sees the international law as superiority in case of conflict of law, as a consequence of basic norm of all law.Hersch Lauterpacht International law as superior because it offers the best guarantee for the human rights of individuals.


IMPLEMENTATION OF TREATIES IMPLEMENTATION OF TREATIES IN NATONAL LEGAL SYSTEM IN NATONAL LEGAL SYSTEM

DualismDenies international law and national law operate in the same sphere. Acknowledge the superiority of national law.Triepel, Strupp international law regulates the relations between states whereas national law regulates the rights and obligations of individuals within states.


IMPLEMENTATION OF TREATIES IMPLEMENTATION OF TREATIES IN NATONAL LEGAL SYSTEM IN NATONAL LEGAL SYSTEM

Moderate theory international law and national law are prioritize on their own sphere. None of them is superior

Ian Brownlie, Sir Gerald Fitzmaurice, Rousseau, Anziloti national law appear to be obeyed and international law exist as a consequences of an agreement made by the states to respect.


Theories about Theories about international law in the international law in the national legal systemnational legal system

Incorporations doctrine International law becomes part of national law without the need for express adoption by the local courts or legislature.

US, United Kingdom, Canada, Australia


Theories about international Theories about international law in the national legal law in the national legal

systemsystemTransformation doctrine

Rules of international law do not become part of national law until they have been expressly adopted by the states through appropriate manner as by legislation.

famous in South East Asia countries as well as Indonesia



RELATIONSRELATIONS In the process of concluding international treaties

States act through their representatives. State representatives have to produce full powers.

“Full powers” means 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.

Heads of State, Heads of Government and Ministers for Foreign Affairs, by virtue of their functions, can perform all acts relating to the conclusion of a treaty without having to produce full powers (Article 7).



RELATIONSRELATIONSThe process of the conclusion of treaties

consists of several stages including: negotiations, adoption of the text of a treaty, authentication of the text of a treaty and expressing consent to be bound by a treaty.

The consent of a State to be bound by a treaty may be expressed by:◦ Signature (Article 12);◦ Exchange of instruments constituting a

treaty (Article 13);◦ Ratification, acceptance or approval

(Article 14);◦ Accession (Article 15).


RESERVATIONRESERVATIONA State may, while signing, rarifying, accepting,

approving or acceding to a treaty, formulate a reservation.

Reservation means a unilateral statement, however phrased or named, made by a State by which it intends to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State (Article 2 p. 1d).

Formulating reservations is permitted unless the reservation is prohibited by the treaty or is incompatible with the object and purpose of the Treaty.

Other States may accept or object to reservations. Article 309 of the 1982 Convention on the Law of

the Sea provides that “No reservations or exceptions may be made to this Convention unless expressly permitted by the articles of this Convention”.


INTERNATIONAL TREATIES IN INDONESIAN LEGAL SYSTEM

Art.11 1945 Constitution :“(1) The President with the approval of the House of

Representatives may declare war, make peace and conclude treaties with other countries.

(2) The President in making other international agreements that will produce an extensive and fundamental impact on the lives of the people which is linked to the state financial burden, and/or that will requires an amendment to or the enactment of a law, shall obtain the approval of the House of Representatives.

………….. “


PRACTICAL PROCEDURE OF RATIFICATION BY LEGISLATION ACT AND PRESIDENTIAL DECREE

Ratification done by President or represent by foreign affair minister (art.6&7 Presidential Decree no.102/2001)

Ratification to be done when it is required by the agreements. (art.9(1) law no 24 of 2000)

Ratification perform through legislation or Presidential Decree (art.9(2) law no 24 of 2000)


Ratification by Legislation Ratification by Legislation ActAct

To be perform in the matter related to:political issues, peace, defense, and security of the country; change region setting boundaries or territory of the Republic of Indonesia; sovereignty or sovereign rights; human rights and the environment; establishment of new legal norms; loans and / or grants.Art.10 Law no 24 of 2000


CERTAIN REQUIREMENTS OF RATIFICATION BY PRESIDENTIAL DECREEOther matter regarding to art.10

law no 24 of 2000related to procedural matter, need to be implemented immediately and give no effect to the national legislation.e.g. agreements related to science and technology, trade, culture, protection to foreign investor, merchant service, etc.


RULE OF DIPLOMATIC RULE OF DIPLOMATIC RELATIONSRELATIONS

In International law, states are superiorem non recognoscentes, which means that only states (and i.o.) can begin diplomatic relation with other subjects of international community.

For this reason, article 2 of Vienna Convention (1961) states: «The establishment of diplomatic relations between states, and of permanent diplomatic missions, takes place by mutual consent».


GOVERNMENT INSTITUTIONS REPRESENTING DIPLOMATIC AGENCIESUsa, BritishIndonesia


RULE OF DIPLOMATIC RULE OF DIPLOMATIC RELATIONSRELATIONS

The functions of a diplomatic mission consist, inter alia, in:(a) Representing the sending State in the receiving State;(b) Protecting in the receiving State the interests of the

sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the

Article 3 Vienna Convention 1961


PROCEDURAL ASPECTS OF SENDING AND RECEIVING CORP DIPLOMATIC

Accreditation of the head of mission (articles 4-6 )

Recognition and admission of career and honorary consular officers (articles 10-12)

Appointment of a chargé d’affaires ad interim (article 19)

Agreement for the appointment of military attachés

First arrival of heads of diplomatic missionDeparture of heads of diplomatic mission


The sending State must make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.

The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.


A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.


LEGAL REQUIREMENS FOR ESTABLISHMENT OF CORP DIPLOMACY AGENCIESAMBASADOR

KONSUL GENERAL


Privilege and Immunity of Privilege and Immunity of Consular AgentConsular Agent

Protection of consular premises and archive.

Use of national flag and coat-of-arms

Accommodation Inviolability of the consular

premises Exemption from taxation of

consular premises Inviolability of the consular

archives and documents Freedom of movement Freedom of communication Protection of consular officers Personal inviolability of consular

officers Notification of arrest, detention or

prosecution Immunity from jurisdiction

Liability to give evidence Exemption from registration

of aliens and residence permits

Exemption from work permits

Social security exemption Exemption from taxation Exemption from customs

duties and inspection Obligation of third party. Protection of the consular

premises Inviolability of consular

archives and documents Exemption from customs

dutiesJAWAHIR THONTOWI 2014

ExtraterritorialityForeign ambassadors,

government officials, and diplomatic representatives were granted a special status and exemption from local jurisdiction extended to the staff and family of Diplomatic Agents receive extensive procedural, fiscal, and other immunities from the jurisdiction of the host country.


SANCTION OF PERSONA NON-GRATA

Article 9 (1) :“The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.”


RULE OF INTERNATIONAL RULE OF INTERNATIONAL ORGANIZATIONSORGANIZATIONS

IGOs are formal institutions comprised primarily of sovereign states (referred to as member states), or of other intergovernmental organization (e.g. UN, EU, NATO, IMF, G8, etc). They can be multi or general-purpose organizations, taking up any international issue, such as UN.

They can also have narrow mandate focusing on a specific economic, political, social or military issue, examples: NATO, WHO.

Membership can be open to all actors, or limited by some objective criteria (e.g. EU, NATO conditionality)


AN EQUAL LEGAL STATUS IN UNEQUAL AN EQUAL LEGAL STATUS IN UNEQUAL STATE CAPACITY (International law of STATE CAPACITY (International law of

Economic and Environmental Law)Economic and Environmental Law)

Definition of International Law of Economic:

John H.Jackson ,”International economic law could be defined as including all legal subjects which have both an international and an economic component”


International Law of EconomicInternational Law of Economic

George Scewarzerberger,”the branch of international public law which is concerned with the ownership and exploitation of national recourses, production and distribution of good, invisible international transaction of an economic and financial character, currency and finance, related services and organization of the entities in such activities.”


Topics within the Term of Topics within the Term of International Economic LawInternational Economic Law

International Trade Law, including both the international law of the World Trade Organization and GATT and domestic trade laws;

International Economic Integration Law, including the law of the European Union, AFTA and NAFTA.


Private International Law, including international choice of law, choice of forum, enforcement of judgments and the law of international commerce;

International Business Regulation, including antitrust or competition law, environmental regulation and product safety regulation;

International Financial Law, including private transactional law, regulatory law, the law of foreign direct investment and international monetary law, including the law of the International Monetary Fund and World Bank;

International tax law; and International intellectual property law.


The Basis of International The Basis of International Economic LawEconomic Law

The sources of international economic law are the same as those sources of international law generally outlined in Article 38 of the Statute of the International Court of Justice.

International conventions,International custom,The general principles of law Judicial decisions and the teachings of the

most highly qualified publicists of the various nations


Principles of International Principles of International Economic LawEconomic Law

Most Favored Nation (MFN)National treatmentPacta sunt servanda Freedom Sovereign equality Reciprocity Economic sovereigntyThe duty to co-operate Permanent sovereignty over natural resources Preferential treatment for developing

countries in general and the least-developed countries in particular.


Most Favored Nation Most Favored Nation (MFN(MFN

MFN is a status or level of treatment accorded by one state to another in international trade, means the country which is the recipient of this treatment must nominally receive equal trade advantages as the most favored nation by the country granting such treatment. Trade advantages include low tariffs or high import quotas.


National Treatment National Treatment Treating foreigners and locals equally.

Under national treatment, if a state grants a particular right, benefit or privilege to its own citizens, it must also grant those advantages to the citizens of other states while they are in that country.

Imported and locally-produced goods should be treated equally.


World Trade OrganizationWorld Trade OrganizationOfficially commenced on 1 January

1995 under the Marakech Agrement, replacing the General Agreement on Tariffs and Trade(GATT)

Regulating trades between countries participant, provides a framework for negotiating and formalizing trade agreements, and a dispute resolution process aimed at enforcing participant's adherence to WTO agreements


Dispute Settlement Dispute Settlement WTO members agreed on the Understanding

on Rules and Procedures Governing the Settlement of Disputes (DSU) annexed to the "Final Act" signed in Marrakesh in 1994

An action of violating the trade rules instead of taking action unilaterally, members of WTO will use the multilateral system of settling disputes.

Dispute settlement process involves the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized institutions.


The Dispute Settlement Body The Dispute Settlement Body (DSB)(DSB)

The DSB is responsible for administering the Dispute Settlement Units.

The DSB has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations and authorize the suspension of obligations under the covered agreements. (Article 2.1 of the DSU)


Panels Panels In a way tribunals, Panels in

charge of adjudicating disputes between Members in the first instance. They are normally composed of three, and exceptionally five, experts selected on an ad hoc basis.


The panel composed for a specific dispute must review the factual and legal aspects of the case and submit a report to the DSB in which it expresses its conclusions as to whether the claims of the complainant are well founded and the measures or actions being challenged are WTO-inconsistent.

If the panel finds that the claims are indeed well founded and that there have been breaches by a Member of WTO obligations, it makes a recommendation for implementation by the respondent .

(Articles 11 and 19of the DSU)


Appellate BodyAppellate BodyA permanent body of seven

members entrusted with the task of reviewing the legal aspects of the reports issued by panels. The Appellate Body is thus the second and final stage in the adjudicatory part of the dispute settlement system. As it did not exist in the old dispute settlement system under GATT 1947


ArbitratorsArbitratorsAvailable as an alternative to dispute

resolution by panels and the Appellate Body (Article 25 of the DSU)

Arbitration results are not appealable but can be enforced through the DSU (Articles 21 and 22 of the DSU)


The Director-General and the The Director-General and the WTO SecretariatWTO Secretariat

The Director-General of the (WTO) may, acting in an ex officio capacity, offer his/her good offices, conciliation or mediation with a view to assisting Members to settle a dispute. (Article 5.6 of the DSU)


International International Environmental LawEnvironmental Law

International environmental law is to be understood as the aggregate of international legal norms and principles, regulating the relations between its subjects with respect to protection of the environment against harmful impact and to rational (ecologically feasible) utilization of its components for securing the optimal life conditions for present and future generations


REFUGEES AND IDP’SREFUGEES AND IDP’S

The practice of granting asylum to people fleeing persecution in foreign lands is one of the earliest hallmarks of civilization.

The 1951 Refugee Convention defines refugee is someone 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country.“(see Article 1A(2)).


Refugees have to move if they are to save their lives or preserve their freedom. They have no protection from their own state - indeed it is often their own government that is threatening to persecute them. If other countries do not let them in, and do not help them once they are in, then they may be condemning them to death - or to an intolerable life in the shadows, without sustenance and without rights.

Refugees is an asylum seeker whose application has been successful decided by UNHCR


Asylum seeker is a person who has applied for asylum under the 1951 Refugee Convention on the Status of Refugees on the ground that if he is returned to his country of origin he has a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group. He remains an asylum seeker for so long as his application or an appeal against refusal of his application is pending.


Internally Displaced Internally Displaced PeoplePeople

Unlike refugees, IDPs have not crossed an international border to find sanctuary but have remained inside their home countries. Even if they have fled for similar reasons as refugees (armed conflict, generalized violence, human rights violations)

IDPs legally remain under the protection of their own government


The United Nations High The United Nations High Commissioner For RefugeesCommissioner For Refugees

Established by the United Nations General Assembly on 1950 .

The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide.

It’s primary purpose is to safeguard the rights and well-being of refugees.


UNHCR´s original mandate does not specifically cover IDPs, but because of the agency´s expertise on displacement, UNHCR has the lead role in overseeing the protection and shelter needs of IDPs as well as coordination and management of camps.


The Convention relating to the The Convention relating to the Status of Refugees (1951 Status of Refugees (1951

Convention)Convention)The protection provided under the

1951 Convention is not automatically Permanent. A person may no longer be a refugee when the basis for his or her refugee status ceases to exist.

E.g: refugees voluntary repatriate to their home countries once the situation there permits such return. It may also occur when refugees integrate or become naturalized in their host countries and stay permanently.


Can someone be excluded from refugee protection?The 1951 Convention only protects persons who meet the criteria for refugee status. People in certain categories are excluded from such protection if suspected:

They have committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime outside their country of refugee, or

They are guilty of acts contrary to the purposes and principles of the United Nations.


Rights of refugees under Rights of refugees under the 1951 Conventionthe 1951 Convention

The cornerstone of the 1951Convention is the principle of non-refoulement contained in Article 33. According to this principle, a refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom.

This protectionmay not be claimed by refugees who are

reasonably regarded as a danger to the security of the country, or having been convicted of a particularly serious crime, are considered a danger to the community.


Other rights contained in the 1951 Convention include:

The right not to be expelled (Article 32);The right not to be punished (Article 31);The right to work (Articles 17 to 19);The right to housing (Article 21);The right to education (Article 22);


Other rights contained in Other rights contained in the 1951 Convention the 1951 Convention include:include:The right to public relief and(Article

23);The right to freedom of religion

(Article 4);The right to access the courts(Article

16);The right to freedom of movement

within the territory (Article 26); andThe right to be issued identity and

travel documents (Articles 27 and 28).


Refugee’s ObligationRefugee’s ObligationRefugees are required to abide

by the laws and regulations of their country of asylum and respect measures taken for the maintenance of public order.


Dispute Settlement Dispute Settlement MechanismMechanism

Diplomatic Approach/Political Approach

• Negotiation• Good Offices• Mediation• Conciliation• Inquairy/ Fact finding


Negotiation “...is a diplomatic procedure whereby representatives of states engage in discussing matters...between them...to clarify and reconcile their divergent positions and resolve the dispute.”Boleslaw A. Boczek, International Law: A Dictionary 356 (Scarecrow Press, Dictionaries of International Law, No. 2, 2005)

Good Offices takes the involvement of third party to persuade the disputing parties to negotiate. The third party did not take part in the negotiation.


Mediation is clearly a political method of settlement. In mediation a third-party, acceptable to both parties to the dispute, effects communication between the parties and participates actively in the process of negotiation by offering proposals for settlement.


Conciliation differs from arbitration in one very important respect: the result of the former is not legally binding and thus has no influence on any further litigation of the dispute.

Boczek defined conciliation as “...a diplomatic method of third-party peaceful settlement..., whereby a dispute is referred by the parties, with their consent, to a permanent or ad hoc commission, whose task is impartially to examine the dispute and to prepare a report with the suggestion of a concrete proposal.”

Boleslaw A. Boczek, International Law: A Dictionary 356 (Scarecrow Press, Dictionaries of International Law, No. 2, 2005)


Joint fact-finding is a multistep collaborative process for bringing together parties in such technical disputes, parties decide together how information should be gathered, analyzed, and interpreted.

To establish the factual bases for a settlemet between conflicting states.


Adjudication Approach• Arbitration :Public International ArbitrationInternational Commercial Arbitration

• International CourtInternational Court of JusticeInternational Criminal CourtAd Hoc Tribunal


Arbitration considered to be judicial as opposed to political means of settlement because their results are both legally binding.

The terms of arbitration are agreed on in advance either through an ad hoc agreement or a treaty.

the parties to a dispute refer it to one or more arbitrators, by whose decision they agree to be bound.

Third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable.


Potential Advantage of Potential Advantage of Arbitration Arbitration When the subject matter of the dispute is highly

technical, arbitrators with an appropriate degree of expertise can be appointed

Arbitration is often faster than litigation in courtArbitration can be cheaper and more flexible for

businessesArbitral proceedings and an arbitral award are

generally non-public, and can be made confidential

In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied


International Court

International Court of Justice• The subject is solely on states.• Legally binding

International Criminal Court The subject is individual Legally binding


LAW AND INTERNATIONAL RELATIONS Jawahir Thontowi Limited only for International Students of Faculty...

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