Law School Outline - Public International Law Outline - FSU college of Law- Teson

PUBLIC INTERNATIONAL LAW – FALL 2006 I. The Nature of International Law A. What is International Law? 1. A Decentralized System: No World Government a. No World Government: There is no sovereign, no state making the law. A decentralized society is created from the bottom up – through the consent and activity of the subjects. It is probably similar to how primitive society developed with law made over time. b. Characteristics of decentralized system i. Lack of legislature ii. Lack of judiciary: there is no compulsory jurisdiction. iii. Lack of executive power 2. No Legislature a. Rules are created by states themselves (bottom-up) – when they have a common interest i. Treaty and custom  The 2 methods of law-making in IL (a) Treaty  Similar to a K, but instead of the parties being human beings, they are sovereign states. The sovereign states give their express deliberate consent to enter into the treaty. (b) Customary int‘l law  Similar to common law. Rules develop over time through practice. Customary international law is created by repeated practice/acquiescence over time by states and at some time becomes obligatory upon the states. (1) Ex. Ambassador immunity – later diplomatic immunity codified through treaty b. Exceptions: i. Special regimes/institutions (ex. EU, WTO) (a) Regimes normally created by treaties (EU) (b) But remember limited power for these institutions. For example, the UN does not legislate (w/ one exception that has to do w/ executing the law). 3. No Judiciary a. No compulsive jurisdiction, jurisdiction ONLY by consent—the states have to consent to jurisdiction. If states consent to jurisdiction then they CANNOT withdraw during the case; the decision rendered is legally binding on the states involved in the case. i. The U.S. is one of the most powerful nations in the world and has agreed to jurisdiction in the least number of cases b. Exceptions: i. Again, special institutions, such as various European courts ii. Also, when states do agree to jurisdiction, judicial decision is legally binding, as in the ICJ 4. No Executive Power a. There is no world government, and the UN is not one i. UN General Assembly has no enforcement (legislative) powers b. Ex. NAFTA has ruled against the US on a number of disputes and there is nothing Canada can do to enforce this (except maybe retaliation) c. IL despite the organizations, treaties, customary law – the main instrument of enforcement is retaliation. d. Exceptions i. The UN Security Council, art. 25, UN Charter (a) Under certain situations that have to do w/ breach of peace and mostly acts of aggression where UN can intervene. Reserved for most egregious breaches of peace (1) Basically, under Article 25 of the UN Charter the UNSC‘s powers are limited to peace and security only. There has to be an outbreak of hostilities or a threat of hostilities to the well-being of citizens. 1 (b) 2 famous cases where they failed to do so – Kosovo and 2003 Iraq War ii. Some regional organizations (OAS, OAU) (a) Organization of American States (b) Organization of African Unity (c) OAU has been pretty active but these regional organizations are overall less active and less important than the UN. e. The Problem of Empire: Enforcement by the hegemon i. Hegemony – domination by one world superpower—the USA (a) The idea is that the Empire (USA) is like the world government in that it is the only one who can provide services or help to others. Thus, the problem of the hegemon imposes costs. Some argue that the Hegemon provides a solution the problem of enforcement. ii. Is having one world superpower a good or bad thing for world law enforcement? (a) Argument: It would be in the interest of one world superpower to enforce IL. iii. Do we want a world structure where there is a balance of power btwn all states? OR do we want a hegemon? iv. What about weaker states free-riding on the stronger power? (a) A hegemon is not able to preserve power if it is not able to provide benefits to the rest of the world (weaker states) v. We have a rule of law domestically in the U.S. b/c of the asymmetry in pwr btwn the people and gov‘t. This same concept could also apply to int‘l order. B. Different IL Views 1. Traditional View: Oppenheim a. Why does O. say IL is binding on states, instead as binding among states? i. There are a # of int‘l rules binding on entities other than states—for example individuals and non-sate groups—so it would be slightly wrong to say among states. Rules also benefit ind‘ls and companies. ii. IL started as the law that governed relations among kingdoms. There were rules of territory, war, immunity, etc. iii. IL started to recognize other kinds of entities – mostly individuals – the law of Human Rights, ind‘l liability for war crimes iv. IL moves away from state-centric approach, even though still really state-centric b. What exactly is the distinction between obligations erga omnes and “regular” obligations? i. Erga [toward] omnes [all, everyone] obligations. The obligations are multi-lateral and thus apply to everyone. ii. Regular Obligations are unilateral obligations iii. Most obligations are not ―erga omnes‖ but rather regular obligations. Ex. NAFTA obligation btwn US and Canada breached by the U.S. Germany cannot complain about this breach b/c it has nothing to do w/ Germany c. What does O. mean by universal IL, general IL, and particular IL? i. Universal – laws that bind all states and cannot be departed from (a) Mostly customary – states can agree anything they want to the contrary (b) Small subset of it is peremptory (unconditional) ii. General – applies to all states, every state has these obligations (a) Exceptions: The fact that a law is universal does not mean that a state cannot depart from it. iii. Particular – only exist in a particular region – ie. Treaty law d. What is the difference between public and private IL? 2 i. Private – companies, domestic matters concerning individuals (about the juxtaposition of legal systems ii. Distinction btwn public and private has become blurred. e. Traditional Rule (Positivism—posits that international law is what governments agree to between themselves) has a # of characteristics i. Nation-states are the actors ii. IL only created by the consent of states (custom, treaties) iii. So there is no appeal to justice or natural law – only concerned w/ order. iv. Sovereign states have different values so we want to keep a minimalist order – no common values. v. The only actors are the nation-states and governments. Everyone else is subordinate. 2. Thomas Franck – Alternative to Traditional Rule – (modernized version of the traditional rule – rules created by states) a. Why do states comply with IL (if there is no sovereign)? i. States comply w/ IL when they view it as legitimate. Thus, states comply not only because of fear of punishment but also because of reputation and prestige—they want to appear to be law abiding. ii. Legitimate when comes from the right process. b. What does F. mean by ―right process‖? i. A defined procedure ii. Factors for Right Process (a) Determinacy – the more precise a rule, the more it will induce compliance (b) Pedigree – emphasizing historical origins (1) Treaties (2) Things that have always been done a certain way c. What is ―determinacy‖ of a legal norm? Why is it a good thing? i. The more precise a norm, the more it will induce compliance and guide behavior. d. Are symbolic validation/ritual/pedigree the same as authority of a rule? i. Pedigree  The norm has been created by the right procedure or a customary rule developed over centuries. ii. Symbolic validation/ritual – showing adherence over time. 3. Cosmopolitan Internationalism: Teson‘s argument a. What is Tesón‘s argument? Does it describe or prescribe? i. IL is a way to organize force, a way to organize mutual claims. ii. Characteristics (a) All law has to be morally justified. (b) States are not the fundamental moral units. (c) Gov‘ts and states are artificial constructs, created to fulfill specific functions. (d) Sovereignty is not a primary or intrinsic value; it is a derivative value. (e) The main values of moral legal reasoning come from ind‘ls not states. So we should think about justice not among gov‘t but among ind‘ls. b. Is it true that democracies are more peaceful? What about the U.S. foreign adventures? i. 1980s studied showed democracies were more peaceful vis a vis each other, not necessarily w/ other non-democracies 4. Kant a. In order to have peace nations have to have justice internally b. Democracies do not make war w/ each other i. Why? 3 (a) In a democracy the people are sovereign and the gov‘t is accountable. When a democracy goes to war, the people themselves go to war. The people internalized the cost making it less likely they are going to be belligerent. (b) In an autocracy the dictator sends others to war. There‘s a severance btwn the government and people. (c) Liberal Peace Argument – among liberal nations, like Europe ii. Empirical Argument – That if people are self-governed, then citizens on both sides of any dispute will be very cautious in bringing about a war whose consequences they must bear. iii. Normative Argument – An international legal system that authorizes tyranny is a morally flawed system. Governments should be required by international law to observe human rights b/c that is the right thing to do. 5. John Rawls‘s proposal – a. Divides the regimes of the world into 3 kinds i. Liberal ii. Not liberal but decent iii. Tyranny b. Says Teson ignores the illiberal but decent regimes. These regimes may not allow women to vote or the people to elect gov‘t but they do not commit genocide, etc. C. International Relations Theory 1. The problem of cooperation a. Traditional view – when you have states in a state of anarchy it is very difficult to cooperate. b. The governments interact in a situation that is strategic. They are players in the game. What one player decides to do is tied with what another player decides to do. c. The Prisoner‘s Dilemma (handout) i. Suppose there are 3 actors India and Pakistan. ii. Suppose they are considering their options relating to Arms Control. iii. Both India and Pakistan can either Arm/Disarm iv. The worst situation is if one disarms and the other arms. v. They are better of mutually when they are both disarmed rather than when they are both armed. vi. However, the rational thing for them to do is to ARM. Why? (a) If they cooperate and disarm, then the rival could seize the opportunity and arm. (b) By arming you cover against the worst option. (c) The rational move – is suboptimal to the mutually cooperative move. d. Cooperation? i. Under the conditions of self-interest people will not cooperate spontaneously. ii. The reason why is if one nation makes the first move toward cooperation then the other player will defect. iii. Why?? Is this important to IL  B/C int‘l norms are needed to cure the pathologies of the prisoner‘s dilemma. Actors will not cooperate spontaneously. Something will have to be done to make them cooperate. e. Public goods i. Ex. global warming – apparently will only be solved by all the nation‘s of the world acting together. ii. Problem is a country like Argentina will say it is going to cooperate but they will not b/c they know their cooperation is minimal and will free-ride on others. iii. Collective action problem. 2. Do international regimes (institutions) really help overcome problems of cooperation? What about nations ganging up against an isolated government? 4 a. Professor Aceves – Game Theory – Institutionalism i. The problem of int‘l cooperation can be reduced by creating institutions. ii. Do not necessarily have to be formal institutions but a forum where states create rules. Rules lessen the temptation to cheat. iii. Institutions cause states to think about the long-run  In the long run they will have to confront each other in the future (a) Repeated interactions lead to less defection. (b) Iteration promotes cooperation. iv. Discount Rate in game theory jargon (a) If the discount rate is high meaning you do not care about the future, then the state will tend to defect. Ie. Rogue states – don‘t care what others think, act opportunistically, Ie. U.S. war on terror (b) On the other hand, if the discount rate is law  More likely to cooperate. v. International Institutions reduce transaction and information costs. Thus, the cost of negotiations is reduced. This facilitates cooperation. (a) Ie. Panama, historically had one grievance – the return of the Panama Canal. The UN, was an effective way for Panama to communicate to the rest of the world that it wanted the canal back. vi. Institutions promote issue linkage. (a) Ex. trade and human rights vii. Easier to monitor behavior through institutions. 3. The ―cheap talk‖ problem II. CUSTOM A. Sources on International Law 1. Meaning of sources  The methods of law creation. 2. 2 Sources we‘re studying a. Customary  behavior of states over time b. Treaty  Contract c. Art 38 of the ICJ treaty lists sources of IL. Accepted that Art 38 does not est. a hierarchy. B. Concept -- Custom 1. Defn: Customary law is those norms that are the result of repeated behavior of states that acquire a normative force over time. 2. Custom has 2 elements a. Behavior= material element i. Repeated behavior met by tolerance or acquiescence of another nation ii. Some instances of behavior become law and some do not. b. Opinio Juris= ―Psychological‖ element i. The belief that the practice has become legally permitted or required. ii. In IL, there is really no judiciary. Have to look at whether the community of states require compliance and whether a court would enforce it. 3. Uncertain when a practice matures into custom C. North Sea Continental Shelf Cases 1. Background Continental Shelf: a. Territorial Sea: 3 miles adjacent to the coast belongs to the state. b. High Seas: Everything beyond the 3 miles is the high seas and was open to everyone. c. 1945, President Truman said the U.S. had jurisdiction past the Territorial Sea into the continental shelf. i. Continental shelf had minerals, oil etc. 5 d. Customary IL always starts w/ a violation of a rule. Any state who wants to create a new rule has to take the risk of violating an old rule. e. When the rule receives acceptance the practice strengthens. f. In 1958, the 1958 Geneva Convention on the Continental Shelf reflected the new law. 2. ISSUE: Delimitation of the continental shelf btwn the various states of the North Sea. (Norway, Germany, Denmark) a. GB already had a treaty w/ Norway. b. This was not an issue of the water but the underlying sea bed – oil, minerals. c. Problem was the delimitation btwn Netherlands and Gemany. 3. The rule of equidistance (article 6.2, Geneva Convention) a. Continental shelf law evolved from the Truman Doctrine into the Genev Convention, Article 6 (1958). b. 1st Question: Are the countries party to the treaty? i. Denmark and Netherlands ratified -- >so party to the treaty. ii. Germany signed, but did no ratify it. (a) Signatory but not a party. (b) For most formal treaties ratification is required. iii. So, Denmark and the Netherlands could not invoke the treaty against Germany 4. Netherlands and Denmark: a. Netherlands and Denmark have to find a creative way for Art 6 Sec. 2 to be applicable to Germany. They argue that the equidistance was not only a treaty rule but customary international law. b. Equidistance rule – Where the same continental shelf is adjacent to the territories of 2 adjacent States, the boundary of the continental shelf shall be determined by agreement btwn them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary hall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. i. B/C the Germany is concave it would have left Germany w/ very little area using the equidistance method. c. Equidistance rule became ―crystallized‖ by the drafting of the Convention  N and D trying to make the argument that the equidistance rule is binding on Germany i. Court: Not so. (not CIL) (a) Rule was introduced experimentally; (b) has exceptions: (1) agreement and (2) ―special circumstances (3) Reservations are allowed  A reservation is a unilateral statement from a party of a treaty that purports to exclude the legal effects of a provision of the treaty – in respect to the country that makes the reservation.  Art I, II of Geneva do not allow reservations but Art 6 does allow reservations.  IL does not allow opportunistic int‘l exemption. ii. N and D arguing that the equidistance rule had great influence and became customary IL. (a) Court responds that there were not enough ratifications. d. Another argument by N and D was that the equidistance rule had become customary law subsequent to the convention. i. Ct says still not CL b/c of a lack of opinion juris (a) A belief that is was mandated by CL.  did not have this 6 (b) Think about Thomas Franc ―When the perception of the view was legitimate‖ 5. North Sea III – Ct rules against the Netherlands and Denmark a. Germany i. Equidistance method leads to unfair result (a) Continental shelf must be apportioned equitably ii. Court: basically agrees (a) Delimitation decisions must be just, and a mere accident of geography (the concave German coast) cannot be decisive. (b) ―Natural prolongation‖ principle: Ideally, every state should be awarded a continental shelf that is a ―natural prolongation‖ to its mainland. 6. Problems a. The evidence of opinio juris is virtually impossible to produce b. The Court simply used opinion juris b/c it didn’t like the result of the invoked rule in this case i. When they like a rule they say its custom, when they don‘t they say it‘s not custom 7. Lotus Case held the same thing as the North Sea cases but in regard to prosecuting public officials. There is not enough practice to show there was a belief in a legal obligation D. Asylum Case (Columbia v. Peru ICJ 1950)—Persistent Objector Rule – Preventing CIL from becoming applicable to a state (see rule below) 1. FACTS: Coup d‘etat was tried and failed in Peru. So the leader of the coup Haya de la Torre sought asylum in the Columbian embassy in Peru‘s capital. The Peruvian army surrounded the embassy (cannot go inside the embassy under IL). Talks betwn Columbia and Peru, where Peru requests that Torre be surrendered b/c he‘s responsible for the crimes of murder associated w/ the revolt. Columbia says Torre is a political refugee and will not surrender someone who is being sought by you for political reasons. They were at a standstill so they brought the matter to the ICJ. 2. 2 ISSUES: (1) Is there a diplomatic asylum practice in Latin American – was there a regional custom and (2) Who has the right to ―qualify‖ (ie. Characterize an offense as political for the purposes of asylum? 3. Diplomatic v. Territorial Asylum: NOTE that asylum cannot be given to common criminals for common crimes; rather only political offenses or persecution for political acts (even if deemed criminal under the criminal code) can lead to granting of asylum. a. Territorial asylum  Country receives political refugees who are being persecuted in their own countries (U.S. one of the main countries that receives political refugees). The refugee is granted asylum in the receiving state. It is a well-recognized form of asylum b. Diplomatic asylum  Asylum granted by embassies. The refugee is granted asylum and is given shelter in the embassy of the receiving state in the territory of the asylum seeker‘s state. i. It is a practice that only exists in Latin American (it is a regional custom). ii. Considered an unfriendly act by other countries to engage in diplomatic immunity. 4. Issue 1: Regional custom? a. For the sake of argument the court agreed there was a regional custom of diplomatic asylum. 5. Issue 2: Political nature of offense?—who has the right to ―qualify‖ (i.e. characterize) an offense as political for purposes of asylum? i. Court found there was Regional Customary Law—there was a regional custom allowing for Political (Diplomatic) Asylum. Court assumes that diplomatic asylum can only be exercised w/ respect to a political offender. ii. Rule: The granting state—that is the state who gives the refugee asylum—decides what political crime is worthy of asylum. b. Who decides if they are a political offender? The state receiving the person or the state asking for the person‘s return? 7 i. Ct. avoids answering this b/c they do not want to be enmeshed in difficult and unmanageable factual research to determine what happened in Peru. 6. Peru had been a ―persistent objector‖ so diplomatic asylum did not apply a. Peru has persistently objected to the unilateral characterization of whether an offense was political. b. It was not an objection to the diplomatic asylum practice but the more narrow issue of objecting to the rule that the state granting the asylum determined if the offense was political. c. Persistent Objector Rule – In the development of any customary rule if a state persistently objects to the rule from the beginning (it must object at the inception of the practice), it prevents the application of the rule to itself. The Rule only pre-empts the application of the practice to that objecting state; it does NOT prevent the practice from coming into operation. Note that if a significant number of states persistently object from the beginning, then they may prevent the rule from forming into customary international law. i. So if there is a CIL rule and the US disagrees with that rule, then they have to object to the rule if they do not want it to apply to them. ii. In the Peru/Columbia case all Peru achieved was that the rule did not apply to Peru. iii. However, persistent objectors can be persuasive enough that they actually prevent the rule from becoming law (based on actual # of objections). d. There are certain rules in international law that states CANNOT opt-out of either by treaty or persistent objection. For Example, Genocide. i. RECAP: (a) If there are general practices of states and no one objects then when the rule crystallizes the states are bound by that rule. (1) If a significant number of states object to the rule then it kills the rule. (b) If a state persistently objects then the rule will NOT be applied to the to the objecting state (c) If the rule is Ius Cogens (Peremptory rule of international law) then a state CANNOT object and thus must follow the rule. E. Legality of Nuclear Weapons Advisory Opinion 1. FACTS: The UNGA requested an advisory opinion for the ICJ (also has advisory jurisdiction) 2. ISSUE: Whether or not the USE of nuclear weapons would be a violation of IL. a. Ultimately, Court concludes that the use of nuclear weapons would be illegal because use of them would violate humanitarian law which prohibits the use of weapons that cannot distinguish between citizens (non-combatants) and combatants. 3. When there is an advisory opinion gov‘ts are invited to give their view (a) Note that Advisory Opinions are NOT binging, BUT have persuasive authority. b. Opponents to NW: Practice of non-utilization  Said there is repeated condemnation of the future use of nuclear weapons by a great deal of states even when they were at war. This repeated condemnation amounts to a practice/custom against the use of nuclear weapons. c. Supporters of NW (US among them): Cold War deterrence  The very facts we have not had a WWIII is b/c of the threat of nuclear weapons. U.S. and Soviet Union did not go to war b/c of the threat of nuclear weapons. Further argue, Mexico and all the other non-nuclear states free rode on the credibility of the use of nuclear weapons. 4. Court: no opinio juris one way or the other 5. UNGA resolutions may sometimes have ―normative value‖ a. Art 10  ―may make recommendations‖ – but not binding legal power; UNGA does not have power to make law. b. It depends on conditions of adoption, content c. But not here, because substantial negative votes and abstentions (despite categorical language). 8 i. Note that abstentions or non-acts can lead to the creation of CIL. d. Recommendations may become law if: i. The vote is unanimous ii. It reflects already existing law e. UNGA resolutions may be a part of the evidence for the existence of customary law. Sometimes it is persuasive but it is not authoritative. f. Not only the number of votes, but who votes for/against something. 6. The ct rules against the existence of a customary rule. a. The emergent rule is hampered by continuing tensions between nascent opinio juris for prohibition, one hand, and deterrence, on the other 7. Relevant UN Provisions a. Article 10 i. The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. b. Article 11 i. The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. ii. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. iii. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security. iv. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10. 8. Nuclear Weapons: Judge Schwebel‘s Dissent a. Practice of possession has acquiescence of other states (including on the possibility of their use) b. UNGA resolutions: they can reflect only pre-existing international law c. In this case, the UNGA resolutions show the ―ineffectuality‖ in law formation F. Right of Passage Case—established the concept of ―Bilateral custom‖ 1. Background: a. Goa, Portuguese enclave in India i. Not a complete enclave b/c Goa had access to the sea. ii. When India regained sovereignty from the British; the Indian gov‘t was adamant in recovering Goa. Portuguese refused. b. Right of passage had been established by Britain and Portugal for civilians, but not for armed forces. i. Binding on India, as successor of Britain c. Epilogue: India invaded Goa. India denied Portuguese right of passage. The Portuguese claimed they had a right of passage and took the case to the ICJ. 2. Bilateral custom – Custom that develops only between 2 actors/states. 9 3. Portugal won – ct found right of passage for civilians 4. Exceptions to the Goa Case: Colonialism – When the colonial power imposes treaty obligations on the colony that is not binding on the new state. G. RECAP: 1. Traditional view of CL  Body of rules that develops from behavioral regularities. However, not all repeated behavior develops into a legal rule. It has to be regarded by the states as law or legally binding among the participants. 2. Problem: Every time a state acts they are not necessarily acting out of legal obligation or duty, they are acting out of self-interest. III. TREATIES A. Intro 1. Treaties are one of the oldest types of IL, but law regarding treaties has been codified in the Vienna convention. 2. It is widely recognized that the Vienna Convention codified customary international law.  In reality, the Vienna Convention is binding on all nations. 3. However, VC does not cover all int‘l agreements B. Definition and Typology 1. Vienna Convention Definition: Treaties are agreements among states in written form a. Different from meaning in US Constitution – In US constitution a treaty is subject the advice and consent of the Senate (not Congress) and requires 2/3 of Senate vote in favor. b. In IL ―treaty‖ has a looser meaning – any international agreement in written form 2. One way to look at treaties is the degree of formality a. The more informal the agreement, the more the international courts look for an intent to create legal obligations. b. Whereas the more formal the method, the less likely to find specific intent. c. Less formal agreements do not create obligations if just expressing a wish or desire d. In IL, there is something called soft agreements 3. Treaties ―in due form‖  one of the most formal treaties a. Usually require signature plus ratification (or accession) i. Accession – joining after ii. Ratification confirms the signature b. In between the signature and ratification most nation‘s Constitutions require internal approval of the treaty. 4. Executive Agreements: only signature a. International agreements that are valid upon signature b. Executive agreements are Not treaties under US Constitution c. But treaty under Vienna Convention – Vienna Convention says a treaty shall be valid upon signature if that is what the treaty specifies. 5. Exchange of Letters a. Well established diplomatic procedure b. Similar to an executive agreement. c. Note that an Exchange of Letters is a Treaty under the Vienna Convention definition of treaty. 6. Memorandum of Understanding – considered a treaty under international law a. When both countries reach and agreement they produce a document. b. They may be signed or unsigned c. Unsigned ones do not lose their validity 7. Joint Communiqué a. It is a document that is usually given to the press/media 10 b. The document MAY be treated as a treaty under the Vienna Convention BUT there may be provisions that are not considered binding on the parties in light of the language used—the language may be inspirational language. To be binding there must be definite, mandatory language. C. Stages in Treaty-Making 1. Negotiation – 1st step a. The negotiations are conducted by people who represent the state. It is an international act. b. Plenary powers – the power that representatives have to negotiate treaties. Some officials are deemed to have plenary power. nd 2. 2 step--Adoption of text (in multilateral treaties) a. In a multilateral treaty the conference has to adopt the text (by a particular # or by consensus) i. Basically, a state has to adopt the text for the treaty to apply to it; there is no majority rule that forces the text upon a state. b. That adoption of the text has no legal value – does not bind anyone. c. It is an international act. 3. 3rd Step--Signature a. Then, the convention is open for signature. It is an international act. i. NOTE that after signature, but before ratification, a state cannot frustrate the object and purpose of the treaty. b. For these conventions, signature does not mean consent yet. i. Signature (signing the treaty) does NOT express the consent to be bound by the treaty. Rather it is a beginning of a whole new process—namely the Constitutional approval by the states. c. Every country has a different procedure for internal approval 4. 4th step--Constitutional approval – it is an Internal act does by the State! a. There must be internal approval or rejection of the treaty and it is a matter of the State‘s Constitutional law on how to approve the treaty i. In U.S., under Article 2 of the Constitution internal approval is done through Senate ―advice and consent‖ (a) Advice and Consent given by Senate does NOT ratify the treaty. Rather advice and consent gives the President the Senate‘s consent to be bound by the treaty. th 5. 5 step—Ratification a. It is an international act b. In USA the President Ratifies the treaty and this signifies to the world our consent to be bound by the terms of the treaty. The President has the discretion to ratify the treaty. 6. 6th step--One more step  Treaty enters into Force upon a certain # of ratifications for a multilateral treaty D. Oral Agreements and Unilateral Commitments 1. The Vienna Convention says the fact that VC concerns written agreements; does not make oral agreements invalid 2. Eastern Greenland – Oral Agreement a. Oral agreement or unilateral declaration? b. FACTS: A dispute btwn Denmark and Norway concerning the sovereignty of the settlement part of Greenland. Both Norway and Denmark have claims over the same land, and they could not agree so they took it to court. c. The context: response to an official question by the Danish Ambassador during negotiation i. Ihlen, the foreign minister of Norway responded to a question by the Danish ambassador saying,  Norway will make no objections to Danish claim in Greenland (Ihlen Declaration) 11 ii. Considering the Ihlen declaration as a response to an official question and Denmark‘s acceptance of this statement, this was an oral agreement. d. Ct said: Denmark WON – b/c this was an oral agreement i. The court required acceptance. Why is this important? (a) Goes deep into IL, a State cannot unilaterally bind itself. 3. Nuclear Test Cases (2 Twin Cases brought against France by NZ and Australia)  Unilateral statement a. FACTS: France detonated nuclear devices close to French Polynesia. NZ and Australia were worried about this and brought France to court to declare the tests violated IL. The court did not reach the merits. While the case was being heard, the French president appeared on TV saying it decided to discontinue the nuclear tests. b. The ct said b/c France decided to discontinue the tests the case is moot. c. So France claimed victory over  Australia and NZ d. The basis of the decision  The TV statement by the French president was a statement that created an obligation. e. Whenever the president makes a statement to the world, then that statement could amount to a legal obligation. f. Distinguish: This differs from the Eastern Greenland case where the statement made by the Norwegian foreign minister was made to another party in response to a question. g. Standard for unilateral statement: who the person is, the person‘s authority, was there intent, the forum, the content. Is it reasonable to hold this statement against this person? Statements made against your interest have more weight. h. RULE: A unilateral statement by ANY government is binding on that government even if it has not signed the treaty or has not ratified the treaty. i. For example, the USA President could say that the USA wants to be bound by only 2/3 of the terms of the treaty and USA will be bound to those terms regardless of whether the treaty was signed or ratified by the USA. E. Oral Agreement and Unilateral Commitments II 1. Nicaragua a. A communication by the Junta of National Reconstruction of Nicaragua to the Organization of American states in which the Junta listed its objectives including free elections. b. ICJ found Promise of free election was not an oral agreement nor unilateral commitment c. Either political statement or promise to Nicaraguan people (political pledge) d. Unable to find anything in the communication intending for a legal undertaking to exist. e. U.S. lacked ―standing‖ anyway 2. Burkina Faso-Mali Border Dispute—Unilateral Statements and the Importance of Intent a. ISSUE: Statement of Mali‘s head of state – not made during negotiations or talks between 2 parties b. A unilateral statement can be binding as seen in the Nuclear Test cases when that is the intent of the state. i. There must be a recipient of the unilateral communication c. Unlike Greenland, this case lacks a recipient – Even greater caution when not directed toward a recipient. d. Is this properly distinguished from Nuclear Tests? i. Nuclear – Went on TV to specifically address an issue. While here it was an answer to a series of interview statements. ii. Nuclear – B/C the nuclear test case concerned the whole world and entering into negotiated solutions w/ all the people involved would have jeopardized France‘s contention that its conduct was lawful – France intended for this to be a unilateral act w/ legal obligations. 12 iii. On the other hand, there was nothing hindering the parties in this case (Burkina Faso/Mali) from manifesting an intention to accept the binding character of the conclusions of the OAU Mediation commission by the normal method, a formal agreement. Since there was no agreement concluded by the parties, no reason to interpret the declaration by Mali‘s head of state as a unilateral act w/ legal implications. F. Informal Treaties 1. Topic: Under what circumstances are informal written agreements considered treaties. It would be absurd to consider all written documents treaties, but it is true that the Vienna Convention is not completely concerned w/ formality. a. Courts have consistently been cautious when the document itself says it is not a statement of binding obligation. 2. Qatar-Bahrain – Official Minutes of Treaty Negotiation created a Treaty a. Background: ICJ case dealing w/ a boundary dispute. b. ISSUE: Whether the minutes of the official negotiation of a treaty were in themselves a treaty? (Legal force of the minutes of official negotiations). i. The minutes were a Record of consultations with presence of third party ii. There had been a previous exchange of letters. Under that exchange of letters they actually carried out negotiations related to boundaries. iii. The issue did not have to do w/ the border dispute but w/ the submission of the case to the ct. iv. Bahrain claimed that in negotiation, Qatar had agreed to submit its case to the court. v. Qatar accepts Bahrain‘s formula for submitting the case to the Court. c. It is not clear whether the minutes reaffirm prior obligations or create fresh ones? i. Court says that the minutes are NOT fresh obligations BUT rather the minutes are authoritative interpretations of the terms of the treaty. ii. The court says it is a treaty but it is also tied to the prior 1987 exchange of letters. d. Dissent: Neither the 1987 exchange of letters nor the 1990 minutes were treaties i. The letters were not simultaneous ii. The foreign minister of Bahrain signed the minutes w/o thinking they were a legally binding international agreement. G. Ways to Express Consent to a Treaty 1. Treaties in which the state has duly expressed its consent are binding. 2. Ratification a. The traditional method of expressing consent. It is an international act. b. Different from ―advice and consent‖  the Senate does not ratify anything, but authorizes the President to ratify. 3. Signature a. Some treaties are not valid upon signature. b. But lets concentrate on formal treaties. i. Signatures mark the adoption of text, then they require ratification. ii. What is the obligation of a state after they sign a treaty? (a) Formalistic view – Signature carries w/ it a special obligations not to frustrate the object and purpose of the treaty. (b) ―object and purpose‖ – phrase that appears many times in the VC (c) Ex. The Law of the Sea Convention has a provision that provided for the exploitation of the deep sea bed for the benefit of developing nations. Many states agreed w/ the ―object and purpose‖ of that – Special attention should be given to developing countries. However, the U.S. did not like the particular method that was being used to achieve this goal. Therefore, the U.S. and other countries rejected regulation, but kept signature. They were not ratifying the convention b/c they objected to the way this 13 provision was being carried out. But they complied w/ the ―object and purpose‖ by creating a special fund to help developing countries. (d) The obligation that a signatory state has exists until the state announces that does not intend to become a party to the treaty. c. RULE: Special obligation not to frustrate object and purpose of treaty until the state announces it does not intend to become a party (art. 18) d. Kyoto Protocol and ICC Treaty – 2 hot issues in IL regarding special obligation of signatories i. Kyoto Protocol – Global Warming Treaty – The U.S. has refused to ratify the treaty, but the U.S. signed it. The Bush administration decided not to ratify the treaty b/c it discriminated against the U.S. on a # of issues. The U.S. followed the VC declaring it did not intend to become a party of the treaty. (Art 18) The press has criticized the U.S. It may be bad policy, but U.S. actions are completely legal under IL. The effect of saying it did not intend to become a part is to cancel its signature. For the media to say it denounced its obligations is incorrect b/c the obligations only arise upon ratification. And the special obligation only holds until the state says they are not going to be a party to the treaty. ii. ICC Treaty: Almost the exact same situation as Kyoto. (a) The Clinton admin reluctantly signed the treaty. The Bush has strenuous objection to the treaty. (want immunity for armed forces) W/ respect to the procedure to follow, the critics have said the U.S. has denied its obligations. To avoid the charge that the U.S. is violating the ―object and purpose‖ obligation, we have withdrawn our signature. 4. Accession a. When a state joins a treaty after it is no longer open for signature. b. Signature and ratification take place in one act. 5. Informal Ways – memoranda, etc. H. Interpretation of Treaties 1. Articles 31 and 32, V.C. a. Rigidity of having this in the Convention. There was a debate in creating the VC. Some thought what mattered when interpreting a treaty was the intent of the parties. Others said what mattered was the language b/c the intent might change over time, and the reasons states enter into treaties are multifarious. Others advocated a purpose interpretation. 2. In the end – 2 rules prevailed a. Rule One – Art 31 i. ―Ordinary meaning…‖ (a) Natural meaning of the words sued in the treaties. A party may NOT invoke a nonordinary meaning of a word, that is, a party cannot invoke a technical meaning of a word. (1) Good Faith RULE: treaty must be interpreted in good faith with regard to the ordinary meaning of the words used. ii. ―in context…‖ (a) What is context? (1) Art 31, §2 -- Includes the preamble, annexes, and other articles of the treaty (2) Art 31, §2(a) -- Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty. (3) Art 31, §2(b) -- Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty iii. ―in light of the object and purpose of the treaty…‖ (a) Choose an interpretation of the treaty that is consistent with its object and purpose 14 iv. Taken into account together w/ the context: (a) Subsequent agreements on same matter are part of interpreting treaties (b) Subsequent practice on implementing treaty is also part of interpreting treaties. If subsequent practice is uncontested, then the subsequent practice controls even if the treaty is interpreted in a way different from its object and purpose or ordinary meaning. (c) Relevant rules of IL b. Rule Two (only if Rule One fails) – Art 32 i. If Rule One leaves the result ambiguous or absurd; ii. Then, look at Preparatory works (treaty history) and the circumstances of conclusion c. Note that determining intent is not important because it is not in rule 1 or 2. I. Golder Case 1. FACTS: Golder was an inmate in a British prison, who was disciplined for participating in a riot. Golder wanted to contact an attorney so he could sue the warden for wrongly identifying him as participating in the riot. An administrative rule limited inmate access to attorneys. Appealed to the ECHR. 2. Golder‘s Argumnet: Art 6 of the European Convention on Human Rights implies that Golder should have the right of access to courts, even though the Convention does not specifically grant that right of access. a. Art 6 – said ―everyone is entitled to a fair and public hearing w/in a reasonable time by an independent an impartial tribunal established by law.‖ 3. Application of Rule One (V.C. Article 31) yields implicit right to access to court a. Techniques of literal interpretation; comparison of equally authentic texts (French and English version) b. Importance of ―object and purpose‖ contained in Preamble (which is also ―context‖)  To respect democratic values as a whole. c. Ct. said Art VI did not make sense unless individuals had the right to access courts. d. Therefore, Rule Two does not come into play i. Why the UK argued this case vigorously – the treaty history shows the omission of the right of access was on purpose, and in the UK it was specifically made in reference to inmate access. However, the court does not look at the treaty history. IV. Reservations and Ius Cogens A. Definition of Reservation in VC Art 2(d) 1. ―Reservation‖ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.‖ a. Reservations occur only in multi-lateral treaties i. NOTE: (a) Understandings – interpretive statements that clarify or elaborate, rather than change, the provisions of an agreement and that are deemed to be consistent with the obligations imposed by the agreement (b) Declarations – statements of purpose, policy, or position related to matters raised by the treaty in question but not altering or limiting any of its provisions. (softer than a understanding) 2. Important parts of a RESERVATION: a. Unilateral Statement b. And refers to provisions instead of articles, b/c provisions are smaller (want to preserve as much of the original intent of the treaty as possible) 3. NOTE WELL that: 15 a. A reservation can be made at any time. b. Reservations are reciprocal; thus, one state can invoke another state‘s reservation against that state. In other words, reservations can be invoked against the reserving state. c. The Reservations change the obligations flowing from the terms of the treaty to the parties having the reservation. So the reservations allow the parties to create ―mini-regimes‖ between each other. B. 3 Permitted Reservations – Art. 19 1. Those expressly permitted by the treaty a. Debate about when a treaty expressly permits reservations to certain provisions, but is silent about reservations to other provisions – 2 positions i. If it expressly permits some reservations, then reservations are not permitted to other provisions. ii. Others say reservations are allowed to other provisions if they comply w/ the ―object and purpose‖ of the treaty. 2. Those that are not among those expressly prohibited by the treaty a. A treaty might not allow reservations if most of the provisions are a part of quid-pro-quo (an equal exchange) negotiations. Reservations would frustrate the negotiations. 3. Otherwise, those that do not violate the object and purpose of the treaty. a. This is the DEFAULT RULE C. Object and Purpose Analysis 1. The parties‘ purpose v. the common purpose i. States cannot make any reservations they want to a treaty. (a) RULE: V.C. takes the position that a reservation that is inconsistent with the object and purpose of a treaty is invalid. b. What was mutually beneficial about the treaty? c. Despite different intentions, what did the parties have in common? 2. Object and purpose has to be different from treaty obligations a. Typical example: a reservation to a clause providing for method of dispute settlement (e.g. referral to ICJ) would not violate the object and purpose of the treaty. D. Belilos Case – distinction between Reservation and Interpretive Declaration 1. FACTS: Belilos was a political activist in Switzerland who was arrested at a riot by Swiss police. She was prosecuted in municipal court. She sued b/c she argued her fair trial rights were violated under Art. 6 of the Euro Conv HR which requires impartiality and the independence of the courts. She said the municipal court could not prosecute her, b/c it was a part of the police dept. that arrested her. 2. Switzerland argued that it was not a violation of Art VI, b/c Switzerland made an interpretive declaration to Art VI: a. Said Swiss considered the guarantee of fair trial in Art 6 as intended solely to ensure ultimate control by the judiciary over the acts or decisions of the public authorities relating to rights or obligations of those charged. 3. FIRST ISSUE: Is this a reservation or interpretive declarations a. Art. 2(d) – says a ―reservation means a unilateral statement, however phrased or named‖ b. Distinction between a reservation and an interpretive declaration i. If it is a reservation: it has legal effect (provision inapplicable to reserving state). The idea is that if a state files a reservation it changes the terms of the treaty in application to itself. ii. If it is an interpretive declaration: it does not have legal. (a) Interpretive declaration is just an announcement of how a gov‘t interprets a particular provision. It is non-binding and does not require other gov‘ts to object. A court can 16 interpret a treaty however it wants (even different from your interpretive declaration) and apply that interpretation to the party. c. The court says: we don‘t know which one it is, but just in case, we will examine its validity under art 64 of the European Convention on Human Rights. i. Art 64 of ECHR prohibits reservations of a general character. (a) Ct. says ―general character‖ means vague (b) In this case, the Swiss statement does not describe what type of court proceedings are covered. 4. RESULT: This particular reservation was prohibited by the treaty because it was ―of a general character.‖ a. Holding: Basically court found a reservation and then struck it down because it was too vague. 5. The distinction between reservation and interpretive declaration was not decided by the court – There is some support in the VC that the 2 are equivalent. E. Acceptance and Objections 1. Acceptance: Express or Implied (12 months) a. 2 ways of accepting a reservation – Implied or Express i. Implied – if the state says nothing in 12 mos., then it is deemed accepted. (a) Burden on State Dept. to make sure they object ii. Express b. Effect of Acceptance: Reserving and accepting states become parties to the treaty as modified by the reservation. i. A multilateral treaty becomes modified through webs of parties that make and accept/object to reservations. ii. Art 20(2): Some treaties may require acceptance of reservations by all parties (a) ―When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.‖ iii. Effect of a reservation works both ways. The reserving part also loses the right to enforce the reserved treaty provision. 2. Objections: a. 2 ways state can Object i. Weak: Even thought the objecting state says it does not agree to the reservation, the objecting state says it wants the rest of the treaty to be in force between it and the reserving state. (a) Effect: the provision targeted by the reservation does not apply as between the reserving and objecting state. (1) The issue in that provision is regulated by whatever law that existed prior to the treaty (default law) – could be customary law, or maybe another treaty in force. ii. Strong: The objecting state says it does not want the rest of the treaty to be in force between it and the reserving state. 3. When a court has jurisdiction, it alone determines the validity of reservation, independently of the system of objections (as in Belilos) – So the objection/acceptance part of VC does not apply when the treaty provides for a court to interpret the validity of reservations. F. Some Questions 1. Can states accept reservations made by other parties that are prohibited by the treaty? a. For example, if a state believes a reservation violates the object and purpose of the treaty, can it ―cure‖ it by its acceptance? What if some states accept it and others object to it? 17 i. Theory #1: Reservations are either valid or invalid. If they are prohibited by the treaty then they are invalid. ii. Theory #2: If a state accepts a reservation then the treaty becomes law btwn the parties, even is someone believes it is against the object and purpose of the treaty. States can agree in their mutual relations to amend a treaty in any way they want, unless it violates ius cogens. iii. Prof. says the answer to the question is NO. It is an invalid reservation. BUT if all parties accept the invalid reservation it MAY be legitimate—this is fanciful and thus there is no answer to this permutation of the question 2. Can states object to a reservation only if they think it is prohibited by the treaty (e.g., it violates the object and purpose of the treaty)? a. No, states can object to a reservation for any reason. An objection does not have to be based on a legal reason. The grounds for objecting are part of the sovereignty of the state. 3. Can states object to reservations permitted by the treaty? a. YES, states can always object to reservations permitted by the treaty. 4. If a reservation is prohibited by the treaty, do state parties need to object? i. NO. A facially invalid reservation would be declared invalid by a court. b. Is there a difference here between reservations expressly prohibited and reservations that allegedly violate the object and purpose of the treaty? i. Yes. There are two types of invalid reservations: (a) Reservations prohibited by a treaty (b) Reservations that violate the object and purpose of the treaty G. Reservations to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) 1. Which ones are permitted and which ones aren‘t? a. Prohibits reservations incompatible with the ―object and purpose‖ b. Why tolerance for reservations: i. Desire for widespread participation in treaties w/ a humanitarian purpose ii. The apprehensiveness of states in joining HR treaties, b/c afraid of the consequences – want to protect its interests 2. Is Egypt explanation convincing? a. Made a reservation about the equality of husband and wife in marriage and divorce. Egypt said this was controlled by the Quran. This is an example, of the object and purpose being something other than the treaty. (Cultural relativism) 3. What is the basis for Germany‘s objection?  Said the reservations were incompatible w/ the object and purpose. a. Court finds that Egypt‘s reservation is NOT against the object and purpose of the treaty. 4. What is the effect of Egypt‘s (and the others‘) reservations vis-à-vis parties other than Germany? Strictly, speaking you do not need object to an invalid reservation, and those that do not object can still complain in court. However, it depends which theory you adopt a. Theory 1 – When a reservation is invalid, its invalidity remains even if the states do not object. b. Theory 2 – Acceptance of the reservation keys in validity of the reservation. c. Theory 3 – Cannot be a valid reservation if it violates the object and purpose. H. U.S. Reservations to Genocide Convention 1. The Convention: Defines the Crime of genocide, authorizes parties of the convention to bring country‘s to court that they think have committed genocide 2. U.S. Reservations a. Reservation 1: Objects to the compulsory jurisdiction of the ICJ  Says specific consent for jurisdiction is required in each case. 18 i. Court gave effect to the reservation when Yugoslavia tried to bring U.S. to court (w/ other NATO allies) concerning Kosovo. Rejected Yugoslavia‘s application ii. However, ad hoc judge Kreca said the court should have jurisdiction. b. Reservation 2: Nothing in the convention authorizes U.S. to conflict w/ the Constitution. 3. Are the first two understandings invalid? a. Understanding 1: ―That the term ‗intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such‘ appearing in Art II means the specific intent to destroy… b. Understanding 2: That the term ‗mental harm‘ in Art II (b) means permanent impairment of mental faculties through drugs, torture or similar techniques. i. Paust-Kreca: Yes – says it goes against the ―object and purpose‖ of the treaty b/c it is against ius cogens. ii. Case law (e.g., Akayesu case, see section 9): No 4. Judge Kreca: Reservations and understandings are inseparable, therefore reservation is invalid as well. Prof. says this is a BAD argument—do not use it on Exam 5. Objections by other parties a. Only to reservations, not to understandings or interpretive declarations. Why did the other countries not object to the understandings like Kreca. One of 2 reasons: i. They might agree w/ the understandings ii. Or they might think it is not necessary to object b/c the understandings do not have int‘l standing anyway. b. Objections to Reservation 1 – Jurisdictional reservation i. Greece  incompatible w/ the Convention ii. Mexico  violates the object and purpose; took the invalid from the beginning position iii. Netherlands  so essential to the ―object and purpose‖ of the treaty do not consider U.S. a party to the Convention. iv. UK  consistently will not except reservations to Art IX. (does not say convention is not in force though) c. Objections to Reservation 2 – talks about the constitution i. Denmark, Estonia, Finland, Ireland, Netherlands  Cannot accept b/c violates Art 27 of the VC which says – no party may invoke the provisions of its domestic law as justification for failure to perform a treaty. ii. UK, Netherlands, Estonia  Concerned about uncertainty I. Summary of Reservations 1. Invalid ab initio – invalid from the beginning a. Prohibited by treaty b. Contrary to Object & Purpose c. If Reservation is invalid, it does not have to be objected to d. NOTE that reservations that are NOT invalid ab initio, the other parties to the treaty must object to those reservations. 2. Acceptance a. Treaty in force as amended by Reservation 3. Objection a. Strong: treaty not in force b. Weak: treaty in force, but provision to which Reservation refers not applicable between parties i. Customary law or other treaties still apply c. States can object for any reason 4. When the treaty establishes a court, the system of objections is inapplicable J. Ius Cogens 1. Art 53 – ―Treaties conflicting with a peremptory norm of general international law (ius cogens) 19 A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 2. Ius Cogens is rules of IL that are non-derogable a. Exceeds the laws of treaties – Ius cogens cannot be modified by treaty i. Ius cogens are those rules that protect fundamental values, which cannot be subject to modification by state behavior – represents the infusion of natural law into international law. b. Analogous to ―public policy‖ rules in US contract law i. In most cases, 2 countries can agree to something that departs from IL as long as it does not violate ius cogens. c. Distinguish from standard customary law i. Ius cogens is customary law, but not all customary law is ius cogens ii. Ius cogens is that part of customary law that states cannot depart from d. Ius cogens Cannot be the subject of reservations e. Ius cogens Cannot be modified by unilateral acts i. Ex. U.S. trying to make preventative wars an exception to the prohibition of aggression. 3. Which are they? a. Fundamental human rights i. What does it include? Example of imprescriptibility of crimes against humanity b. Prohibition of aggression c. Prohibition of massive environmental harm K. Some Problems With Article 53 1. Circularity  a norm which does not permit derogation, does not permit derogation – The thing that is to be defined is a part of the definition 2. Incoherence a. ―which can be modified‖ – the very point of having ius cogens is it cannot be modified. b. If a rule is ius cogens, then it cannot be modified by a new customary rule, that‘s the very point of ius cogens! 3. Ius cogens inflation – Everything a state thinks is important, they start calling ius cogens. 4. The only agreement is that the prohibition on aggression is ius cogens but that seems to be changing w/ the preventative war concept. L. TREATY TERMINATION 1. Denunciation or Withdrawal a. Used to be a concept of inherent unilateral withdrawal from a treaty but no longer: b. Art 56, VC says: Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1. 2. Change in Circumstances a. Art 62: Fundamental Change of Circumstances i. 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the 20 parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. ii. According to the ICJ, states can rarely invoke change of circumstances M. Invalidity of Treaties – Art 46-53 1. Art. 46 – Provisions of internal law regarding competence to conclude treaties. a. 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the manner in accordance with normal practice and in good faith. b. Normally, a state may not invoke a provision of their own internal law to justify not implementing a treaty. i. Exception: ―Violation is manifest‖ (objectively evident) and concerns a rule of fundamental importance. Advice and Consent is not an exception b/c it is not clear to what int‘l agreements it applies. 2. Art 47 – Specific restrictions on authority to express the consent of a State 3. Art 48 – Error 4. Art 49 – Fraud 5. Art 50 – Corruption of a representative of a State a. If the expression of a State's consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty. b. Has to be understood very strictly as meaning bribery. 6. Art 52 – Coercion of a State by the threat or use of force a. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. b. Ex. always cited, Hitler threatening Czechoslovakia c. Denying foreign aid, is not unlawful. N. Effect of Treaties on Third Party States – Art 34-37 1. Treaties do not create either obligations or rights for a third State w/o its consent (Art 34). V. The World Court – The International Court of Justice (ICJ) A. International dispute resolution 1. Many different int‘l courts – regional courts, courts about specific issues (trade), international criminal court, ad hoc courts. 2. Focus on the World Court 21 a. World Court is not its official name  International Court of Justice; but we refer to it as the World Court b/c we also want to refer to its predecessor PCIJ, b. PCIJ was the first court of this kind created by the Treaty of Versailles and lasted until 1945. c. Everyone considers that ICJ to come from PCIJ, so there is continuity btwn the 2 courts, sharing the same jurisprudence. B. Creation/Relevant UN Provisions 1. ICJ established by the UN Charter (ICJ Statute, Art I) a. ICJ jurisdiction is consensual—parties have to agree to the ICJ‘s jurisdiction 2. ―Shall be the principal judicial organ of the United Nations‖ (UN Charter, Art 92)  Teson says misleading 3. ―Each Member of the United Nations undertakes to comply w/ the decision of the ICJ in any case which it is a party.‖ (UN Charter, Art 94(1)). Basically decision of the ICJ are legally binding on UN members that were parties to the case 4. If a state fails to comply w/ a decision, can take it to the Security Council for enforcement (UN Charter, Art 94(2)) a. Question of interpretation whether Art 94 authorizes the use of force. 5. The UN Charter does not prevent parties from seeking resolution of their agreements by other tribunals (UN C Art 95). Basically art. 95 embodies the principle that a state has a choice of means in resolving a dispute 6. Advisory Opinion (UN C, Art 96) a. The UN GA or the UN SC may request the ICJ to give an advisory opinion on any legal question b. Other organs of the UN and specialized agencies, which may be authorized by the GA, may request Advisory Opinion from the ICJ on legal questions in the scope of their activities. C. Composition 1. 15 judges, not two of same nationality (ICJ Art 3) 2. Representing main legal systems and civilizations a. ICJ Art 9 – not only take into account the qualifications of the individuals, but that the body as a whole should represent the main legal systems and civilizations. b. Ie. There should be people from the common law system, civil law system (Continental Europe and Latin America), the traditional African system, the Eastern system, Islam as well. c. However, in practice that has not been followed. i. By tradition, from the beginning of the World Court in 1919 there has been one judge from each of the permanent members of the Security Council (US, Russia, China, England, France) ii. Also even though Art 9 talks about legal systems, there are seats reserved for regions (2 Latin American seats, 1 Eastern European Seat, 2 African seats, and so on) iii. Region and even politics play a role. For ex. Israel is a part of the western block, not the middle eastern block 3. Not necessarily lawyers (ICJ Art 2) a. But they have to be qualified for the highest court in their country or jurisconsults or recognized IL competence. 4. High moral character (ICJ Art 2) – does not appear to be a demanding standard 5. Complicated nomination system (national groups) (ICJ Art 4(2)) a. Done regionally in groups of 5 6. Elected by two separate votes of the UNGA and UNSC (ICJ Art 8) a. Absolute Majority Vote (9 votes) and no veto (Art 10) 7. Problem of independence a. Posner did a study of impartiality that showed the judges generally voted in favor of their national group 22 b. Different countries have different notions of judicial independence. 8. How many judges make a decision a. Complicated b/c they can form chambers and can request a particular chamber (chamber of 5) b. Rule: If there is a case before the court, where one of the parties does not have a judge of his own nationality, can ask for the appointment of a judge of his nationality. An ad hoc judge has the same prerogative as any other judge. The country does not necessarily have to appoint an ad hoc judge of its own nationality. c. So could be 15, 16, 17 judges in plenary case d. If 16 member court, and an 8-8 decision, then double vote of the president. D. Jurisdiction in Contentious Cases 1. Contentious cases are where a state sues another state 2. ONLY States are parties! a. Excludes corporations, individuals, firms, international organizations, including the UN, EU, WHO, and subgroups/substates (i.e. Florida, Kurds, etc.) 3. Article 36 (1) a. Art 36(1) – states can only be brought to court w/ their consent. Art 36 regulates the multifarious forms that consent may take. The court can be quite aggressive in reading consent. b. Compulsory jurisdiction can be had in 3 ways: (1) ad-hoc, (2) bilateral treaty, and (3) unilateral treaty i. Ad-hoc referral – Art 36(1) (a) Referral through a specific agreement (been read expansively); need acceptance to jurisdiction every time there is a dispute. (1) Comprimi: ad-hoc agreement to trust dispute settlement to a third party; it only creates jurisdiction over that particular, specific dispute between the parties; jurisdiction would not apply to any other cases) (b) The Corfu Channel Case: a letter created jurisdiction (shows that acceptance of ICJ jurisdiction need not be formalistic) (1) FACTS: The Albanians had placed land mines in the Channel and a British ship blew up. (2) ISSUE: Whether Albania consented to ICJ jurisdiction – There was no ad hoc agreement. (3) England argued: The Security Council made a mandatory recommendation that they go to ICJ. (4) Ct said it did not have to address the Security Council issue b/c Albania agreed to consent to jurisdiction in a letter  That was enough. (5) View accepted by subsequent practice  The Security Council cannot create a mandatory recommendation. ii. Referral in bilateral treaties – 2 parties agree disputes will be decided by ICJ (a) E.g. economic treaties (b) Usually the treaty will contain a clause allowing one party to sue another party under the treaty in the ICJ. This acceptance to jurisdiction is for all cases arising under the treaty (this is different from ad-hoc) iii. Referral in multilateral treaties (a) Some of the new treaties have a specific referral to the court. (Vienna convention, Genocide Convention) (b) Sometimes a referral in a treaty refers to a certain type of dispute. (c) Can always opt out of this jurisdiction through a reservation. c. Matters especially provided for in the UN Charter? i. The UN Charter does not provide for compulsory referral to the ICJ 23 ii. Art 35 to UN Charter says legal disputes should be referred to ICJ  This is a recommendation, not a referral iii. What if a government accepts the recommendation of the SC under Article 36? Corfu Channel E. The Optional Clause—delayed consent to jurisdiction 1. Article 36 (2) – a unilateral declaration of a state that they accept the jurisdiction of the court. (The U.S. at the moment does not have an optional clause as a result of the Nicaragua negotiation) 2. Conditional or Unconditional a. Substantive restrictions b. Temporal restrictions i. E.g. state accepts jurisdiction for next five years and collapses unless renewed c. Procedural restrictions i. E.g. UK will not have court hear cases that involve British Commonwealths 3. Reciprocity a. Principle of Reciprocity: Every condition that a country attached to its reservations can be raised by any party; thus any party can invoke the other parties‘ reservations where there is a dispute between the two parties. Only the party to the dispute can invoke it against the other party in the suit. The parties have to be parties to the treaty in order to invoke there reservation of one against the other. b. Art 36(3) – The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time . c. The Norwegian Loans Case – 1st issue of the optional clause i. FACTS: France brought a case against Norway about some Norwegian public bonds held by French citizens. France thought the rights of the French bond holders were being violated by Norway. ii. Norway responded say the court should not take the case b/c of France‘s optional clause had a phrase that said, ―France excludes from the jurisdiction of the court all disputes that fall under France‘s domestic jurisdiction as determined by France. (self-judging component). Norway said b/c France has this self-judging component, Norway could also invoke a self-judging component and say the bonds dealt w/ domestic jurisdiction. (a) Self-judging jurisdiction is where the country says that the court does not have jurisdiction over certain cases as decided by that country. (1) Self-Judging declaration had been deemed valid by the ICJ iii. If State A makes a reservation in its optional clause, then all the states are entitled to use the reservation against the reserving state  WHAT THE NORWEGIAN LOANS CASE DECIDED. (a) For ex, say The US filed an optional clause saying it accepted the jurisdiction of the court but excludes all disputes on foreign trade. Then, the US tries to bring a suit against the EU and China concerning trade, but China does not have that clause, then China can invoke the U.S. clause. iv. The problem of the ―self-judging‖ jurisdiction: Judge Lauterpacht’s Concurrence (a) Reservations that allow the reserving state to determine by itself whether the jurisdiction is valid or not is legally invalid. If the ct accepts the validity of the ―selfjudging‖ jurisdiction then any state can disallow any case. (b) Art 36(6) – in case of doubt of jurisdiction the court will decide. d. Some conditions on unilateral declarations that are not subject to reciprocity (sue that substantive conditions are subject to reciprocity) i. If a state puts in a deadline of 10 yrs – not subject to reciprocity 24 4. The ―Minimum Common Denominator‖ Principle – the principle that governs the optional clause system (est. Norwegian Loans Case) a. In the context of jurisdiction, every limitation of a reservation by any country limits the ICJ‘s jurisdiction. Thus, the ICJ has jurisdiction as determined by the combined reservations of each party and that includes the restrictions they each have in each reservation—in other words, the jurisdiction of the court is determined by the overlap between the 2 optional clause declarations between the P and D. b. Hypo: i. The U.S. has an optional clause saying it accepts jurisdiction, except in those cases involving the use of force and maritime boundaries. ii. Argentina says it accepts the jurisdiction except for territorial boundaries and debt. iii. So disagreements that could be heard between these 2 states would be limited by territorial boundaries, debt, use of force and maritime boundaries. F. The Structure of a World Court Decision 1. Jurisdiction -- does not reach the merits a. Always consent of one type or another—this is the main inquiry of the Court b. Need consent of both parties 2. Admissibility – does not reach the merits and NOT the same as jurisdiction a. Matters (other than jurisdiction) that prevent examination of the merits i. Standing (Southwest Africa, 1966)  The court may decide that certain parties lack standing. Alleging S. Africa violated its mandate to administer UN meetings (a) ISSUE: South Africa was supposed to be administering a meeting under the mandate of the LON. Problem, LON no longer existed in 1945, the UN emerged. S. Africa and the UN had not renewed the mandate. In 1966, African counties were claiming that S. Africa was violating its duties under the mandate given in 1919. The problem was that the LON, who gave the mandate no longer existed. Another problem was the court could not hear disputes from entities other than nation-states (no IOs). (b) The Ps devised a plan for (Liberia and Ethiopia) to bring suit against S. Africa, b/c they were the only African states not subject to colonial rule and were therefore a part of the LON and had good standing under the LON. (c) HELD: The court voted 8-8, then w/ a double vote from the president that Liberia did not have standing b/c they did not give the mandate to S. Africa. (d) MISC: (1) Took a long time for the developing countries to overcome their distrust of the ICJ. (2) NOTE: 5 yrs later the court issued an advisory opinion that overruled the decision. But the standing concept is still good law. (3) Still good law that certain parties lack standing (was just wrongly applied in this case) ii. Mootness (Nuclear Tests) – the case lacked legal object (a) Nuclear Test Case – France said it would discontinue the Nuclear Tests, and that was enough for the court not to look at the case on the merits. (b) Court has declined to apply the mootness doctrine in subsequent cases iii. Commitment to other settlement procedures (a) Not a set rule that the Court will not look at the case if there are other settlement procedures. (b) In the Nicaragua case, the dispute had been taken up by another settlement process, but the court said this was irrelevant. iv. Political Question? 25 (a) Argument that there are certain matters that do not belong in the court and cannot be properly addressed by the court. (b) Distinction between legal disputes and non-legal disputes (1) Art 36(2) – ―in all legal disputes‖ language suggests that there is a distinction between disputes that are legal and disputes that are political (2) ICJ has confirmed the distinction exists and has accepted the distinction  Nicaragua – The US argued the case was not a legal dispute, and the court agreed. But guess what – The court has never refused to take a case b/c it was not a legal dispute.  Just because a controversy is politically charged does not mean that it is nonlegal. Iran tried to make the argument about the Iran Hostage situation that this was a political dispute. 3. Merits – solving the legal issue that arises G. The Nicaragua Litigation 1. Background: N was governed by dictators who were overthrown by a rebellion encouraged by the U.S. administration (Carter). Unfortunately, it became clear the new government was aligned with the Soviet Union. Regan came into office and started to support the Nicaraguan contras who were trying to overthrow the government. Nicaragua brought suit against the U.S. for violating international obligations by the use of force against Nicaragua and intervening in Nicaragua affairs through the support of the rebels. There were 2 decisions: Jurisdiction (below); Merits (see later on). 2. Jurisdiction a. Nicaragua said there were 2 basis for jurisdiction: The FCN and the Optional Clause b. FCN Treaty  Friendship Commerce and Navigation Treaty  No jurisdiction i. FCN treaty had a referral clause to the ICJ. ii. However, the U.S. said the treaty did not provide jurisdiction, because this was not a friendship situation; therefore the treaty was not supposed to operate. iii. The court agreed w/ the U.S.  The FCN was not a basis of ICJ in this case. iv. 2 judges did disagree  They said if you had a referral to the court only when you agree, then why is there a referral to the court in the treaty (nullifies it) c. The Optional Clause  found Jurisdiction i. ICJ provision at issue  Art 36(5) – Declarations made under Art 36 of the PCIJ statute which are ―still in force‖ shall be deemed, as between the parties to the present Statute, to be the acceptances of the compulsory jurisdiction of the ICJ for the period which they still have to run in accordance w/ their terms. ii. Nicaragua relied on 1929 declaration by Nicaragua and 1946 declaration by the U.S. to say the ICJ had jurisdiction under the Optional Clause. iii. The problem was w/ the Nicaragua 1929 declaration b/c although Nicaragua signed the PCIJ statute, it never completed the ratification process. Nicaragua‘s ratification had been ―lost at sea‖ and the process was never completed during the time of the PCIJ. iv. N and the US argue over the interpretation of ―still in force.‖ (a) N argued that still in force referred to a time period and N still had the ability to cure the defect in the declaration. (b) US said ―still in force‖ required that there be a binding declaration. (c) Ct accepted N‘s interpretation. v. Ct determined N cured the defect in the declaration by becoming a party to the current ICJ statute. Furthermore, there was subsequent behavior by Nicaragua indicating its 26 acceptance (more controversial). And Nicaragua had been referred to in the Yearbooks as a party to the treaty. 3. Admissibility – a # of reasons the US gave why the ct. should not address the merits. a. Presence of third parties i. US argued the court should not decide the issue b/c the presence of El Salvador was needed b/c Nicaragua was giving money El Salvador. ii. Court: There is a clear dispute between the US and Nicaragua and no 3 rd party is needed b. Matter (use of force) entrusted to UNSC i. Ct rejected this argument. It looked at Art 24 and said just b/c the UNSC is entrusted w/ the use of force did not mean the court could not look at the issue. (a) Argument that Iran used against the U.S., and the U.S. is taking the opposite position now. (b) See also Corfu c. Political question i. Couple places in the statute that says the court is supposed to decide legal disputes but the ct. never refuses to here a dispute because it is aggressive in taking jurisdiction. d. Failure by Nicaragua to exhaust available regional remedies (Contadora process) i. No rule that says other remedies have to be exhausted. H. Third Parties 1. Nicaragua case a. Ct. said El Salvador did not need to be present b/c there was clearly a dispute between the U.S. and Nicaragua. b. Claim disallowed (finding of jurisdiction), even though decision would affect El Salvador‘s rights 2. East Timor case a. Claim allowed (no jurisdiction) b. FACTS: East Timor used to be a Portuguese colony in Indonesia. When Portugal withdrew, Indonesia invaded and there was violent repression. Australia recognized Indonesia‘s invasion of East Timor. Portugal brought a claim against Australia. c. The court found the case was not admissible b/c addressing the merits would involve adjudicating the rights of Indonesia. I. Provisional Measures—Article 41—are binding 1. The LaGrand Case: Court ordered the US to take all measures so that Walter LaGrand would not be executed pending the court‘s decision 2. FACTS: LaGrand brothers were sentenced to death for their crimes in the U.S. While they were in prison found out they had German citizenship (b/c they had a German mother). Germany made a claim for them saying they were entitled to consular assistance under the Vienna Convention on Consular Relations. The ICJ ordered the U.S. to take all measures necessary so that Walter LaGrand would not be executed (the other had already been executed) pending the court‘s decision. 3. The ISSUE: Whether the ICJ provisional measures saying not to execute La Grand were binding. a. Provisional measures are binding i. Art 41 provides that the court may take provisional measures to preserve the rights of either party. b. French v. English text – i. Court says lets go to the VC Art 31, 32 to interpret this ii. They differed, the French text seemed more binding so the court goes to object and purpose c. Object and Purpose – The function of the court would be seriously impaired if the provisions were not binding. 27 4. US in violation: did too little a. Raises another issue about whether the US can tell Arizona not to impose the death penalty. IL does not care about what federalism permits the federal gov‘t to tell the states to do. This is b/c Art 27 of the VC (general principle of IL) that states cannot invoke provisions of their domestic internal law as a pretext for non-performance of a treaty obligation. b. Once a violation has been found the court took an intermediate position that the U.S. has an obligation to review the conviction. i. Other case (Avena and other Mexican nationals) U.S. apologized – that is not enough ii. Extreme position – must reverse the convictions. 5. Judge Buergenthal: Germany acted in bad faith J. Effects of ICJ Jurisdiction in the U.S.: The Sanchez-Llamas case 1. Avena and LeGrand decided that procedural default rule failed to give ―full effect‖ to the Convention, but: 2. ICJ‘s interpretation of the Convention is not binding on U.S. Courts a. Federal Courts have the task of saying what the law is b. ICJ’s decisions are not binding even for the ICJ itself (art. 59, ICJ Stat.) i. However, the ICJ does look to past decisions in order to get guidance and it sometimes follows those past decisions. ii. NOTE: that ICJ decision interpreting treaties are binding on the USA and thus binding on International law 3. The U.N. Charter and ICJ Stat. contemplate only international remedies 4. ICJ‘s decisions are due only ―respectful consideration‖ (this is the standard that the S. Ct. uses)— this was enunciated by the S. Ct. in Breard case, which was factually similar to Avena and LaGrande cases—and Avena and LaGrande came after Breard. 5. In this case, the ICJ‘s view overlooks the importance of the adversarial system of the USA 6. RECALL: 2 legal universes: a. (1) International law: international law is supreme (includes ICJ opinions) b. (2) American law: Constitution is supreme; from the standpoint of American law, it is supreme and thus the S. Ct. or federal courts can decide whether international interpretation of USA law deserves to be followed. One argument made was: The ICJ decisions in Avena and LaGrande did not deserve to be followed because the ICJ used international law to interpret American law. K. ICJ Advisory Jurisdiction  ICJ Stat, Art 65(1); UN Charter Art 96 1. UN C, Art 96 a. The UN GA or the UN SC may request the ICJ to give an advisory opinion on any legal question b. Other organs of the UN and specialized agencies, which may be authorized by the GA, may request Advisory Opinion from the ICJ on legal questions in the scope of their activities. 2. ICJ Stat 65(1) – The court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance w/ the Charter of the UN to make such a request. 3. 2 parties may request advisory opinion  according to UN Charter Art 96 – UNSC and the UNGA (some circumstances of other organs of the UN) a. By implication – states may not request advisory opinion b. Can ask any question, provided it‘s a legal question. c. Other UN bodies – may request opinions – w/in the scope of their activities L. Israeli Wall Case 1. Background: Concerns the construction of a wall by Israel in the Occupied Palestinian Territory 2. The UNGA made a resolution (UNGA Res. ES-10/14) requesting an advisory opinion: What are the legal consequences arising from the construction of the wall being built by Israel, the 28 occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions? a. Notice the applicable rules the UNGA is asking the court to apply. b. Before framing its questioning the GA recalled: the 1947 partition, the Geneva conventions, the 2-state solution, including the need to ―live side by side in peace and security.‖ c. Advisory opinion procedure is quite open -- # of states went before the court (even the Palestine Authority was allowed, even though not a state) to give their opinion on what the court should or should not do. 3. 3 Level of Jurisdiction for Advisory Opinion a. Jurisdiction to render the opinion b. Issue of Judicial Propriety c. Then the Merits 4. Jurisdiction to render the decision: a. Art 65 – Yes, there was advisory opinion jurisdiction b/c the correct entity, the UNGA was requesting the advisory opinion. b. Also presented a legal ? – Can Israel build the wall under IL? 5. Israel‘s OBJECTIONS TO ADVISORY JURISDICTION a. Under normal ICJ jurisdiction, everything turns on consent of the parties, but here consent is not necessary. The only issue is whether a party capable party properly requested advisory Jurisdiction. b. Ct. says: i. Request is w/in the UNGA competence. ii. OBJECTION 1: The UNGA exceeded its powers b/c the UNSC is actively engaged in the matter? (1) Art 12(1) restriction: While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. (2) Art 12 limitation only applies to ―recommendations‖ and the request for an AO is not a recommendation [formalistic argument]  Teson thinks is weak. (3) UNSC has primary but not exclusive responsibility for peace and security. (4) UN practice of more UNGA involvement is consistent w/ Art 12 [policy argument]  Teson also thinks is weak b/c should be consistent w/ object and purpose of the charter. iii. OBJECTION II: Request violates Res. 377(a) – Res. Uniting for Peace (1950) (a) Resolution says – UNGA may act if UNSC is paralyzed by veto (b) Objection: the UNSC was never given a chance to request an AO (c) Ct: Veto by a permanent member (US) did prevent adoption of a resolution concerning the wall, but this is irrelevant as the UNGA could have made the request anyway. [formalistic argument] iv. OBJECTION III – Not a legal question (a) Argument that it is not a legal question b/c it is imprecise: Legal consequences for whom? (1) Court rejects the idea it should not render opinion on abstract questions (2) Court says the question can be framed in legal terms (3) The request is valid b/c it asks whether the construction is or is not in breach of IL (but could answer abstract question anyway) (4) Just b/c an issue is political does not bar an Advisory Opinion 29 v. OBJECTION: ―Judicial Propriety‖ (a) Court may refuse to give an opinion if doing so would by judicially improper [Teson thinks a better word is imprudent] (1) Presumption: AO should only be refused for compelling reasons (2) Refusal of AO only occurred once for this reason: Easter Careila  It was an existing dispute.  The AO was being used to circumvent the contentious proceedings b/c one of the parties was not a member of the UN  The party not a member to the UN refused to participate  Therefore, the court refused an AO (3) Ct. tries to distinguish Eastern Carelila from the current case.  However, in this case both parties are willing. (4) The main pt of Eastern Careila is not whether the states are objecting or not. It is the AO procedure should not be used as a replacement for contentious proceedings b/c one of the parties will not be subject to the court. (b) Distinction btwn jurisdiction and judicial propriety???? vi. OBJECTION: Contentious Nature of Metter (a) Bilateral dispute btwn Israel and Palestine (1) Israel has not consented to the court‘s contentious jurisdiction (2) Negotiation contemplated as a method of settlement. (b) The court: no problem, b/c (1) AO is not binding (Teson argues though it does help a party in some way) (2) AO is given to the UN, not the states (Teson says formalistic, of course the UN = the states) (3) Subject-matter is not exclusively bilateral  Distinguish from N. Korea (arguably bilateral)  Middle Eastern problem is not bilateral at all – effects whole group of nations including the UN  Palestine Mandate was administered by the UN (4) AO is to help the UN discharge its function (5) It is unclear what effect the AO will have on negotiations. vii. OTHER OBJECTIONS: (a) Lack of information – The ct should not get involved if it does not have enough information.  Israel gives plenty of info (b) Clean Hands (1) Palestine‘s act of violence should prevent it from seeking a remedy from the court for the situation (wall) resulting from its own wrongdoing. (2) Ct: not pertinent, b/c AO is given to the UN, not to any state or entity. 6. Judge Buergenthal‘s DISSENT: a. Court lacked sufficient factual basis for its sweeping conclusions. b. The fact that Israel did not provide that information cannot be used against Israel, b/c Israel was not legally bound to give that information in AO proceedings. c. Opinion lacked credibility for neglecting Israel‘s self-defense claims d. Says his dissent should not be taken to mean that the building of the wall was lawful. e. Opinion affirms Israel‘s right to exist VI. STATES A. Intro 1. Definition: State – A population ruled by a government in a territory and with constitutional capacity to enter into foreign relations with other governments. 30 a. The definition of ―state‖ is evolving 2. A more subtle issue then the definition of ―state‖ is  When does an entity become a state in IL? B. 4 Basic Requirements of a State (these are necessary—―but-for‖—conditions) 1. Territory a. State has to have a territory i. There are other communities that are not states b/c of lack of territory  Catholic community in England, African-American community in US; the Jews for many centuries were a diaspora (until Israel). b. Some characteristics: i. Boundaries can be disputed (a) Does not have to be fixed territory. (1) I.e. Israel‘s boundaries are constantly being disputed. ii. Territory claimed, in whole or in part, by other states iii. Can be occupied (a) Ex. Iraq  The U.S. had temporary sovereignty given by military occupation, but that sovereignty was exercised on behalf of Iraq 2. Population a. Permanent b. Size irrelevant (e.g. Monaco) c. Important matter that comes back under self-determination  Population does not have any particular ethnic, religious or racial component 3. Government a. Form irrelevant (e.g., republic, monarchy, democratic, authoritarian) b. Effectiveness Rule  Government is considered legitimate if the person/persons exercise effective political control i. Who is in control? Who has command of the armed forces? Who controls the borders? 4. Capacity for international relations (this is integrally related to sovereignty) a. If the state is completely subject to another state, then it will not be a state u nder IL (e.g. Florida) b. But protectorates OK (Liechtenstein) c. States can delegate some sovereignty (e.g. European Union  We still consider France, Italy and Germany sovereign states) C. Some Questions 1. Principle of effectiveness a. Traditionally, the form of government does not matter as long as the gov‘t exercises effective political control. b. The idea still remains, but the harshness of the rule has been tempered. c. Additional Requirements? i. New standards of legitimacy that have to do w/ basic notions of human dignity: (a) Compliance with self-determination (b) Respect for human rights (c) See article 4, UN Charter – regulates admission of UN members, refers to ―peaceloving‖ states 2. Death of states a. Fusion (―merger‖) – e.g. East and West Germany into Germany b. Incorporation to an existing state c. When states break up – e.g. Soviet Union died and many states emerged D. Recognition of States 1. Debate: In order for a state to ―exist‖ does it need to be recognized by the rest of the world 2. Not a duty to recognize 31 a. But obligation to treat an unrecognized entity that fulfills the requirements as a state 3. Prohibition of premature recognition? a. The case of Bosnia – The Soviet Union recognized Bosnia before it was independent from Serbia E. Recognition of Governments 1. [related but distinct practice – the recognition of gov‘ts and the recognition of states – can recognize/not recognize governments w/o affecting the recognition of the state] 2. ISSUE: What should be the policy of recognition? a. The government changes in a state – and customarily the new gov‘t is recognized. b. However, unfortunately change in government comes about in some parts of the world by undemocratic means. 3. Effectiveness or Proper Credentials (e.g., democratic)? a. Increased emphasis that the gov‘t has to be a result of the will of the people. b. Increase pressure for a gov‘t to be lawful it has to be democratic. 4. Tobar-Wilson and Estrada Doctrines a. Tobar-Wilson  (Tobar – Ecuador foreign minister)  developed doctrine that governments that were not democratic should not be recognized. i. USA has adopted this doctrine: USA will not recognize any government that comes to power through unconstitutional means and is not democratic. b. Estrada Doctrine  foreign minister of Mexico  this doctrine never followed i. State practice of recognizing foreign gov‘t is unacceptable interference ii. Said that when a state purports to recognize another gov‘t then they are interfering w/ the foreign government. 5. The Taliban a. Unofficial gov‘t of Afghanistan – The gov‘t was universally criticized b/c of its human rights violations. If failed the proper credentials test, but met the effectiveness test. 6. Taiwan: A ―State‖ issue or a ―government‖ issue? a. China says this is a state issue – Taiwan will forever be a part of China b. The US has taken the position that these are different governments 7. Change of Government: the Principle of Identity of the State. a. General Rule: A change of gov‘t leaves the rights and duties of the state unchanged  remains a state even w/ a change of gov‘t F. International Organizations as subjects of IL 1. IOs are not states 2. But there has been an important development where intergovernmental organization have legal personality – meaning they can enter into treaties. Ie. A treaty btwn the US and EU is valid under IL, the same as if it were signed by 2 sovereign states. 3. Do not confuse IOs w/ NGOs  NGOs do not have international personality; they are players in the internationality community, but they do not have legal personality. G. The status of Individuals 1. Often said that ind‘s have become subjects of IL 2. # of developments a. On one hand, have the tremendous development of the law of human rights, which can be said to grant IL rights to ind‘ls b. IL grants rights to ind‘ls but they are always mediated by the state.  Many times an ind‘l will have a right under IL that is not actionable. c. Ind‘l has also gained prominence in int‘l criminal liability  This has developed b/c there are certain crimes in IL where the perpetrator is not the state, but and ind‘l – war crimes, crimes against humanity, genocide, piracy. 32 d. So in a way IL does concern ind‘ls and not just states as all institutions are created serve some human need and some human values. VII. SELF-DETERMINATION A. The Issue 1. Principle of Self-Determination: if a group has the necessary attributes they can collectively become autonomous or sovereign. a. Covers the principles that govern the right to sovereignty, the right to statehood, but also covers concepts short of statehood like autonomy. The strongest form of self-determination is statehood; however, there are lots of graduations of self-determination. i. E.g. Kosovo was not recognized as a state by the UNGA, but it did recognize its autonomy. 2. When does a group of people have the right to form their own state or enjoy some other form of autonomy? For example, what is FL wanted to become a state. We know for sure that not just anyone can form their own state. Relevant issue: What about Palestine?; What about the Kurds?; Basques in Spain; the Dutch speaking and the French in Belgium a. ―Terra nulla‖ i. Empty land – land that belongs to no one ii. Nowadays, there is not ―Terra nulla‖—it no longer exists b. Merger (e.g. Germany) i. Agreement ii. Annexation – can happen but cannot be done by force c. Secession i. Most common phenomenon ii. Parts of the territory breaking away from the parent state (e.g. Chechnya wants to break away from Russia) B. The Law 1. The UN Charter‘s original understanding  The original understanding of self-determination is very different than the understanding we have now. a. Original understanding i. The big difference is the # of major colonies that used to have colonies ii. The charter has a # of euphemisms for colonies (would not sound good to talk about colonies) so talks about non-autonomous territories iii. Colonialism historically was supported even by progressive people  Idea was gov‘t for their own safety  bringing progress and economic development. b. Art 73  Important for what it says as well as what it does not say i. It does not say that powers of the obligation to grant independence to colonies--―territories whose people have not yet attained a full measure of self-gov‘t‖ ii. No obligation on the part of colonial powers to accord self-determination to these people. c. This limited view – was challenged from the very beginning. i. The most important – Egypt, India – very strong anti-colonialism ii. The movement w/in the UN against the original understanding was successful and was possible by the support of 2 world superpowers (US and Soviet Union). Soviet Union allegedly did not like colonialism b/c of the ideology of Marxism 2. UNGA Res. 1514 (1960)—sometimes called ―The Charter of Self-Determination‖ a. Basic document considered a charter of decolonization—the resolution was critical of colonization b. 9 abstentions (including most of the colonial powers and the US) 3. UN Human Rights Covenants – est. the right of all people to self-determination 4. UN and state practice 33 5. World Court opinions a. Western Sahara b. Israeli Wall C. The Right of Self-Determination 1. Who has the right? a. ―Peoples‖ i. Self Determination is not an individual right; rather, it is a collective right that a collective has against others b. Anthropologists, Sociologists saying that people had to denote a community having some kind of ethnic status. It had to be a group with some cohesiveness to justify giving it independence. This was emphasized by all the rhetoric of anti-colonialism 2. To what? To ―freely‖… [freely does not necessarily mean democratic] a. …determine their political status b. …pursue their economic, social, and cultural development c. ―Freely means the freedom of the collective group; The collective group should determine the political status in a free way—not necessarily by vote—without the interference of others. 3. Lack of development not an obstacle a. Should be implemented immediately b. ―Lack of Development not an obstacle‖ mentioned here in order to reject traditional argument of colonialism which alleged that other peoples were backwards/uncivilized and thus needed to be colonized so they could be civilized. D. Implementation of the Principle of Self Determination 1. Universal adult suffrage a. Who votes? What is the ―voting unit‖? i. E.g. Ireland  Northern Ireland remains a part of the UK. The Irish and some people think it should go back to Ireland. Those counties in Northern Ireland are protestant while, the rest of Ireland is Catholic. Some want to remain w/ the UK to be protected from exploitation by the Catholic majority (unionists). So what to do?? Several referendums have been held in Northern Ireland, but they always result in staying w/ the UK. Ireland argues the referendum should include all of Ireland, not just the northern counties. Britain responds w/ all of Britain should vote too. b. What can they vote on? i. Sometimes can vote for independence ii. Sometimes can vote for autonomy c. Is outcome binding on all? d. Is there a right to exit? 2. Possible outcomes a. Independence b. Merger with existing state c. Some other status i. Puerto Rico  3 groups in PR  (1) Statists – join U.S. as a state; (2) the Independentists; (3) keep protected statues E. Constraints on Self-determination 1. Respect for territorial integrity a. There is a presumption that States should not be broken up. 2. Observance of: a. UN Charter i. Art. 1(2)  Equal rights and self-determination of peoples ii. UN Resolution  legal basis for decolonization and the right to self-determination. ―All Peoples have the right to self-determination [to] freely determine their political status and 34 freely pursue their economic, social and cultural development. Immediate steps should be taken to achieve independence. b. Universal Declaration of Human Rights c. Non-interference on internal affairs of all States d. Respects of sovereign rights of all peoples and their territorial integrity F. Western Sahara (1975 ICJ opinion)—Principle of Self Determination has status of CIL 1. FACTS: Western Sahara territory in Africa that had been a colony of Spain since the 16 th century. When Franco (Spanish dictator) died Spain announced they would withdraw from the territory. Mauritania claimed sovereignty over the territory, so did Morocco and there was a local group in Western Sahara fighting for independence. So the UNGA put to the ct: What is the state of the territory considering all these claims. Self-determination by the Western Saharan group and territorial claims by Mauritania and Morocco. 2. The ct examines at length the territorial title of Morocco and Mauritania. a. The claim by Morocco was that in the Middle Ages, the local tribe leaders in Western Sahara were vassals (subordinate to the Moroccan King); therefore, that showed the territory was a part of Morocco. b. Mauritania made a property claim saying there were titles of land that could be traced back to Mauritania. 3. ISSUE: Does self-determination trump territorial claims? a. Problem both Morocco and Mauritania were under the control of colonial powers – So how would this create self-determination. b. IF claim is anything less than rock solid, then self-determination might trump c. Court found the claims by Morocco and Mauritania were insufficient to prevail over the rights of self-determination (Western Sahara group) d. What happened?  Morocco invaded and they‘re still debating. 4. Principle of self-determination has the status of Customary International Law 5. Issues of territorial title a. How is territorial title by peoples established? 6. Does self-determination trump territorial claims?  If evidence of territorial claims is weak then it does. G. Some Cases 1. Bangladesh  a. When India became independent from the UK it divided into India and Pakistan. B/C of religious reasons (Hindu and Muslims) there is East Pakistan and West Pakistan. Bangladesh in East Pakistan wanted more autonomy. There was a serious internal conflict and West Pakistan was involved in attempted genocide in East Pakistan. Invaded and won the war. As a result, Bangladesh became independent. b. One interpretation  That groups that engage in genocide lose the territorial claim they have over another. 2. East Timor a. Indonesia claims that East Timor, a former Portuguese colony belongs to them. Australia recognizes East Timor‘s claims for self-determination but there is still a conflict. b. The case of East Timor self-determination is stronger b/c it was a colony. 3. Gibraltar a. Located in the southern tip of Spain, but it is British. b. Gibraltar was occupied by the British in the 17 th century (took over from Spain). The Spanish population was gradually replaced by English. Although, Spain wants the territory back the population is in favor of remaining British. c. The issue: Does Spain retain title over a territory taken by another power, if the present population, exercising its right of self-determination says it wants to be British. 35 4. Bosnia and Croatia a. Exercised rights of self-determination w/ the fall of the Soviet Union 5. Falkland Islands a. Remote useless islands in the South Atlantic that belonged to Spain. Argentina became independent of Spain. 1833 British ship came to the islands and put a flag there. The islands used to be the gate to the Magellan straight (which is no unimportant). In 1982, the Argentinians took the island. The British fought back and recovered the island. The people of the islands say they‘re British. UN is reluctant to side w/ the colonial power on the issue. [Interesting b/c not dealing w/ native inhabitants] 6. Palestine a. Wall Opinion, paras. 115, 118, and 122: incidents of self-determination i. In this case the Court takes an expansive view of self determination b. 115 (Report of the Secretary General) – The wall interferes with territorial sovereignty and consequently with the Palestinian right to self-determination. It violates the legal principle prohibiting the acquisition of territory by the use of force. The wall is designed to change the demographic composition of the Occupied Palestinian Territory. The wall was also aimed at reducing the territory which the Palestinian people have self-determination over. c. 118 – (Court) – the Court says the existence of a ―Palestinian people‖ and their right to selfdetermination is no longer an issue.‖ The existence of Palestine has been recognized by Israel. (Looked to various agreements and exchanges between leaders for support) d. 122 – (Court based on UN report) – The wall impeded on Palestinian right to selfdetermination by altering the demographic composition of the Occupied Palestinian territory. Palestinians would reside in communities completely encircled. H. Problems 1. The law is in disarray a. Indeterminacy i. What are peoples? (a) The word ―peoples‖ suggests an ethnic component, but the problem is that it also encompasses people who are multi-lingual and multi-ethnic 2. Incoherence a. Self-determination incompatible with territorial integrity because self-determination in its strongest form results in a group breaking away 3. Unprincipled a. Colonial territories have it, but other dependent territories do not. 4. Principle of effectiveness: The one who has legitimate control over a territory is the one that can achieve effective political control a. Whoever wins in the battlefield b. Anti-law?  The one with the better claim is the one that can kill the other party, but isn‘t the law supposed to be based on rational determination? I. A Fresh Approach 1. The confusion in the notion of group rights  Sometimes group rights are in opposition to individual rights. Problem: is that ―peoples‖ is not defined anywhere. a. What does the idea of self determination mean? i. Have some claims against outsiders of the group. ii. RECALL that ―peoples‖ have a right to self determination; not states or groups. 2. When does a group have the right? a. Nationalist thesis  According to the nationalist thesis certain groups are nations. What makes a group is its ethnic status, and the political boundaries should be drawn according to this ethnic status. Appealing b/c it seems to stand for respecting the culture of people and groups. However, this can be a disaster b/c it results in expelling or exterminating groups 36 VIII. A. B. C. D. that do not belong. Hostile to minorities. Chechnya took this approach saying they were ethnically different from the Russians. b. Soft communitarian thesis (version of the nationalist)  The groups that should have a right to self-determination are those groups that have comprehensive cultures. Sometimes the culture happens to coincide with the state. i. Problem is that it does not account for multi-cultural societies c. Territorialist thesis  What really matters is whether the people have title to the territory. It is a territorial issue and not a question about ethnic status. There are a number of reasons to look at territorial claim. For example, you might want to have a multi-ethnic state. (Ethnic status unimportant) i. It emphasizes territory over ethnic status d. The pure voluntarist thesis  i. Based on Collective Will – any group that gets together should be able to form their own state. (a) Basically, any area of people can become a sovereign state at any time. People have an unlimited right to freely establish whatever political associations they wish to establish. (b) Problem is that it would lead to chaos because any group could secede (not pragmatic) and it ignores the concept of territory e. The liberal thesis – organize in order to redress political or territorial injustice. Constraints on self-determination that come from international humanitarian law. i. Political Injustice  Breaking away for rights of self-determination is not proper unless it is to remedy political injustice, for example, genocide (Bangladesh). (Problem w/ Chechnya is it does no look very democratic). If a group wants so secede from the parent state it is a necessary condition that it guarantees human rights. Self-determination rights are increased if they want to create a democratic state and the parent state is nondemocratic. ii. Territorial injustice  The idea that independence is not needed unless it is to remedy territorial injustice (colony) The United Nations Intro 1. Organization born out of the UN charter 2. The UN Charter is the closes thing we have to an international constitution, but the concept of this being an international constitution should not be carried too far. Basically, it is a representation of the basic norms in the international community. 3. The UN Charter was an agreement reached by the powers that were victorious after WWII. It was signed in San Francisco and was very important to the U.S. administration (FDR and Truman). 4. Article I and Article II form the foundation of the UN Charter. UN Charter 1. It is a treaty 2. It creates a system of collective security 3. It is not a pacifist document because it allows states to use force Preamble of UN Charter 1. Emphasizes individual freedom and material prosperity 2. It states the idea that a system should be set up to prevent wars a. The drafters were concerned with World War NOT civil wars Purposes – Article 1 1. Peace and security – Art 1(1) 37 a. Collective measures i. The states act together to prevent war b. Dispute settlement i. States agree to resolve disputes between them peacefully ii. Purposes in this section predicated on the strong desire to avoid war – prevent future wars by developing a system of collective security. And on the flip-side of collective security the charter also supports dispute resolution. 2. Friendly relations based on (respect for) self-determination – Art 1(2) 3. International cooperation on economic, social, and cultural issues or those humanitarian in nature – Art 1(3) – [notice political is not here] a. Human rights i. Does NOT say that all states have to respect human rights; rather it takes a light approach and basically encourages states to respect human rights b. Fundamental freedoms c. w/o distinction to race, sex, language or religion 4. Forum (for attaining these goals) – ―cheap talk‖ reduction in transaction costs -- Art 1(4) a. UN is a forum where states some together and air their grievances; it reduces transaction costs and asymmetric information between states E. Principles – Article II 1. Sovereign equality – Art 2(1) a. Formal idea – equal before the law; does NOT mean that the states have equal power b. Each sovereign state has the same rights 2. Membership in good faith  Members should fulfill obligations in good faith. -- Art 2(2) 3. Obligation to settle disputes peacefully – Art 2(3) a. No obligation to settle? If you read this provision closely it means you cannot settle a dispute by war. Some have taken the provision as requiring an obligation to settle. For example, if US has a dispute w/ Canada about lumber, some say the US and Canada have to settle. However, the US may prefer to leave the issue unsettled. SUM UP: States have the freedom not to settle. 4. Prohibition on the use of force – (most important provision, discuss later) – Art 2(4) 5. Assistance to UN enforcement action – Refers to system of collective security and special obligation to help; states should not obstruct the achievement of UN goals – Art 2(5) a. Members shall give ―every assistance in any action it takes in accordance w/ the present charter‖ b. Members shall ―refrain from giving assistance to any state against which the UN is taking preventive or enforcement action‖ 6. Consequences on non-members: Ensure that non-members act in accordance w/ these principles as far as may be necessary for the maintenance of international peace and security. – Art 2(6) a. Formalistically, can make the argument that the charter applies to non-members BUT for the most part no obligation on non-members (only obligation for peace and security) – NOT economic, etc. 7. Domestic jurisdiction reservation: Nothing w/in the charter permits the UN ―to intervene in matters that essentially w/in the domestic jurisdiction of any state.‖ -- Art. 2(7) a. ―Intervene‖  Term of art in IL, it means to do something coercively in another country. However, it means something different here – the UN is barred from even discussing a domestic issue. Supposed to respect domestic jurisdiction issues. b. ―Essentially‖  The word essentially is misleading, b/c nothing is essential domestic jurisdiction anymore, because it depends what IL encompasses and the scope is changing. The scope of domestic jurisdiction has shrunk since 1945 with the development of international human rights, international environmental concerns, etc. 38 F. Members – Chapter II, Art 3-6—2 kinds (1) founding members and (2) members who joined after UN created 1. Founding members: Originally signed the UN Charter – Art 3 2. Open to all “peace-loving” states a. To ―peace-loving states who accept the obligations of the charter and are able and willing to carry out these obligations. They can join at any time b. ―peace-loving‖ is a bad choice of words b/c of course a country is not going to say they love war. i. Ex. The U.S. kept N. Korea out of the UN b/c of this. c. This section does not require a particular type of government. 3. Procedure – Art 4(2) a. UNGA upon UNSC recommendation i. So remember veto at SC level, then GA needs 2/3 vote to pass. 4. Suspension and Expulsion (Art 5, and Art 6, respectively) a. Almost no case of this – UN prefers to keep states in the organization b. Suspended from rights or privileges – if preventive or enforcement action has been taken against a member by the UN c. Expulsion – if a member persistently violates the principles of the charter – expelled by the GA upon recommendation of the SC. G. Organs – Chapter III – The UN has 5 organs, and the most important are SC and GA H. The UN General Assembly – Chapter IV – Articles 9-22 1. Composition: all members – Art. 9 a. States represented by governments b. Over 200 members 2. Powers a. Plenary subject-matter jurisdiction (Art 10) i. GA may discuss any matter w/in the scope of the charter (this is a large scope as the charter) which mean the UNGA can discuss any international law issue it desires. ii. Art 12: exception  Cannot make recommendations to issues being discussed/involved in by the Security Council (unless the SC requests) iii. Art 11: way out of this exception: Even though we have a security council, the charter enables the GA to discuss (not recommend) any questions relating to the maintenance of inter-national peace and security brought before it (including the Security Council) 3. Discussion and recommendations, not “decisions” (Art 11) a. What are recommendations? i. GA takes action by making recommendations. In general it cannot make binding decisions. However, it can make recommendations that are not binding. ii. Except: When the GA restates existing law (it is the law that is binding not the recommendation) iii. Except: Can adopt binding decision in matters that are intra-UN (budget, admitting new members) iv. Does not diminish political importance. May not be binding – but could create evidence of customary law… b. Dispute settlement (Art 13(1a)) i. On any kind of dispute (a) Ex. Gibraltar and Spain  Spain did not take it to the SC b/c the British would veto and the Spanish wanted Gibraltar back. So Spain took it to the GA to issue recommendations c. Human rights (Art 13(1b)) d. Budget (Art 17)  consider and approve the budget of the organization 39 4. UNGA Voting (Art. 18,19) a. One state, one vote – Art 18(1) b. No veto power – Art 18(2) c. Important questions: 2/3 majority i. These questions shall include: recommendations w/ respect to the maintenance of international peace and security, the election of the non-permanent members of the SC, the election of members….admission of new members, suspension, expulsion, budget questions. ii. GA may add new important questions by a simple majority. d. All other questions: simple majority – Art 18(3) i. NOTE: Art 19 – member may not be permitted to vote if it is behind in financial obligations. e. Committees, subsidiary organs 5. Some Issues a. Political biases  The UN is not a body that is governed by principles other than individual self-interest. However, when looking at the weight or political power of a GA resolution should look at the unanimity of a recommendation. b. Effectiveness  A lot of money spent and not a lot of results. Still unsure what the function of the GA is. i. Ex. US refused to pay its financial obligations until UN got rid of resolution that said Zionism was racism. Troubling that powerful country got the GA to yield using money. ii. However, the GA did get rid of colonization. I. The UN Security Council – Chapter V 1. Composition – Art 23 a. Total Membership: 15 (Art 23) b. Permanent Members  5 (but has changed) i. 5 members (current)  China, France, Russia, Great Britain, US (a) Russia replaced Soviet Union (b) 1971 – Taiwan replaced by mainland China ii. Permanent members have a right to veto c. Non-permanent Members (10) i. They are elected by the GA on rotating basis ii. Rotate – terms of 2 yrs 2. Powers – Arts. 24-27 a. The primary responsibility on peace and security (Art 24) i. Thus peace and security is the SC‘s subject matter jurisdiction. Consequently, the SC‘s subject matter jurisdiction is more limited than that of the GA‘s b. Only body that can adopt binding decisions  Art 25  Members agree to accept and carry out decisions of the Security Council c. A delegation of sovereignty – notice the focus on a system of collective security ―ensure prompt and effective action‖ (Art 24(1)) 3. UNSC Voting (Art 27) a. One member, one vote b. Required majorities i. Decisions on procedural matters require an affirmative vote of 9 – slightly qualified majority: 9 out of 15 votes. c. The veto power – negative vote by a permanent member blocks a decision i. Only on substantive issues; does NOT apply to procedural matters ii. Decisions will be adopted by an affirmative vote of 9 members including concurring votes of the permanent members. 40 iii. Voting practice – This article has been amended by subsequent practice  The practice has allowed abstention. A negative vote of a permanent member blocks a decision. In practice, permanent members can abstain. If a permanent member abstains, the resolution can pass as long as there are 9 votes. Subsequent practice under a treaty may amend a treaty – like ―course of performance‖ in K law. iv. 2 conditions for adoption of any Resolution: (a) 9 votes in favor (b) Plus no veto by a permanent member 4. Proposals for reform a. One proposal calls for Eliminate right to veto b. Enlarge SC adding more members from developing nations c. Expand permanent members – Different suggestions i. Add new permanent members w/ right to veto ii. Add new permanent members w/o right to veto (most support, Germany and Japan as new members) iii. One representative from Asia (other than China), Latin America and Africa permanently d. Recent summit said SC should act to prevent innocent civilian populations  The summit gave its approval for authorizing humanitarian intervention e. A new organ to be added Human Rights Council (ironically to be chaired by Libya) J. To areas of the charter that regulate what the SC can do – Ch. VI and VII K. Chapter VI – Peaceful Settlement of Disputes 1. Kinds of disputes a. DANGER DISPUTES – disputes ―likely to endanger the maintenance of international peace and security‖ b. General idea – you do not bring all disputes to the SC, and if you do you seek other means of resolution first c. Parties‘ obligations to seek peaceful settlement—article 2(3) i. Idea in IL that states have the right to determine their own means to solve disputes. d. UNSC does NOT deal with trade disputes, environmental disputes, etc. unless the dispute threatens peace and security i. If you have a trade dispute  A state does not bring in to SC, b/c SC power concerns peace and security. e. However, many issues that do not look like peace and security issues are brought to the SC b/c of their impact on security (e.g. Humanitarian concerns) 2. UNSC’s Options a. Do nothing i. The UNSC has NO obligation to do anything b. Investigate (Art. 34) i. Bosnia 3. Recommend methods of settlement (Art 36) a. The ICJ – as a general rule legal disputes should be referred to the ICJ 4. Recommend terms of settlement (Art 37) a. If parties fail to settle by other means as set out by Art 33 i. E.g.: Res. 202 on Arab-Israeli conflict 5. NOTE: Nothing done by SC under Ch VI is binding because they are recommendations. L. Chapter VII – Action w/ Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. Implements the system of UN collective security – AND regulates the enforcement power of the UN. Note that under Chapter VII the SC can adopt binding decisions OR decide to make recommendations 1. Powers 41 2. 3. 4. 5. 6. 7. 8. a. To “determine” the existence of breach of peace, threat to peace, or act of aggression (Art 39) i. Notice 3 categories (a) Does NOT contemplate civil wars and wars between regions of states aligned together ii. Humanitarian intervention  practice has supported the addition of humanitarian intervention b. Art 24(2)  Says the SC shall act in accordance w/ the charter  To many this means that SC can only authorize enforcement measures when there is a breach of peace, so no humanitarian intervention. i. Teson reject his idea b/c the SC has discretion ii. (1) The Security Council does not have unlimited discretion (2) BUT authorizing action for humanitarian intervention is a part and parcel of IL, although not specifically mentioned in the charter c. The cases that Art 39 seems to contemplate is one country committing aggression against another (ex. Iraq invading Kuwait in 1990). However, practice supports the view that the SC may act in cases of humanitarian intervention Recommendations and decisions (Art 39)  decide what measures shall be taken in accordance w/ Art 4 and 42 to maintain/restore peace and security Provisional measures (Art 40) a. To prevent aggravation of the situation the SC may ask the parties to comply w/ provisional measures before making recommendations or decisions. b. BINDING upon the parties Measures NOT involving the use of force (Art 41) a. May include complete or partial interruption of economic relations, interruption of means of communication and severance of diplomatic relations Measures involving the use of force (Art 42) a. Contrary to popular thinking, the UN is not a pacifist document b/c it contemplates the use of force. b. If measures not involving force are inadequate, the SC may take action by air, sea or land forces. The original system and subsequent practice a. Original System  Art 43-50 if read together contemplated the use of force by the UN, by some sort of UN army composed of forces from different members. The idea was that there would be agreement between the members about the use of force. The members would put their armed forces at the disposal of the Security Council and they would be used pursuant to Art 42. However, this has NEVER happened. b. In reality: There are UN peace keeping forces. But this is a different kind of operation (peace keeping forces) they must be there at the consent of the country (CONSENT) and if the government kicks them out they have to leave. The practice has been that the SC authorizes the use of force by its members, not that the members form a UN army. Examples of Chapter VII actions a. First Iraq War b. Korea c. Somalia d. Kurds in Iraq e. Haiti f. Liberia g. E. Timor h. Sierra Leon Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures 42 a. Background: Bosnia War – Serbia resisted Bosnia independence. When the war started the UNSC placed an arms embargo on Bosnia. Lawsuit brought claiming Bosnia was the victim of Genocide and the arms embargo was enabling the genocide by preventing Bosnian Muslims from attaining weapons to protect themselves. The ICC issued some provisional measures in 1993. Judge Lauterpracht issued a separate opinion. b. Said the ICJ should have some power to review the legality of SC action c. The SC power to act is not unlimited. d. In this case, it involves genocide, which qualifies as ius cogens and if the SC facilitated genocide it is unthinkable that the SC wanted that. It is possible genocide was an unfortunate consequence. Said the SC decision may have been contrary to ius cogens and there might be a reason for the ICJ to call it invalid. e. Nothing came out of this opinion b/c the war ended. f. Ct. talks about the Lockerbie Case i. Background: Case involving the Libyan gov‘t blowing up a civil airplane over Scotland, which was a response to US bombing in Libya, in response to Libyan bombing a disco w/ American serviceman present. ii. After the incident the British and Americans were convinced that Libya had something to do w/ the plane. Britain and the U.S. said that Libya had to surrender suspects for trial. iii. Conflict btwn Treaty and SC Resolution (a) Treaty  Montreal Convention – provided for extradition or punishment of people that committed crimes aboard aircraft. Obligation to either extradite them or if they did not, they had the obligation to prosecute them. (b) SC Resolution  Meanwhile, SC adopted a resolution mandating extradition of 2 suspects to either the UK or US. iv. The SC decision prevailed over the treaty. Art 103 of UN Charter says in the event of a conflict between the charter and other treaties, the charter prevails. (does not mean the SC can do anything) M. NOTE: relation between Chapter VII article 42 and 41 measures 1. Chapter 7 Art. 42 measures are appropriate only when chapter 7 Article 41 measures have proven to be ineffective OR likely to be ineffective. Article 41 measures have to come first. However, the problem is some things need to be done immediately. So to wait for article 41 measures to work may in some situations be counterproductive – so sometimes article 42 measures come first. N. N. Korea 1. N. Korea is a party to nonproliferation nuclear treaty (NPT) which said withdrawal is not permitted. N. Korea withdrew in violation of the treaty (this was the legal violation). There was also the political question—that the best thing is that there should be no more nuclear weapons or no more proliferation 2. Resolution 1718 on North Korea, Oct. 14, 2006 a. Determines that test is a ―clear threat to international peace and security‖ b. Acting under Chapter VII and ―taking measures under its Article 41‖ (measures not involving the use of force) c. Condemns nuclear test d. Prohibits further tests e. Demands that NK retract its withdrawal from, and rejoin, the NPT f. Demands suspension of ballistic program g. Decides that NK ―shall abandon all other existing WMD‖ 3. UNSC North Korea Resolution (this is under article 41) a. Imposes embargo (not a comprehensive embargo; rather bans certain things). There is an embargo on: 43 i. Certain conventional weapons ii. All nuclear-related materials iii. Luxury goods b. Prohibits NK to export those items; also it is a prohibition on the rest of the UN members to not to trade these goods to N. Korea. c. Orders all states to freeze nuclear-related funds d. Humanitarian exception e. Creates a Committee to evaluate f. ―Calls upon‖ NK to return to Six-Party talks g. ―Underlines that further decisions will be required, should additional measures be necessary‖ (use of force not authorized). Thus, if this resolution is violated it does not justify the use of force. Rather have to go back to the SC and seek use of force. IX. JURISDICTION A. Overview 1. 3 types of Jurisdiction: a. Prescriptive Jurisdiction: the jurisdiction to Legislate (regulate) things b. Enforcement Jurisdiction: the jurisdiction to enforce c. Judicial Jurisdiction: the jurisdiction to adjudicate. Deals with what kind of jurisdiction can courts within different nations have with regard to the jurisdiction to hear international law disputes 2. The 5 principles that guide the jurisdiction of States a. The territorial principle i. States have a right to regulate what occurs within their territory. States have jurisdiction over persons, events, and things that are located in its territory. (a) Pure or Direct jurisdiction: jurisdiction over persons, events, and things within the territory. (b) Extended Jurisdiction: States have jurisdiction over things that do not take place in the state‘s territory because those things have effect (cause effects) in their jurisdiction, b. The nationality principle i. States have jurisdiction over their nationals (a) States can have jurisdiction over non-nationals ii. Note that when the territorial principle does not suffice or is weak, then the state usually relies on the nationality principle (other principles could be relied upon) c. The protective principle i. Deals with certain particular interests of the state regardless of nationality or locality (territory). Basically, States have jurisdiction over concerns that involve the sovereignty of their state (a) For example: Counterfeit currency – even if it is not supposed to enter US territory d. The passive personality principle i. States have jurisdiction when one of their citizens are the victim of a crime (a) Basically, a State may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime e. The universality principle i. States may prescribe and prosecute ―certain offenses recognized by the community of nations as of universal concern such as piracy, slave trade, attack on or hijacking aircraft, genocide, war crimes and perhaps even acts of terrorism.‖ 44 ii. Today, the principle has been revived as a principle that allegedly gives any state jurisdiction over a short list of serious crimes: (1) war crimes, (2) crimes against humanity, (3) genocide, (4) official systematic torture and (5) crimes of aggression. f. How much weight each of these principles has depends. But generally speaking the territory principle trumps the nationality principle B. The Lotus Case leading case on how the 5 principles interact 1. FACTS: There was a collision on the high seas btwn a Turkish and French ship. The French ship collided against the Turkish ship in such a way that it almost sunk the Turkish ship and there were a number of fatalities. a. In Istanbul, Turkey  Turkish police arrested the French ship captain and charged him w/ negligent manslaughter. b. France said this was not appropriate b/c the events occurred on the high seas and there is a well-established rule about jurisdiction on the high seas. B/C the captain was on board, when he committed the crime, the French said he could only be judged by a French court. c. France and Turkey could not agree so they took it to ICJ predecessor (PICJ). 2. HELD: International Law did not prohibit Turkey from prosecuting the French captain for the collision (manslaughter). 3. Presumption of sovereignty – First thing the ct. does – famous dicta a. The court starts with the RULE that a state may exercise jurisdiction unless international law prohibits it b. The state does not have to prove that it can prosecute, but the state that contests jurisdiction has to show a rule that prohibits it c. Turkey does not have to point to an affirmative grant of jurisdiction. i. Turkey can prosecute whoever it wants UNLESS there is a rule against it. France has burden of proving (Burden of Proof) that there is a rule prohibiting Turkey from trying the French captain 4. International law principle: States may not exercise jurisdiction in the territory of other states (territoriality) 5. BUT: States can certainly exercise jurisdiction in their own territory with respect to ―international law‖ C. The Lotus case II 1. France argued: International law prohibits jurisdiction exercised solely on the basis of nationality of the victim 2. Court: But this is not such a case: Turkey exercised territorial jurisdiction a. Turkish ship equivalent to Turkish territory b. Manslaughter offense consummated in Turkish ship 3. So what we have is a crime w/ 2 elements – The crime is initiated in one jurisdiction and consummated in another jurisdiction; therefore, the jurisdiction is not based on the sole fact of nationality. (Not the effect of the crime, but the component) 4. When territory and nationality conflict, territory almost always prevails. a. Example of a dispute decided in favor of territory: PLO 1995 captured an Italian cruise ship and killed an American. The U.S. in interest of economy yielded to Italy even though they claimed the right to prosecute the PLO. (Achille Lauro affair – example of negotiations) 45 D. International Crimes 1. Hypo: Joe (US citizen) kills Maria (Mexican) by shooting her across the border. She dies in Mexico. a. 2 components: (1) pulling the trigger occurred in the US (2) she died in Mexico 2. IL does not resolve this issue of what happens when something occurs in 2 jurisdictions. IL simply says that both have a claim to jurisdiction. What normally happens is that the 2 jurisdiction negotiate and one yields their jurisdiction. If they cannot agree like in Lotus they will have to take it to a mediator. E. The Lotus case III 1. The ―Law of the Flag‖ a. IL Says  Vessels in high seas subject only to the jurisdiction of the state of the flag i. Purpose: to prevent a state from being able to prosecute crimes that occur entirely w/in a state‘s ship. b. But Turkey exercised jurisdiction in its own territory over events that occurred in the Turkish ship c. France: but there is a custom that prohibits criminal jurisdiction in collision cases, that is States have refrained from prosecuting in these cases d. Court: But opinio juris not shown  Ct says there is no evidence that the reason from refraining from prosecuting these cases was b/c the states though international law required it i. The court is requiring France to prove – impossible proof – an omission much harder to prove than an action, in regard to customary law ii. Another example of a defective type of reasoning used by courts when they do not like the result they put it in the ―catch all‖ category of saying it is not opinio juris e. 1982 Law of the Sea Convention: reverses Lotus Today the law is that Turkey could not have prosecuted the French captain i. NEW RULE: In collision cases ONLY: exclusive prosecution power (jurisdiction) is with the state of the flag flown on the ship. f. The value of the case remains in the analysis of territory and the idea that parties involved in crimes that have constitutive elements in either territory could both have jurisdiction. F. The Territorial Principle 1. Pure territorial principle a. Principle that states have jurisdiction over events that occur in their territory b. Shared territory: the teaching of Lotus  if the constitutive elements of a crime occur in 2 places c. Restatement of Foreign Relations (US)  Reasonableness  If it is unreasonable for the U.S. to exercise jurisdiction it should refrain from doing so 46 2. Extended territorial principle a. When the crime occurs in one jurisdiction but produces effects in other jurisdiction b. The ―effects‖ test: how substantial? i. Effects Test  Acts done outside a jurisdiction but intended to produce or produces effects w/in the jurisdiction. c. Most countries have continued to contest the overreaching of American courts on this issue (e.g. Antitrust) 3. What counts as territory? 4. The Achille Lauro affair  example of negotiations by states G. The Nationality Principle 1. Intro: Nationality is an important aspect b/c most people only belong to one state. Human Rights has blurred the importance of nationality a little bit. 2. The Nottebohm Case (ICJ 1941) a. FACTS: Liechtenstein had an interesting system for granting citizenship, you just pay a fee. In this case a German man who had the center of his business activities in Guatemala and his fixed place of residence there, buys his Liechtenstein citizenship. (Still a German citizen when applied for naturalization in Liechtenstein) Guatemala and some other countries declared war on Germany at the last minute before Germany was defeated. It was an old law of war that if you declared war on a state, you could confiscate the property of the subjects of the country. Nottenbohm says he‘s not German, he‘s a citizen of Liechtenstein. He had presented himself in Guatemala as he was German. Liechtenstein could not oppose Nottebohm‘s citizenship against Guatemala unless the citizenship is based on a genuine link. b. Liechtenstein can grant people citizenship for a fee if they want, but that citizenship will not prevail against other citizenship unless there is a genuine link. c. The ―genuine link‖ test – i. When giving citizenship there has to be a genuine link between the person and the country d. Complicated Holding: nations can have any method they want to grant citizenship to people; however, if other nations have reasonable expectation that the person has another citizenship because of special relationship then there has to be a genuine link (for example, business there, house there, live there, etc.). Here, since there was no genuine link, Liechtenstein could not invoke that citizenship against Guatemala because it had expectation of N being a German citizen. 3. 2 methods to gain citizenship a. Birth i. See Ius Sanguinis and Ius Soli below b. Naturalization i. Person applies for citizenship and if state consents then the person can become a citizen. ii. A person naturalized an USA citizen can be deprived of their citizenship whereas a person born a USA citizen cannot have their citizenship taken away. For example, if a person seeking naturalization lies on the application and found out after the fact that person can have USA citizenship revoked. 4. Ius Sanguinis and Ius Soli – 2 most important systems of granting nationalization (both deal with birth and citizenship) a. Ius Sanguinis – You are a citizen of the country from where your parents are from (father or mother). Thus, it is based on ―blood‖ ties b. Ius soli – Country you are born in is the citizenship you get. i. Thus, you are a citizen if you are born on the soil regardless of who your parents are 5. Nationality v. Territory a. Usually territory prevails. 47 H. The Eichmann Case 1. FACTS: A Nazi officer who fled to Argentina after WWII and changed his name and became a factory worker. The Israeli‘s found him out and they decided it would be too cumbersome to start extradition proceedings, even though Argentina was very friendly toward Israel. Israel decided to abduct Eichmann. In Israel, he was prosecuted, convicted and executed. 2. ISSUE: How does Israel get jurisdiction over Eichmann? 3. Passive personality? a. The victims were Jewish. b. Problem: Israel did not exist when the crimes were committed. Thus, court said passive personality principle did NOT apply because Israel was not a state at the time the crimes were committed and thus could not have citizens 4. Territory? a. There was no territory when the crimes were committed. b. You do not gain territorial jurisdiction by brining someone to your territory. 5. Protective principle? a. Israel could protect the people from its territory. Also, States have jurisdiction over foreigners, even over crimes committed outside their territory if they try to protect something that is valuable to the state. b. Could Israel have said they killed millions of Jews? 6. Universality? Court applied this principle a. There are certain crimes that are so heinous that any gov‘t that captures the person is entitled to prosecute the person. Any state may prosecute those crimes regardless of the connection with the crime. i. Typically includes war crimes, crimes against humanity (civilian crimes against civilians whether or not there is a war) and genocide b. Eichmann committed those types of crimes that any state could prosecute. Thus the Court says the territoriality principle applies. 7. The ―linking point‖ test – there must be a linking point between the crimes committed and the country alleging jurisdiction a. The link between Jews and the state of Israel is clear and undistinctable. There is a linking point betweeen Israel and Eichmann. 8. The ex post facto question – Dismissed b/c of Nuremburg precedent foreclosing this argument. 9. Unlawfulness of capture a. Settlement between Argentina and Israel B/C Israel had abducted Eichmann in violation of Argentina‘s sovereignty even though everyone is happy that Eichmann is going to be held accountable. b. Ct. does not care how they got to court – as long as they have jurisdiction. I. The Universality Principle 1. ―Paper‖ law? Universal Jurisdiction has been a case of paper law until recently: a. People accused of war crimes in WWII were not prosecuted by the U.S. for example but were extradited or tried before international military tribunals. 2. State practice a. Up until the mid-90s no state practice to support international jurisdiction. b. Then, the Pinochet decision in British House of Lords  The former Chilean dictator was indicted in Spain for crimes against humanity. He went to the UK, but in a famous decision he was extradited to Spain (nothing ever happened b/c he was in such poor health) 3. Universality in treaties a. Traits of universality in treaties that establish hijacking of aircraft as a universal crime 4. Which crimes give rise to universal jurisdiction? a. Piracy 48 i. Requires specific intent to profit b. Grave violations of human rights i. Genocide: acts of violence directed against a group with the specific intent to destroy the group. (a) Need specific intent AND an identified group ii. War Crimes (a) Have to be serious war crimes iii. Crimes against humanity iv. Slave Trade (slavery) 5. Does universal jurisdiction co-exist with international criminal courts? a. Problem: There are people guilty of horrible HR violations and the issue is how they should be held accountable b. Solution: 3 ways to prosecute a person for those crimes today -i. National court: Try the person by the courts of his own country; this is the most common. For example: Saddam and the Iraqi courts (a) Good b/c its where the crime occurred – witnesses, evidence, etc. (b) They were the ones that were victimized (c) Also respect for self-determination (d) Problem: (1) Some national courts are biased or not equipped to hold certain high profile trials ii. International courts: 2 kinds: (a) special courts for specific events (1) Truth and Reconciliation Commn‘n in South Africa (2) ICTY, Rwanda court (b) ICC – idea that there needs to be an impartial court b/c national courts are sometimes unsuited iii. Universal Jurisdiction – any court that captures a criminal can try him (a) Attractive solution b/c a person would not have safe haven anywhere. J. The Arrest Warrant Case (of Particular Interest to the Prof.) 1. Issues a. Arrest warrant issued by court against incumbent Congolese Foreign Minister (Yeroido) i. Yeroido committed obvious acts of genocide in the past and then was appointed foreign minister of the Republic of Congo. b. Universal Jurisdiction  Belgium had enacted a statute for universal jurisdiction and based the Arrest Warrant on this jurisdiction. i. Congo argued that there was not universal jurisdiction b/c this violated the ―sovereign equality‖ principles of Art VII. c. Immunity of Foreign Ministers  Then, Congo said even if there was jurisdiction, foreign ministers were immune from prosecution. d. Belgium: Belgium argued that crimes against humanity, etc were an exception to immunity of foreign ministers. e. EXAM ?: What did the court say about universal jurisdiction in the Yerodia case  The court did not make a decision, it did not decide whether it did or did not have jurisdiction. The court addressed the issue of immunity. [Court withdrew the universal jurisdiction issue, probably an agreement to do so, Congo only invoked the immunity exception in the final proceedings] Ct. saying even if there is universal jurisdiction there is immunity so it does not matter. 2. Mootness Objection a. Belgium claimed mootness b/c Yerodia was no longer foreign minister and in any other government position. 49 K. L. M. N. b. Legal dispute persists c. Distinguished from Nuclear Tests?  In the nuclear test case there was no reason to continue the proceedings b/c there was no longer a conflict. i. This case is different b/c there is still a dispute between the parties. The arrest warrant was still out there, and Congo argued it was unlawful. The Arrest Warrant Case II 1. Customary law – Immunity of foreign ministers a. Functionality test  Immunity is not granted for their personal benefits, but to ensure the effective performance of their functions behalf of their respective States. Immunity is based on the functions that a foreign minister has to perform. b. How is this est. – There is no treaty c. Must look to state practice 2. Immunity is absolute  B/C the nature of a foreign minister‘s function is of the highest function – conducting the foreign relations for the country, the foreign ministers immunity is absolute. Foreign minister has immunity in both ―official‖ capacity and his ―private‖ capacity. 3. Link btwn territory and immunity  The traditional view of jurisdiction is that there has to be some link in order for a state to have jurisdiction. 4. Exception for WC, CAH, and G? a. Precedents – Belgium offered a number of precedents for there being no immunity for crimes against humanity. i. Pinochet UK decision – distinguishable b/c no longer incumbent ii. Qadaffi French decision – still incumbent but not a foreign minister b. Not relevant i. Apparently, because they did not concern an incumbent foreign minister ii. Did not find a practice in customary international law of non-immunity iii. Concerned about national courts and non-immunity does not make sense there iv. Just b/c a national court has jurisdiction, does not mean there is an absence of immunity or vice versa. The Arrest Warrant Case III 1. Non-immunity in international treaties, such as ICC a. Only relevant to those courts – specifically say there is no immunity for official acts 2. Not impunity; he can be prosecuted: (Immunity from jurisdiction does not mean they enjoy impunity in respect to any crimes committed) a. In own courts – Congo could prosecute him b. If State waives immunity – Congo could waive immunity c. When he ceases functions: i. Prior offenses ii. Subsequent offenses iii. Private offenses committed while office d. In international courts 3. Absolute immunity for official acts while in power (paragraph 61) The Arrest Warrant Case IV 1. Remedy a. The mere issuance of the warrant is a violation of immunity, and must be cancelled b. Must warrant be examined in each case? The Arrest Warrant Case: Separate Opinion (Western Judges) 1. Universal Jurisdiction should have been looked at by the court notwithstanding the agreement of the parties. Procedurally, the court has the discretion to address UJ even if the parties want the court to address another issue. 50 2. Non ultra petitia rule applies only to holding  Rule says: do not decide issues not presented to it 3. Thorough review of precedent 4. There is no established practice in which states exercise UJ, but UJ is not unlawful either 5. Thus: emerging rule of UJ, with increasing acceptance 6. Preconditions and safeguards 7. Are CAH ―official acts? O. Arrest Warrant: Separate Opinion II 1. Two values: stability and accountability a. Flexible strategy  Used to be that people in power went unpunished but now there is concern about accountability. Flexibility means international courts and UJ. 2. Foreign Minister immunity not same as Head of State 3. Belgian legislation complied with requirements 4. Cancellation of warrant should not be required: not illegal anymore. P. Belgian Judge’s Dissent 1. No rule prohibiting exercise of criminal jurisdiction over Foreign Ministers a. No state practice; analogy inappropriate 2. WC, CAH, and G are exceptions to immunity a. The Court ignores developments 3. In this case, immunity means impunity a. Congo did not prosecute Yerodia 4. UJ recognized for WC, CAH and G 5. Lack of comity is not illegality (comity – the respect the U.S. courts give to the laws, acts and decisions of foreign countries) Q. International Jurisdiction in the U.S. 1. Willingness of the U.S. to exercise international jurisdiction is indicated in the area of antitrust law enforcement, where the alleged conduct occurred overseas. 2. Hartford Fire a. FACTS: London companies that are reinsuring American companies. Argued that both domestic and foreign companies were violating the Sherman Act. Foreign companies were arguing that the application of the Sherman Act to them violated British law. b. The Court i. Comity analysis – the court says what we should apply here is comity analysis – the respect to laws, actions of other countries. ii. However, there is no need for comity here because No conflict with British law – the British law is more permissive, so where they complied w/ American law they would also comply with British law. c. Scalia’s Dissent i. Different notions of jurisdiction ii. Two presumptions (a) Against extraterritoriality – A statute should be presumed not to apply outside the U.S. unless it states otherwise. (b) ―Charming Betsy‖ canon – Whenever possible a statute should be read consistently w/ IL (1) Idea that reasonableness is a part of IL (2) ―An act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.‖ iii. Jurisdiction not reasonable – Looks to the restatement which has a rule of reasonableness (a) Think jurisdiction is unreasonable b/c interfering in a regulatory scheme which permits this behavior. 51 (b) Obvious that applying the Sherman act to these Ps is unreasonable considering they have legislation that permits it. (c) The ISSUE as framed by Scalia: Whether we should apply comity or exercise jurisdiction in a case that is unreasonable b/c it interferes w/ comprehensive insurance regulation. R. U.S. International Sanctions 1. Helms-Burton Act  To create a right of action in U.S. courts on behalf of any U.S. national who has a claim for property confiscated by Cuba since Jan. 1, 1959, against any person who ―traffics‖ in such property. [Already had a primary embargo prohibiting American trade w/ Cuba) a. Lowenfeld i. He says the Helms-Burton Act is a secondary boycott. (which is illegal under IL) ii. A state is free to establish a primary boycott but not a secondary boycott. iii. In a secondary boycott, state A says that if X, a national of state C, trades w/ state B, C may not trade w/ or invest in A. (Ex. If a French country company traded w/ Cuba, what we considered confiscated property, then that company is civilly liable) iv. Secondary boycotts prohibited because they concern foreigners in foreign territory v. Effects doctrine misapplied vi. What if roles were reversed? (Arab-Israel and Iran)  would the Arab boycott of Israel have been legal. b. Clagett i. US interest defeats the interests of ―traffickers‖ ii. Cuba‘s interest is not applicable. iii. Europeans are taking a risk in trafficking stolen property; therefore, they have no interest. c. 3 Possible Positions i. The 2 embargoes are ok ii. Primary embargo ok, but secondary embargo is not iii. Other – appeal all the embargos. X. WAR A. History and Law 1. The Ancients a. Realism: i. Thucydides (a) Thucydides began the realism school of thought. He wrote a history book on the Peloponnesian War. He talks about realpolitik. (b) Realism is the view that nation-states have national interests, and they will act in a manner that advances those national interests. One of the premises for realism is that states exist in a state of anarchy, and they attempt to maximize their nationality interests in this environment. One of the corollaries of this view, if that there is no morality in international relations. Thucydides was against the laws of war, b/c he thought there were no moral limits on war. (c) How does this relate to war?  War is the ultimate means of advancing a national interest. Under realism, war is justified when it is undertaken to achieve a national interest. Waging war is not a moral issue for realists. A reason not to wage war would be because it would be imprudent to do so. Thus war is waged for prudential reasons tied to national interests; war is an interest of national policy. War is justified when it is about gaining some advantage. War is about weighing the costs and benefits of a state‘s actions in terms of its national interest. (d) He introduces 2 important notions – 52 (1) The Paradox of Empire – The empire gains power but in order to maintain power it has to do things that are self-destructive. For example, with the U.S. as the hegemon it has to take steps like restraining freedom (war on terror) to maintain power.  Power will be undermined by the actions a state has to take to maintain power. (2) Fear and the Security Dilemma—efforts to increase security out of fear increases the security of others  The main motivator in Int‘l Relations is fear.  Type of fear: Fear of the adversary.  As a result, states act out of fear. The actions that state‘s take to increase its own security decreases the sense of security of others. There is a snowball effect. Other states respond by taking actions to increase their own sense of security.  Intuitive Notion – States respond to the fear and threat of other counties and the reaction is to protect their national interest.  Ex. Arms Race (mutual distrust)  The ideas of fear and distrust are co-existent. ii. The Romans – the Romans agreed with the Greeks and thus took a realist approach to war (a) Whoever won the war was right  ―might makes right‖ (b) The idea of realism is that war is always a justified national interest. (c) The constraints on war are not moral but prudential. b. Pacifism: all wars are wrong; war is never justified. i. Early Christians  War is always wrong, even in response to aggression. (a) The first time there is a contrary opinion taken to the realist approach that war is a valid national interest is with the Early Christians. (b) The Early Christians strongly objected to the concept of realism. They had been persecuted by the Romans. As a part of their persecution they were forced to join the Roman Army. (c) They based their view of war on the text of the Bible of the idea of ―turn the other cheek.‖ (d) Even if a state is attacked, they should surrender instead of fighting. (e) The idea is that war is always wrong, even if it is in reaction to the aggressive behavior of others. (f) The early doctrine of the church – promoted Pacificism. c. Just War Theory i. The Christian view of war changed when the Christian Church became allied with the Christian princes. ii. Just War Theory  Realists are wrong in saying that war is ALWAYS a national interest and Pacifists are wrong in saying war is never justified. War is sometimes moral. Unlike realists, proponents of just war theory say that they need to have a moral theory or system of values that tells them when war is justified and when it is not. This is an extremely influential idea. Many people believe that the just war theory is the best philosophical reconstruction of the U.N charter that we have today. Many people believe just war theory is consistent with the system of international, treaties, IOs, etc. we have today. iii. St. Thomas Aquinas – Developed Just War Theory (a) Aquinas wrote Summa Theologica which systematically built upon the earlier ideas of St. Augustine (b) He says war is permissible and must be morally justified 53 (c) In order for war to be justified it has to fulfill a # of conditions (1) Just cause – War has to be in response to a wrong inflicted on you by another nation. A treaty violation is a ―just cause.‖ The general idea is that even though the princes still wanted to wage war, they had to give a reason. The reasons covered a lot of areas (violation of laws of succession, etc) (2) Waged by the Prince – [Waged by the government] – IT was very important for medieval theory to consolidate the power of the kings. Every war had to be a matter of state, not just a private matter.  Today, the government must wage war, not individuals (3) Right Intention – War has to be fought for the right reason. The prince has to have the intent to redress the wrong, and he should not have another intent. If there is a just cause, the intent of the warrior has to be to redress the wrong. (4) Proportionate – the war must be proportionate. A state cannot go in and use weapons of mass destruction for the violation of a trade treaty. (5) The Doctrine of Double Effect – Constraint on how to wage war; concerned with justifying war and proportionality: there should be more good than harm done  It is wrong to target the innocent, but it is not necessarily wrong for innocent people to be hurt if they were not the target.  Ex. There is a kindergarten next to a military bombing target. If you strike, it that immoral?  No, Collateral Damage can be justified so long as there is proportionality between the objective achieved and the collateral damage (there must be more good than harm done)  Geneva Convention – embodies (incorporated) the doctrine of double effect.  The GC does not allow combatants to intentionally hit civilians even if they are justified in using force.  But it does allow the death of civilians when you are hitting a legitimate military target.  IOW, strategic bombing is justified, but terrorist bombing is not.  The GC goes even farther to not require a just cause. Under Just War theory the party that was wrong in waging war would be invaliding the doctrine. However, in GC both parties are justified in fighting in this manner. B. Modernity 1. Collapse of Spiritual Unity a. Rejection of religion as the foundation of political power. Lots of religious wars, in addition to the discovery of the Orient led to a collapse in spiritual unity. Once the spiritual unity is broken, the just war theory becomes more difficult. This has had a # of manifestations including: i. Relativism (a) People were no longer confident in the shared moral code that would allow them to agree on a just cause. So the locus of morality shifted to the nation-state. Thus the old Greek idea of national interest reemerges (b) Relativism: The idea that every nation has their own form of values and b/c every nation has their own set of values there cannot be a unified idea of a just war. (Moral truth is not obvious). Different societies have different ideas about justice. 2. Realism again – idea of every nation having its own set of values has refueled realism a. Nationalism and national interest  More complicated than the previous realism b/c national interest are now coupled w/ ind‘l rights, etc. 54 i. Nationalism – Comes from the ideas of the founders of new nations; It is the notion of natural rights against despotism; sovereignty (a) Rise of the nation-state after the fall of the Roman Empire. Resurgence of the importance of the nation –state. (b) War is sometimes a means of advancing the interest of states. (c) War is a lawful means to realizing a state‘s national interest. (d) Again, the same idea lasts all the way from the 15 th century to 1945 – the idea that war is permitted by law. 3. ―Humanizing‖ War a. The return to realism is accompanied by a movement to humanize war. To soften the harshness of the national interest. b. Laws of war emerge in the 16 th century and become increasingly important. They recognize the right to wage war, but war has to be conducted in a fair manner. c. The emergence of international law – the Geneva Conventions d. Rules of Combat – laws of war C. Cosmopolitan Views 1. Kant’s Perpetual Peace a. The link between peace and justice i. Recognizes peace as an important value and criticizes his contemporaries for undervaluing it. b. He makes the argument that way one to achieve peace is for all nations to be democratic. c. Democratic Peace Theory  when nations are just they tend to be more peaceful. i. Important that there have not been war between democracies. ii. However, democracies make war against non-democracies. 2. Modern pacifism a. War and the killing of innocents – more modern views base pacifism on the absolute prohibition against killing innocents. D. 3 Traditions Regarding War 1. Extreme Pacifism  War is always wrong (minority view – but popular in the 1960s and 70s) 2. Realpolitik/Realism (other extreme) – War is an acceptable way to pursue the national, interest provided that particular prudential considerations are met. a. Now, no one holds the view once presented by Hegel that war is good for everyone at all times, B/C there are always costs associated w/ waging war. 3. ―Just War‖ – middle road – War is a horrible thing but it is sometimes morally or legally justified. The theory requires that when a state engages in war it is justified. The burden is on those who want to wage war. a. History of International Relations reflects all 3 views and up until 1945 there has been a permissibility of war. It was discretionary for governments to resort to war. However, in the 20th century there have been a number of attempts to prohibit war. E. Twentieth Century 1. Pardox that these attempts to avoid were unsuccessful w/ the world wars during this era. 2. The Drago-Porter Convention: If the parties are required to go to arbitration over a debt and one party refuses, then the other party could use force to repay the debt. a. Background: The Venezuelan government had incurred severe public debt. Venezuela defaulted and a # of European nations set warships to Venezuela threatening to take action, if Venezuela did not start paying the debt. b. Drago Doctrine  At a meeting of a group of American nations, the Argentinean foreign minister made a speech in Washington in which he said  It was impermissible in IL to use force in order to compel the payment of debt. 55 c. Monroe Doctrine  U.S. also responded b/c the countries threatening force were European and the Monroe Doctrine condemned European intervention in the American hemisphere. The U.S. like the Drago doctrine. d. Porter introduces the U.S. doctrine  Unless the defaulting country refused to go to arbitration, force could not be used to compel a country to pay its debt. 3. The League of Nations Covenant -- 1919 a. The Versailles Treaty which ended WWI created the League of Nations, which the U.S. was left out of b/c it did not receive senate support. The LON said that nations had the obligation to seek peaceful means to resolve disputes. It was unlawful to use force against a nation when the other nation agreed to arbitration or judicial settlement, etc. b. In sum, the LON limited the use of force and condemned aggression; but states could use force to resolve disputes if the dispute could not be resolved through peaceful means 4. The Kellogg-Briand Convention – 1928 – ―Treaty for the renunciation for the use of force‖ a. Main article says that the parties condemn war and renounce war as an instrument of national policy in its mutual relations. b. The way the treaty was drafted allows for a narrow interpretation. It seems what it really outlaws is wars of aggression. c. Nuremburg Trial one of the charges was war of aggression. One of the Ds argued that international law did not prohibit war. However, since Germany was a part of KB, the D was supposed to know that war was restricted. 5. The Italy-Abyssinia incident a. Abyssinia is the old name of Ethiopia. b. Italians wanted to avenge 19 th century defeat and invade Abyssinia. i. Problem was the Abyssinia was a separate nation and a member of the LON. ii. Both were members of LON, but LON did nothing (failure) iii. Thus, they ignored the Kellogg-Briand Convention 6. Geneva Conventions – following WWII a. Attempt to limit the permissible ways of waging war (humanitarian); it‘s a regulation of the means of war. XI. USE OF FORCE A. The UN Charter (allows use of force in 2 situation: (1) self defense and (2) UNSC authorization) 1. The Preamble a. To ensure that armed force will not be used except for a common interest b. Great innovation in banning the use of force  banning the unilateral use of force 2. Article 2(4)  bands the use of force a. ―All members‖ i. Seems to suggest that only UN members are bound ii. However, this has lost significance b/c almost all states are members, and even those that are not members are bound to Art II, b/c it is an expression of CIL. b. ―Use of force‖ i. Why is the word ―war‖ not used  the word war seems to represent full blown conflict and the charter also wants to prohibit smaller conflicts, skirmishes. ii. The charter actually prohibits any use of force against a state, not only what has been traditionally thought of as war. iii. Use of force – does not address what have been referred to as ―economic force. Withholding foreign aid, for example, is not the use of force. A # of nations want this to be included. iv. The use of force should be read to mean military force – which involves both major and minor uses of force. 56 c. ―Threat of force‖ i. Not only is actual force prohibited, so is the threat of force ii. Even though threat of force prohibited, states still do it today (Iran want to wipe Israel off the map) d. ―In international relations‖ i. The purpose is to exclude internal wars -- 2 types (a) Civil wars (b) Internal suppression ii. History of the provision: France and England did not want the use of force engaged in against the colonies to be included in the provision. (a) UN has since taken the position that the use of force by colonial powers is unlawful. iii. Traditionally, IL neutral about civil wars. (a) Since then IL has some rules in IL for people that control the territory, if rebels control part of a territory, then the gov‘t is not responsible for acts that occur there. iv. This concept has changed over time w/ the development of HR (a) IL tends to side w/ the rebels when it is a repressive gov‘t. (b) However, when the government is legitimate, IL tends to side with the incumbent government. e. ―Against…any State‖ i. Prohibits members from using force against any state ii. This actually protects any third state, even states that are not members of the UN f. ―Against the territorial integrity or political independence…or purpose ‖ i. This clause is the most controversial ii. Plain meaning shows the clause qualifies the meaning of the prohibition – to control force in these 2 types of manner (a) A war of territorial integrity would be one where attack and try to partition the state (b) Political Independence, for example, would be what Iraq tried to do to Kuwait iii. ―…purpose‖ (a) Also seems to suggest that there are some uses of force that are consistent w/ the UN 3. Chapter VII – Action w/ Respect to Threats to the Peace, Breaches of the Peace, and Acts of Agression B. Interpretations of the Prohibition – Debate between a broad and more narrow interpretation of Art 2(4) 1. Broader Prohibition a. 2 exceptions recognized in the charter relating to Broad use of Force  i. Art 51 - Self-defense (either broad or narrow) ii. Chapter VII procedures (use of force authorized by the Security Council) 2. Narrower Prohibition: Controversial cases – where perhaps the use of force should be applied a. Force by invitation i. Grenada and Haiti (a) Haiti – U.S. intervened to restore the President. Ultimately, received permission from the SC. But before permission the U.S. argued the president invited the U.S. to use force. (b) Grenada – U.S. overthrew Grenada gov‘t ii. Invitation by a belligerent in civil war (a) Traditional view – only an incumbent government can invite another state to use force. (b) Modern View – Depends on the incumbent gov‘ts legitimacy. b. Force to recover illegally seized territory i. One Situation: if the territory was seized as a part of a military invasion, then the state can use force in self-defense  that‘s ok under the broad interpretation. 57 ii. Situations not self-defense  (a) For example, A seizes B‘s territory illegally but B does not have the strength to resist. 20 years later B tries to invade and take the territory back. Not self-defense b/c 20 years have passed. (b) Issue arose in 2 cases: (1) Goa: India took back Goa, which had been a Portuguese colony by force. Trying to redress the ills of colonialism gave strength to India‘s cause (2) Falkland Islands: Belonged to Spain and were acquired by Argentina when it gained independence from Spain. The British took the islands by force, and the islands were gradually populated by British settlers. GB said it would the island back if that‘s what the islanders wanted, but the islanders did not want to be a part of Argentina. GB said it was honoring self-determination. Argentina took the island by force. Massively condemned by the international community. Cannot use force even if illegally seized. British sent ships there 2 months later to recover the island and argued it was self-defense b/c that was how long it took for forces to get there. (involves self-defense it is ok) (3) Difference btwn Falkland Islands and Goa – Goa involved colonial power c. Force to assist ―National liberation‖ i. There is some argument that the use of force can be used to help groups that are about to be massacred ii. Controversial: Claim on the part of Israel/Palestine weakened by the peace process – force not lawful. iii. Groups that are fighting colonial domination. iv. Some say Kosovo is the same situation as a colony. d. Force to secure a legal right i. Traditionally, if IL is violated a state could use force, but not justified today. ii. However, there are difficult cases: (a) Ex. Russian ship enters territorial waters of the US where it needs to ask permission. However, it did not ask for permission and the coast guard tells the ship it is in violation of IL. The ship still will not leave. Prof. Teson thinks it is ok to use force here (minor use of force). (b) When it is use of force within your own territory it is more justified. (c) Use of force on the high seas would be a different story. e. Humanitarian intervention i. Can states use force to prevent or end humanitarian crises or catastrophes – genocide, mass murder, tyranny, anarchy. ii. Evolving concept: Prof. Teson argued in 1988 in some cases the use of force is ok for humanitarian intervention. Now, it is an accepted view that humanitarian intervention authorized by the UN is acceptable and about 50% think unilateral humanitarian intervention is ok. iii. Does 2(4) prohibit humanitarian intervention: (a) Legal argument: Rely on the purposes clause – The purpose was to protect human rights, and it would be contrary to the charter to prohibit an essential value against the UN. WWII was a struggle against fascism, so why should the use of force be banned against similar governments now. f. Pro-Democratic intervention – subset of humanitarian intervention. Uphold democracy or restore the democratic government that was in place. Most scholars are against this. C. Self-Defense 1. Normal SD – Art 51 a. Notice the word “inherent”  seems to suggest there is a natural right to self-defense 58 2. 3. 4. 5. i. Right to self defense inheres in the sovereign; self defense is necessary for sovereignty b. Armed attack requirement  strong words, leads commentators to say it requires a full blown attack c. Collective SD – a term of ―art‖  right to request assistance i. Need to request assistance – In Nicaragua, a state has to request assistance. Prof. Teson thinks this is too formalistic ii. Mutual defense pacts – codifies collective security by establishing rights and obligations of mutual help. Ex. NATO iii. Article 52—Enforcement by regional arrangements Anticipatory Self-Defense a. Art 51 – ―if an armed attack occurs‖ i. The word ―occurs‖ leads many to say a state cannot react in an anticipatory fashion. ii. A state has to wait until it is attacked. iii. If an attack is imminent it has not occurred. iv. Another reason is policy: Easy to think a neighbor is about to attack when they are not and to justify the use of force by saying you thought they were v. Problem (a) Text not conclusive b/c the French translation is broader (b) If you prohibit anticipatory self-defense you give military advantage to the aggressor (first strike advantage). This might be the difference btwn winning and losing if the other side is able to attack first. b. Imminence: The Six-Day War Case i. Background: Everyone knew the Arabs were about to strike Israel. So Israel struck first. The UN did not condemn Israel‘s action, but did criticize Israel for taking territory. Even if you act lawfully in self-defense you cannot acquire territory in that way. However, UNSC did not hold that the first strike was a violation of Art 2(4) ii. This may stand for a situation when there is an imminent attack, then anticipatory selfdefense may be used if it fulfills the other requirements of proportionality. Preventive Self-Defense – like anticipatory self defense but lacks imminence a. Concept: The use of force even if the attack is not imminent. However, if an attack did occur it would be devastating. b. Traditionally, preventative self-defense has been unlawful. i. 1981 – Israel attack a nuclear reactor in Iraq. This was condemned @ the time, but now most people think it was a good thing. c. Movement toward allowing preventative self-defense but w/ UNSC authorization. i. Kohane argues this should be allowed. d. The 2003 Iraq War – WMD – Argued that the use of force should be permitted to address the possibility of WMD. e. Hypo: Iran is building WMDs and says it wants to annihilate Israel. If a strike would eliminate WMDs before Iran did this it would be preventative self-defense. Delayed Self-Defense a. Delayed self-defense is permissible – it does not have to be an immediate reaction to an attack. b. E.g.: The Falkland Islands Case The Erosion of ―Caroline‖ a. Caroline Standard  old notion of self defense  as defined by criminal law, Defensive reaction has to be proportionate in response to an attack. After repelling an attack you cannot go further to pursue or punish. 59 b. However, in IL after you repel the aggressor there are no cops to call, so the Caroline Standard in inadequate. An aggressor should be punished. In WWII, the allies pursued the Nazis and occupied Germany. c. If you look at state practice, self-defense has been a term of ―art‖ to encompass defensive action and proportionate retaliation. It is not merely defensive. It has become a countermeasure to another actors aggression – and authorizes military action beyond mere defensive action. d. Art 51 tries to capture the position of self-defense in criminal law by making the SC the cops. But lots of times the SC is paralyzed by veto. e. Self-Defense as countermeasure/retaliation i. Ex. In first Iraq War – Iraq tried to argue the conflict was over, so now it goes to the SC under Art 51 – however, not kicking Iraq out of Kuwait would have been inadequate. D. Self-Defense II 1. The Role of the UNSC a. The language of art. 51 b. The UNSC is silent or blocked? i. The inherent right of self-defense ii. Where UNSC is silent, it is probably ok to use force. (a) E.g. 2003 Iraq War (b) Generally, U.S. takes the position that if the UNSC is silent following an attack, the U.S. still has the power of self-defense under Art 51 c. The UNSC prohibits armed response? i. Directly? By implication? ii. Where prohibited – prohibited means prohibited 2. Self-Defense Against Non-State Actors? a. Sept. 11 – After 9/11 it appeared that self-defense could be used against non-state actors i. 2 possible positions the US could take after the attack (a) Criminal Enforcement Model: 9/11 attacks were crimes committed under NY and federal statutes, committed on American soil, victims were American [not followed by US] (b) International Aggression War Model: (1) The U.S. had been attacked in the meaning of Art 51 – an armed foreign attack. The problem was the attack was not by a state. (2) Art 51 assumes a state attacking a state – U.S. took it to the SC like they were being attacked by a state (3) Why did the U.S. adopt this  Allows mobilization of resources – armed forces; Allows action overseas; Allows US to mount military operations against enemy governments  The attackers were foreign  Was seen not only as an attack against US persons, but an attack against principals of American democracy (4) UNSC resolutions initially approved this b. ICJ dicta in ―Israeli Wall‖ (2004)  no SD against non-state actors operating from w/in the attacked state‘s territory i. Denied Israeli reliance on 9/11 UNSC resolution: Whereas 9/11 attacks were planned overseas, Israeli Wall stuff occurred all w/in Israeli jurisdiction c. Prof. thinks that self defense against non-state actors is an emerging principle in international law E. International Case Law 60 1. Nicaragua a. Minor and major uses of force – ct distinguished i. Major: Those amounting to armed attack – all out war ii. Minor: Boarder skirmishes, indirect force b. No collective SD against minor uses of force; only ―countermeasures‖ i. Not allowed to request help if it‘s a minor use of force. (a) So even if Nicaragua supported rebels in El Salvador, El Salvador does not have the right to ask the US for help. The purpose behind the court‘s decision was to minimize the use of force. c. Definition of unlawful intervention d. US argument to justify use of force: N was helping support communist rebels in El Salvador. In order to counter this US supported rebels in Nicaragua. e. ICJ held that even if it was collective self defense (it was not sure that it was) it exists only in response to an armed attacked—a large scale attack only i. If a state uses unlawful force against another state and it is a ―minor use of force‖ then the state cannot request aid in form of collective self defense. So the court distinguished armed attack with minor use of force (a) Minor uses of force should be met with countermeasures and not collective self defense (cannot ask for help); if it is an armed attack (major use of force) then can ask for help (collective self defense) 2. “Israeli Wall” a. No SD against non-state actors operating from within the attacked State‘s territory? F. Oil Platform Case – reaffirms Nicaragua case 1. FACTS: American [military] vessel was hit by a missile and it was disabled not sunk. As a result, the U.S. destroyed a number of Iranian ships. The U.S. took it to the SC saying it was exercising the inherent right of self-defense b/c it had been attacked by Iran. 2. Reaffirms Nicaragua a. U.S. could not have acted on behalf of neutral states, because there was no request b. Only ―most grave‖ forms of use of force justify self-defense i. Countermeasures? c. Attack against a private ship not an attack on the state 3. Evidence does not support U.S. anyway on the question of SD (no armed attack), but Iran could still be internationally responsible for its acts. G. The Coercion Continuum 1. The Nicaraguan ruling develops a theory of coercion 2. The arrow means increased coercion 3. At the more peaceful end we have normal diplomacy. ---------------------------------------------------------------------------------------------------- Diplomacy Sanctions Minor Force Aggression | | | | Non-coercion non-forcible __________________ Forcible |_______________________________________| Coercion 4. Unlawful Intervention – is the use of coercion to change legally discretional choices. a. It requires 2 things (2 prong test): (1) Action must be Coercion (2) against legally discretional choices—that is it intrudes upon things the state should be free to chose. 5. All actions that a stake can take against another state are either coercive or non-coercive. 61 6. Coercive Action a. Not all coercive action involves force  ex. economic and diplomatic sanctions b. Actions involving force i. Minor Force  gives right to countermeasures (court seems to think no such thing as collective counter-measures) Minor uses of force call for individual countermeasures NOT collective use of force ii. Major force  Right to SD c. Coercion will only be unlawful when it is against legally discretional choices XII. The Iraq Wars and Humanitarian Intervention A. First Iraq War (1990-91) 1. FACTS: Iraq invaded Kuwait and tried to annex Kuwait. The U.S. considered furnishing aid to Kuwait under Art. 51. At the same time, a number of governments brought this to the attention of the SC. And in a very important resolution the SC unanimously condemned Iraq‘s invasion and demanded its withdrawal from Kuwait. The SC decided to impose measures not involving the use of force (sanctions). The idea was the sanctions should be tried first before resorting to force. So the issue was: Are states authorized to use force for self-defense when the SC has authorized the use of non-forceful means. [T thinks the correct position – The fact that the SC has authorized non-forceful means under Art 41 does not impair the interests of self-defense under Art 51] 2. Timetable a. Economic Sanction b. Then debate about the use of force  which became moot when UNSC later authorized the use of force 3. Classic Case of Aggression a. Collective Self-Defense i. Argument was that article 51—collective self defense—could be taken if UNSC did not give approval for use of force b. UNSC Authorization i. “All necessary means” language (a) The UNSC has never used the words we ―authorize the use of force‘ instead they say ―all necessary means‖ to restore peace and security (which of course if false b/c war does not equal peace and security) ii. No UN troops – troops of the members (a) Broad alliance of states that started a military operation in Iraq w/ the goal of removing Saddam from Kuwait. (b) A successful operation – Saddam was expelled from Kuwait. At one point the coalition stopped short of Baghdad and decided not to remove Saddam. c. Res 687: Disarmament of Iraq i. Famous resolution following the defeat of Saddam that est. a comprehensive disarmament of Iraq  This call for complete disarmament had never been seen before ii. These resolutions were important – one of the reasons the President later decided to bomb Baghdad. iii. It was the most comprehensive disarmament in UNSC history d. How long must members wait to exercise SD if the UNSC has authorized art. 41 but not yet art. 42 measures? e. Would removal of Saddam Hussein been unlawful? i. Under a broad notion of self-defense it makes sense to remove the origin of aggression. 62 ii. A more limited notion – after you have defended yourself it does not make sense to remove the offender. But in this case, Saddam immediately committed genocide against the Kurds. B. Second Iraqi War (Spring 2003 up until now) 1. Background: The U.S. and a few others attacked Iraq. They tried to obtain authorization from UNSC, but the UNSC did not give authorization 2. Justifications Offered – different justifications than the first war a. Self-Defense – 2 versions i. WMDs (a) Iraq itself posed a serious threat to the U.S. and allies b/c Iraq allegedly possessed WMDs (b) Iraq‘s possession of WMDs had motivated a string of UN resolutions and was the result of a constant tug of war btwn Iraq and the rest of the world. (c) How is it that the weapons were not there? Intelligence thought they were there. Saddam acted as if he had those weapons. (d) Said Saddam posed a risk of humanitarian catastrophe if he used the weapons. – So the justification would be preventative self-defense. ii. Involvement in 9/11 (a) Teson thinks its unlikely Saddam actually involved in planning 9/11. (b) Relied on broader justification of Iraq as a base for terrorist support. (c) Maybe true that he had involvement w/ Al Qaida. b. UNSC authorization: Res.1441 i. Last resolution authorized by the SC denouncing the WMDs and the human rights violations and giving Saddam the ultimatum that if he did not agree to certain UN requirements he would suffer consequences. ii. The problem w/ this argument it that is said if he did not comply w/ the resolution the UNSC would meet again – (maybe then it would authorize the use of force) iii. Not really a strong justification iv. Last resolution before the USA invaded Iraq c. Enforcement of Prior UNSC resolutions i. Piece by Yoo  The action in Iraq was of the same nature as the first Iraqi war based on previous UNSC resolutions – about the WMDs. ii. Argument not totally convincing. d. [If Teson had to choose a justification he would choose self-defense – the least implausible of the 3] C. The Second Iraq War as Humanitarian Intervention 1. The Doctrine of Humanitarian Intervention  The use of force to put an end to the violation of human rights a. 2 Steps to the overview (1) survey the law and state practice (2) then the scholarly debate that some people have called the jurisprudential war 2. Application to the second Iraq war a. Some argue that the Iraqis had a right to ask for help to remove Saddam b. Political rhetoric shifted to justifying the war as a means to spread democracy D. Unilateral Humanitarian Intervention 1. UN Charter a. History and text i. The text is ambiguous ii. Art 2(4)  seems only self-defense is authorized, not the regular use of force. iii. Argument that humanitarian intervention is never mentioned in the UN Charter (a) Some argue that Unilateral Humanitarian Intervention is implied in the Charter 63 b. Different Interpretations of the UN Charter Purpose i. Critics of Humanitarian Intervention  The purpose of the charter was to end wars and to establish a system of collective security that would replace the unilateral characteristic of war that had existed in IR for so long. The purpose of the charter was to reduce the available justification of war (self-defense) and not increase the justifications by adding humanitarian interventions. ii. Proponents of Humanitarian Intervention  While one concern addressed by the charter was to end war another concern was reaffirming the faith in fundamental human rights. If governments are permitted to commit genocide against people, then that betrays the humanistic aspect of the UN Charter. The UN charter came out of WWII, and if WWII is seen as an attempt to overthrow fascism, then it would be incongruous to view the charter as banning humanitarian intervention. 2. State Practice a. Pre-1945 – Number of pre-1945 instances of humanitarian intervention b. Post-1945 i. Precedents up to Kosovo (a) India‘s aggression in Pakistan (b) Tanzania invaded Uganda to overthrow Ugandan leader (c) 1979 – France overthrew the Emperor of Central African Empire (1) None of these were condemned by UNSC (see above) (d) 1983 – US invaded Grenada – that was condemned by the UNGA but the SC did not do anything (e) 1989 – US invaded ????? and disposed the dictator (f) The coalition est. safe havens in Iraq to protect the Kurds c. 1990s – instances of non-intervention (a) 1994 – Rwanda – murder of ½ million (b) Earlier the Bosnian War – massacre of 7000 boys and men d. Kosovo  emblematic turning pt. i. FACTS: (a) Under strong pressure of public opinion (b) NATO sought authorization by the SC to use force, but Russia vetoed so no authorization. (c) NATO went ahead w/ the bombing campaign, that put an end to the ethnic cleansing of Albanians in Kosovo. ii. Kosovo became a hot issue for the int‘l legal community – up until now intervention required authorization by the Security Council. There seemed to be a responsibility to protect. iii. Commission formed that determined  The intervention was unlawful but legitimate. e. 2 kinds of intervention i. Authorized by the SC ii. Unauthorized by SC E. Collective Humanitarian Intervention 1. HI and Chapter VII a. Chapter VII seems to suggest the language of aggression not humanitarian intervention b. Iraq‘s no-flying zones – In order to protect the Kurds against Saddam c. Somalia – 1991 – SC authorized the use of force to put and end to a failed state d. Bosnia – 1994 – The Serbians were bombed e. Haiti – 1994 – Military group took over, the U.S. threatened to intervene. f. Sudan – incident going on in Dalfur – SC considering intervention 2. Regional precedents 64 a. Includes not only NATO, but OAS b. People think OAS is not very effective but did intervene in Nigeria c. Important movement in Africa for humanitarian intervention 3. Collective Humanitarian intervention has the most support, but unclear what the scope is. F. Humanitarian Intervention: The Jurisprudential Debate 1. Moral foundations of the state a. Social contract – Wee need the state to solve a # of social problems, so we need to find a way to solve the problem b. Human Rights – Ind‘ls are born w/ certain natural rights and the main goal of the gov‘t is to protect those rights c. Sovereignty i. Prof. Teson thinks sovereignty does not have an intrinsic value. ii. It has an instrumental value – those purposes are ind‘l purposes – the basic values iii. Head of the government has to protect human rights. 2. The Obligation to Aid Victims of Injustice a. Promoting human rights b. Stopping atrocities i. High threshold for intervening: severe tyranny or anarchy ii. Ordinary tyranny perhaps should not intervene (a) Ex. appropriate intervention -- Rwanda 3. Objections to Humanitarian Intervention a. Relativism – The idea that the U.S. should not be importing its own ideas on other people. However, the problem w/ this argument is that no religion or doctrine supports torture or mass murder. b. Communal integrity – form of relativism c. International law – will violated IL no matter what you pick; policy of non-intervention d. Global stability e. Danger of abuse f. Killing innocents – if you intervene by force, you kill innocents. i. Response Double Effect  Either you accept that sometimes there will be accidental deaths or you have to take the position that every way is impermissible. G. Can the Iraq war be justified as HI? 1. ―The War Cannot Be Justified as Humanitarian Intervention‖ a. War on behalf of human rights is prohibited (doctrine of HI invalid in international law). b. The Coalition did not offer HI as a justification, i.e., Bush and Blair did not say that it was so justified. i. T argues this is the wrong approach b/c the important things is what they intend to do, not what they say they are going to do c. Bush and Blair did not intend a humanitarian objective, but had other aims. d. The Coalition did not comply with other requirements of the HI doctrine. H. Intention: 1. Teson say critics of the intervention in Iraq confuse the notions of intent and motive 2. J.S. Mill: Utilitarianism, note 2  makes the distinction btwn intent and motive a. Intention – is what the agent wills to do, what he wants to do b. Motive – the motive is irrelevant c. E.g. Suppose someone is drowning and you rescue them b/c they owe you money. The motive is irrelevant b/c you intended to rescue them 3. Intention: what the agent wills a. Directly connected to the act b. Aiming to do X (desire) 65 I. J. K. L. M. N. O. c. Committing to doing X (commitment) d. Doing X (belief that the act is under my control, and choosing appropriate means) e. Intention individuates the act f. Intention serves to evaluate the act Motive 1. Motive: a further goal I want to accomplish. a. Less directly connected to the act b. Examples: rescuing for fame, or money c. Motive does not individuate the act d. Motive does not serve to evaluate the act; but it serves to evaluate the person e. Motives vary in respectability 2. Selfish motive does not destroy the goodness of the act a. Except: when the motive is wicked intention (Aquinas) Relevance to Humanitarian Intervention 1. If the Coalition waged war with the intention to rescue victims of tyranny, committed to doing it, and did it, then it is an act of humanitarian intervention, even if its motive was selfish. 2. Semantic ambiguity: ―The US invaded Iraq because of the oil‖, where ―because‖ may mean intention or motive. 3. The selfish motive would have destroyed the good intent if, for example, the US would have deposed SH to impose its own tyranny (Vietnam-Cambodia 1979) Actions or Persons? 1. Upshot: If Bush had a bad motive that is a reason to lower our ―moral estimation‖ of him (perhaps a reason not to vote for him). But it not a reason to devalue the goodness of the act of intervention. The Two Humanitarian Justifications of the Iraqi War 1. The Narrow Rationale a. Ending Saddam‘s Tyranny 2. The Grand Rationale a. Second Inaugural Address b. US security requires democratizing the Middle East and, if possible, the world i. Current developments: Lebanon, Saudi Arabia, Egypt c. Strategy includes solving Israeli-Palestinian conflict. d. Very bold, may fail The Doctrine of Double Effect 1. Intervention: Just cause 2. Good effects should outweigh bad effects 3. Innocents should never be used to achieve good effects; bad effects are not willed Consequences 1. Not only right intent is important, but of course what the intervener does is the crucial for justification. 2. Failure to achieve the good result is a violation of Doctrine of Double Effect. Does the Iraq intervention fare well under HI principles? 1. The intervention had just cause and right intent 2. Effort to comply with the Doctrine of Double Effect 3. Are costs acceptable? a. Good results i. Free, clean elections ii. Liberal constitution iii. Democratization of Middle East iv. Future generations 66 P. Q. XIII. A. 1. 2. 2. 3. 4. 5. b. Bad results i. Deaths of innocents ii. Backlash against the U.S. iii. Victory of insurgents? iv. Destabilization of Middle East? The Nature of the Regime 1. The Human Rights Watch Critique a. Only ongoing massacres justify HI 2. Standard inadequate a. If it were adequate all tyrants would need to do is to speed up the killings 3. Why did HRW choose to speak against the war? Did the Iraqis welcome the intervention? 1. Objections: No, because of the virulence of the insurgency 2. Reply: a. The determination and ferocity of the enemy should not be the measure of legitimacy b. Reliable evidence shows a great majority of Iraqis do not support it c. The insurgency is a criminal enterprise i. Saddam loyalists plus Al-Qaeda Human Rights History Pre-WWII precedents a. Development of the law protecting foreigners i. There were minimum standards for treating aliens – this arguably concerned human rights b. Humanitarian Interventions i. There were incidents of military force used to prevent serious human rights crimes The UN Charter a. USA government thought that WWII was not simply a problem of aggression but also saw that fascism and oppression threatened human rights. i. Preamble referenced human rights – this was the firs time ever that it was mentioned ii. Stalin and the British and the French all had problems with mentioning human rights b. Lobbying by USA Jews kept the mention of human rights in the Charter c. Provisions i. Art. 1(3) one purpose of the UN is to promote human rights ii. Art. 2 principles – there are NO principles that deal with human rights iii. Art. 55 makes reference to human rights and says they should be promoted The Nuremburg Trials a. Reaffirmed the idea that crimes against humanity are violations of basic human rights The Universal Declaration of Human Rights a. It is a resolution of the UNGA and thus it is NOT binding b. USA made a statement that this is not a treaty and rather is was aspirational c. It is a point of reference for the human rights that should be recognized under international law. d. Today it has reached a higher status but it is not yet customary law The UN Covenants a. Civil and Political Rights Covenant b. Social and Economic Rights Covenant The UN System a. It protects human rights b. 2 branches 67 i. What happens in UN 1. ii. What happens under the Covenants 1. If state has accepted an optional protocol then the Human Rights Committee can hear a case by the country and its citizens 2. There is a Human Rights Committee that can hear claims by citizens and may issue reports that are non-binding 6. Regional system (in order of importance) a. European Human Rights System i. Most important ii. It has the European Court of Human Rights b. Inter-American Human Rights Convention i. Established in 1969 ii. The USA is not a party to the Convention c. African Human Rights System 7. Other treaties a. CEDWA b. Other important treaties 8. Status: What is the status of Human Rights in international law? a. Human Rights as treaty law i. The problem of incentives 1. There is little incentive for a gov. to sign a treaty to protect third parties. So getting the treaty made is a problem. Gov. have incentive to care about their own people ii. The problem of lack of enforcement 1. There is lack of enforcement of human rights because there is no international police. b. Human Rights as customary law – the main problem is that customary international law requires practice by states (obey human rights) and opinio juris. The problem is that governments still violate human rights and thus arguably cannot uphold human rights as customary international law i. Which human rights? ii. Wise custom v. wild custom iii. The restatement iv. Natural law? 68