International Law Outline THE INTERNATIONAL LEGAL PROCESS I. The Concept of International Law A. Definitional Considerations B. IL in Historical and Contemporary Perspective 1. Historical Perspectives a. General Factors 1) Spread of Roman Law through Europe 2) Revival of trade/commerce during Middle Ages 3) Formation of Leagues of Trading Towns for protection of trade and citizens engaged in trade 4) Development of Maritime Law made necessary by spread of international trade on the seas 5) Growing custom of States to send/receive permanent legations 6) Establishment of permanent standing armies 7) Renaissance and Reformation 8) Plans for maintaining International Peace 9) Discovery of America 10) American Revolution b. David Bederman 1) Natural Law = something intrinsically part of humanity/society (especially human rights) 2) Positivism – states subject to no moral authority above them a) Views (1) IL is whatever states say it is (2) Natural Law is all well and good but who gets to say what Natural Law is? 3) Rules: a) Multipolarity good for development of IL b) Anarchy or unipolarity bad for development of IL c) Responsive to conflicts only, not preventative 4) Sovereignty states are independent and autonomous; IL would not develop without independent states a) Evolution: Unquestionable power of Monarch (1) Claim of particular authority to a territory (2) Power of state over citizens (3) Sovereign equality (freedom of states with other states freely at international level) (4) Popular sovereignty (power of people within State) b) Limits: Globalization, neo-liberal economics, development of legal constructs like human rights, epidemics (i.e. AIDS) c) “Disaggregated Sovereignty” great control over own territory but all states face global issues *Current Status c. Richard Falk 1) Successful areas of IL: a) Management of Complexity resilient capacity by sovereign states to contrive mutually beneficial ways of dealing with implications of interdependence d. Problem areas of IL 1) Containment of Conflict within Tolerable Limits Procedures for prohibiting aggressive uses of force 2) Promotion of Decency in the World: a) Equity (Poverty/Mass Misery) b) Development (Increased quality of Int’l Life) 3) Avoidance of Catastrophe failed because no political will to achieve restraint e. Some Success: promotion of decency defining equity and encouraging development 2. Contemporary Perspectives a. TWAIL I: Anghie & Chimni “Third World Approaches to IL…” 1) Generally: Focus is getting voice heard (embrace 3rd World) a) Focus on sovereignty and non-intervention b) Historically developed during emergence/anti-colonial forces of 3rd World c) GOAL: Democratic formation of IL 2) Reasoning: a) Indicted colonial IL for legitimizing the subjugation and oppression of the Third World peoples b) Pre-colonial 3rd States were not strangers to idea of IL c) Non-rejectionist stance towards IL IL could take steps to incorporate needs/aspirations of newly independent states d) Principles of sovereign equality of states and non-intervention e) Political independence in itself insufficient to achieve liberation, since economic structures which linked 1st and 3rd World continued to disadvantage South (therefore needs reform) b. TWAIL II: More critical of system (expands success of TWAIL I) 1) Critiques: a) 3rd World State and global system as repressive resort to violence and authoritarianism (1) align with 3rd world people, not 3rd world states b) IL inherently colonial Colonial expansion developed “Universality” characteristics of IL (1) Thus, Doctrine for assimilating non-euros into IL inevitably shaped by relationships of power and subordination inherent in colonialism c) “Civilizing Mission” – characterization of non-euros as “others” who must be civilized creates crucial role for Race (1) Justifies “humanitarian” violence for saving non-euros from themselves (2) Northern Scholars and Northern Institutions set standards of understanding and approach to IL d) Differences between 3rd World areas (i.e. gender, class, race, religion, etc) 2) Kohler a) Global Apartheid (1) Poorer half own <1% of wealth (2) 90% of household wealth in North America, Europe, and Select Asian Pacific nations b) Structure (1) De Jurais Regime SA Apartheid legally designed inequality (2) De facto results of global legal system c) Did not account for important power centers in 3rd World (BRICKS) d) POI “North” has many sectors of extreme poverty, “South” has many sectors of wealth/power e) North Policies: Violate justice and fairness, basic needs, human rights, equality, democracy, racial nondiscrimination 3) Feminist Approach a) Organizational Structure of IL: (1) Women invisible, male perspective dominates (2) Men primary law makers (a) Impacts content of IL (b) Overlooks needs of women regulation of conflict and trade/economics (3) Lack of Representation on IL Bodies b) Normative Structure of IL (1) Assumption that law norms are neutral fails to recognize that law may impinge differently on men and women (a) Women’s experiences tend to be silenced or discounted (2) Private/Public Divide continues (a) Private sphere territory seen as hands off (b) i.e. Labor home work not accounted for, despite enormous amount performed 4) Falk – “The World Order Between Inter-State Law and the Law of Humanity: The Rule of Civil Society Institutions” a) Transnational Non-government (i.e. Amnesty International) voluntary associations of citizens using information of abuses of citizens to further Law of Humanity b) Activation of Peoples to pursue their emancipation from oppressive structures of government? c. Is IL really law? Yes, but functions differently from domestic legal order 1) Vertical: a) Domestic legal order has enforcement capacity , legal decisions can be enforced 2) Horizontal: a) IL not hierarchical as a de jure matter b) Legally, IL is a State system based on formal relations between states 3) IL obeyed most of the time in ways we don’t think of 4) Non-Compliance Issues: a) Sanctions Difficulty, should it be codified? (1) Failure to systematically address sanctions remains (2) Mobilization of shame (3) Unilateral/bilateral sanctions by states, institutions, companies, UN (4) Int’l Criminal courts direct responsibility of individuals 5) Viewpoints: a) Critics real forces behind IL is politicas b) Positivists: (1) John Austin no such thing as IL because no 3rd party “command” that is routinely enforceable (2) Hart set of rules w/o rules of recognition therefore not law (3) Caveat: not lacking “primary rules of obligation” therefore Law in content, but not necessarily form d. Koh – “Why Do Nations Obey IL?” 1) Rational Interests obtain interests in wealth/power/etc 2) Kantian a) Franck’s notion of Rule-Legitimacy b) Causal Role of National Identity 3) Constructivists: identify formation and Int’l Society 4) Transnational Legal Process a) Process: (1) Interaction (2) Interpretation (3) Internalize b) Evolutionary Process c) Compliance Theory based on trans-national legal process d) U.S. IL part of OUR law i.e. recognizing treaties II. Sources of International Law A. Overview: 1. *Article 38 of Statute of Int’l Court of Justice* a. Sources: 1) Int’l Convention Rules 2) Int’l Customs 3) General Principles of Law 4) Other b. Primary Sources: Treaties, Custom, General Principles of Law 1) Formally equal, but not equal in effect c. Secondary Sources: Judicial Decisions, Teachings of the Most Highly Qualified Publicists of the Various Nations 1) Judicial decisions strange since many countries don’t follow precedent d. Not Included: General Assembly Resolutions 2. Article 21 of Rome Statute a. Compared to Article 38 1) More specific, clearer about hierarchy of sources a) Logical for a criminal court 2) Civil and Criminal Law compromised by drawing judges from both speres 3) Specific to ICC, Art. 38 still the Keystone B. TREATIES 1. Definition: Int’l agreement usually concluded between states in written form and governed by IL, can be embodies in a single or multiple documents, can be called many things (protocol, covenant, pact, etc) – 1969 Vienna Convention a. Essentially: 1) Writing 2) Between states 3) Covered by IL (not a contract) b. Strength: Exceptional usually result of extensive deliberation and negotiation 1) Agreements freely made between states should be “binding” 2. Generally a. Types: bilateral, multilateral, multilateral open to Ratification by every State in the world b. Types of Regimes (obligations): 1) Law making broad norms 2) Contractual 3) Legislative Treaties create legal obligations to states that are non-parties to a treaty c. Positivists – love treaties because state not bound by a treaty unless they choose to be party to the treaty 3. Creation a. bi-lateral: come together, negotiate b. multilateral: come together (usually the UN), expert text by non-state read, “1st reading” used to go over and create a first draft with bracketed text (unsettled issues), adopt by consensus (bad b/c lots of power if dissentingwaters down the purpose) c. Can take years, Sausage Metaphor applies, sometimes works fast if issue seen as urgent or emergency d. Adoption: agreed upon text that is considered the treaty, not yet entered into 4. How to be Bound: a. State signs the treaty 1) All you need in some cases 2) Sometimes – signature pending ratification i.e. Senator 3) Article 18: States that have signed but not ratified cannot take concrete steps to defeat the treaty a) Sort of an Interim Status b) Exceed/Accept to the Treaty simply express desire to be bound to treaty b. Recap 1) Once bound, must follow treaty practice sum suvante a) If in need of ratification after signature, interim obligation not to take steps against the treaty 2) Treaty law tries to promote stability if state enters into treaty, cannot renege when new regime enters domestically 3) Entry into force treaty actually representing a set of legal obligation for the consenting parties a) Usually set within treaty 5. Amendment of Treaties: formal process similar to original process a. Takes time to change, which is good for stability purposes b. Some protocols can be enacted to make amendment swifter 1) Prolectic event can be placed in a treaty so a future event triggers a change in obligation 6. Termination a. Sometimes limited lifetime b. Sometimes decided out of date c. Rules for denunciation and withdrawal 1) i.e. fundamental change of circumstance, “higher law norm” d. Protocol creates fairness and stability all states give up something and get something 7. Interpretation a. Ordinary Meaning Textual Approach literal language of the treaty 1) Pro: no judicial activism 2) Con: Can be hard b. *Ordinary Meaning Contextual Approach* 1) Mainstream approach, ordinary language keeping in mind the purpose of the treaty (negotiations, agreements, etc) c. Teleological or Ultimate Purpose Approach 1) Interpret Language so as to make it work a) Pro: Function b) Con: Judicial Legislation (Judge deciding what treaty meant) d. New Haven School of IL Policy goals drive treaty interpretation 1) **Professor B does not like this approach to interpretation 8. Importance a. Malanczuk, Akehurst’s “Modern intro to IL” 1) States more interdependent than ever 2) Treaties are the major instrument of co-operation in IR therefore instrument of change b. McDougal, Lasswell, & Miller “The Interpretation of Agreements and World Public Order 1) Agreements are indispensable for establishing a stability in people’s expectations lessens predisposition to arbitrary violence 2) Modest Minimum World Order “constitutive process” develops through agreement including whole of people’s behavior a) Agree to base values allows work towards global goals in producing/distributing new values 3) Agreements even more important as world becomes flat 9. Definitions, Nature, and Significance a. Ott,“Public Int’l Law in Modern World” 1) Types of Treaties: Natural, Contractual, “Law-making,” “Legislative” b. Kelsen, “Principles of IL” contractual, creates norms (through contractual obligations) c. Kaplan & Katzenbach, “Political Foundations of IL” 1) Contract of various domestic legal systems 2) Bi-lateral and not legislation 3) Mutual advantage/reciprocal rights “bargain concept,” governments subject to politics and therefore double as international legislatures 4) K overcome if not in government’s best interest (or an individual(s) political interest) 5) Legislative analogy helps see how treaties are more than a K d. Bilder, “Managing the Risks of International Agreement” 1) Agreements result of centuries of human norm evolution 2) If countries didn’t think important, would not enter into so many and spend so much time 3) Often viewed as foreign policy told (broader than legal thinking) 4) Different degrees of commitment view agreements to be performed in Good Faith consistent with the realities surrounding it 5) Consider Long Run policy a) Constantly changes as circumstances and expectations change e. Charlesworth & Chinkin, “Boundaries of IL: A Feminist Analysis” 1) Consent as basis of obligation “male” in contrast of communitarian value alternatives 2) Low level of women in treaty making process ensures International matters of concern defined by men 3) Not many women in IL making body ideas consistently being considered and evaluated from single gender perspective 4) NGO’s make limited progress: a) Excluded by some governments b) Not consistently present c) Not allowed at drafting sessions unless specifically invited 5) Many governments use reservations to limit women’s rights 10. Conclusion/Acceptance a. Starke’s International Law 1) Negotiation and Adoption 2) Authentication, signature, and exchange of instruments 3) Ratification a) Ratification and Municipal Constitutional Law b) Absence of duty to ratify c) Obligation not to defeat the object and purpose of a treaty prior to its entry into force d) Exchange or deposit of ratifications 4) Accessions and adhesions 5) Entry into force C. CUSTOM 1. Role: a. Helps define legal rights and wrongs not covered by treaty b. Paves way for codification of standards c. Facilitates treaty interpretation by filling d. Helps define rights & duties of states not party to treaty-based Int’l Organizations e. Give International Tribunal jurisdiction where lacking under conventional law 2. Scholarly Opinions a. Venkata Raman 1) Legislation and adjudication do not exhaust process of “law” 2) Even where formal institutions provide guidance, lawmaking process can’t be described w/o acknowledging customs 3) *Lawmaking is “comprehensive and continuing process of communication comprising primarily of: a) an agreement process b) a process of formal enunciation through parliamentary organs, AND c) the customary process” 4) **Legal assumptions based on uniform practices b. Judge Hudson Distinguishes law making customs from rules of courtesy/convenience customs 1) Practice a) Concordant Practice by a # of states b) Continuation over considerable period c) Conception that required by IL d) Acquiescence in the practice by other states 2) Opinio Juris what states “think” c. Ott, “Forming Customary Law” (Positivist Position – states don’t have to follow rules is has openly objected to) 1) Customary Law = habitual activity observed as a matter of goodwill at the discretion of the particular state. Find customary law by: 2) Examine the evidence of state practice a) Sources: (1) Foreign Relations conduct documents (2) General expressions of state’s view i.e. official manuals (3) Both: (a) Actual government decisions (b) Legislation/judicial decisions of higher state courts (4) Both: (a) Comments on draft treaties (b) Voting in international bodies (5) Both: (a) Language used in treaties (b) Pattern of treaties b) Problem: states may act out of momentary interest that causes variance from the norm 3) Determine whether required elements present and combined to general law a) Element 1 Opinio Juris: belief that certain practice is obligatory as a matter of law (1) Asylum Case Rule: practice if expression of a right belonging to one party and a duty to the other (2) Lotus Case Rule: cannot infer opinio juris unless stated involved are “conscious of having a duty” (3) Problem: Forms new laws based on assumption that the law is already legally binding (4) Practicality: infer opinio juris unless clear indications to the contrary b) Element 2 Duration (something totally accepted, something brand new) (1) Short duration may be offset by strong showing of other elements c) Element 3 Uniformity and Consistency (1) Possible for SOME and still be a RULE (2) Practice of states not varied and no discrepancies d) Element 4 Generality and whether practice is fairly widespread among a majority of states (1) Universality not required (2) Persistent objector – not bound by particular custom (3) Subsequent objector – not able to escape being obligated unless other affected states acquiesced (a) If no persistent or subsequent objection, then bound w/o acceptance d. D’Amato 1) Claim is not an act articulates legal norm by not material component of custom a) Claim not act until it takes enforcement action 2) No precise number of acts or restraints necessary to satisfy material element of custom formation 3) Persuasiveness depends on number of precedents e. Higgins 1) 3 Views a) Rules Based – IL dependent upon power (get away with rule breaking) b) Process Based – authority & control = law non-compliance over time removes normative status as a norm c) Grey Area – if no higher rules (i.e. No Torture), cannot be treated differently from ordinary rules in practice 2) Analysis Tools of Custom a) New Norm Requires both: (1) Practice forms, changes, and kills norms (a) No “high normative status” needed (2) Opinio Juris of normative status b) Norm doesn’t die unless majority of states withdraw both practice and opinio juris 3) Higgins believes customary law is a Process, not a set of rules (Jus Cogens preemptory norms (“the very big no-no’s”) a) Uses torture to show custom recognition despite violation since opinio juris still exists b) Legitimacy Issue? – acting outside law changes law itself. (1) Process Based: violations of customary norms way of changing the law (a) Higgins Claims Practice of torture is illegal, not actual practice of committing the act (2) Rules Based: violations reflection of power politics 3. Cases a. North Sea Continental Shelf Case (ICJ 1969) 1) Facts: Denmark and Netherlands want Shelf divided according to equidistant principal of Geneva Convention on Cont. shelf 2) Issue: Does treaty give rise to customary law? a) Consequence would be to bind non-signing parties 3) Argument: Article 6 accepted by opinio juris (binding on non-convention parties) 4) Problems with Argument: a) Equidistant principal comes second to agreed upon boundaries b) Contains special circumstances and controversies c) No opinio juris no justifiable interest of mandatory rule (1) *Not settled practice (2) **No evidence of belief that practice is obligatory by the existence of law requiring it (legal obligation) 5) Holding: Treaty possible starting source of customary law, but must satisfy Practice and Opinio Jurisrequirements b. Nicaragua v. U.S. 1) Facts: U.S. used military and paramilitary forces in Nicaragua 2) Issue: Do non-aggression pacts (both U.N. and OAS) create or deny opinio juris? Does custom law supercede the U.S.’s reservations to the U.N. Charter? 3) U.S.’s Claim: Custom Law & UN Charter are same therefore U.S. rejection of ICJ jurisdiction etc prevents suit 4) Nicaragua Claim: Customary law not necessarily identical in context and application of conventional rule 5) RULES: a) Court must find existence of opinio juris confirmed by practice to establish customary law b) When conduct inconsistent with rules, treat as breach of rules, not new rule 6) Holding: Principle of non-use of force is customary law unconditionally. UN/OAS does not limit UN Charter codifies Customary Law against force a) “universal international law” 4. Scholarly Opinions Related to Universality a. D’Amato 1) Universality of Custom – “Objectivist” or “Sociological” View a) Principle: Reliance on precedent drives universality of custom sets expectations 2) Restrictiveness of Custom – “Participatory” or “Volunteerest” use a) Principle: only nations that participates in custom formation process obliged b) Favored by 3rd World 3) Problem: Typically, conflicts arise b/c states haven’t participated in custom formation process a) Leaves us w/little relevant IL b. Wang 3rd World advocates gradual rewriting of IL to reflect global post-WWII change c. Janis 1) IL Faults: a) Diverse state practices makes consistency hard to find b) No assurance different decision makers (i.e. judges) will reach same conclusions c) Process of making customary law creates conflict d. Chinkin, “Gender Deficiency” 1) IL Leaves out many and varied practices a) No customary law condemning violence against women since non-conferring states disregarded b) Violence against women e. Kelly f. Roberts D. General Principles of Law 1. Article 38(1)(c) a. Janis’s Views of different General Principles 1) Natural Law – beyond state consent 2) Positivists – requires state consent/practice 3) Comparative Law – found in all systems of law (most common) b. Lauterpachy 1) Residuary source for rules that are unwritten a) Custom difficult to find (Practice & Opinio Juris) b) General principles just have to find Codified Law 2) Gap Filler when no principle found in customary law or no treaty is on point a) i.e. no existing rule, country free from a rule, or existing rule incomplete 3) “Civilized Nations” – subjective language now means organized sovereign states of the world (not non-state entities) 4) Reality courts cite when principle in question found in most every country in the world (Civil, Common, Islamic) a) Usually procedural, not substantive 5) Scharter Principle must make sense in Int’l arena a) i.e.. specific crimes (murder) not appropriate at International level in their simplest state (1) Certain types of these crimes appropriate (Genocide) b) Generally Accepted IL Noted: (1) Intrinsic Law: Engagement Violation requires reparation, Can’t take advantage of own wrong, Can’t transfer more than you owe (2) Municipal Law: Res judicata, indirect evidence, prescription c. Distinction between General Principles of Law and Equity general notions of equity takes extra-legal notions (fairness & justice) into legal decision making (not codified) d. Jus Cogens preemptory law accepted by states as whole with no deviation allowed unless restructured 1) *Extremely important values, yet no list 2) Legal Consequences: Trump persistent objectors, voids an already established Treaty, can raise a General Principle in the adjudication process e. Charlesworth 1) Deficiencies: a) Gender principles of states biased against women therefore using it as a basis for IL institutionalized gender bias b) Women’s rights not part of jus cogens 2) Potential Uses a) International organizations can step in to make gender roels part of general principles/jus cogens b) Response to emerging contemporary issues 3) Approaches to solving Problem: a) Identify gender problems b) Make feminist rules universal, not state specific (i.e. Food, reproductive freedom, violence, equality, etc) c) Incorporate female rights into jus cogens 4) Highlights problem between Naturalists and Positivists a) Overarching law vs. what states consent to E. Subsidiary Sources of IL 1. Judicial Decisions a. Compromise between Civil and Common Law Counties 1) Art 59 no binding force of Judicial decisions except between the parties b. Reality World Court follows own jurisprudence to create expectations etc c. ICJ Judgments, ICC, International Criminal Tribunaals …etc and even some domestic court decisions d. Critique: Reality is the courts are making law 2. Teachings of Highly Qualified Publicists a. Works of writers helps understand primary sources of law direct evidence, not speculation, taken into account b. Historically important c. West Rand Central Gold Mining authors more often write about what the law should be and not what it is d. Schachter writers represent their own state, get around be citing very broad sources 3. Section 38(c)(2) if parties agree court could decide what is fair according to the facts and not the law rarely happens. Different from equity since fact specific. F. Equity 1. Article 38(2) – Article 38 “shall not prejudice the power of the Court to decide a case ex aequo bono [according to what is right and good], if the parties agree thereto” 2. Ott, a. Equity = Justice therefore shaped by norms of society 1) Changes with the changes in society over time (fluid) b. Legal determination shaped by general principles of equity that may be part of law but not codified 3. Shacter a. 5 Uses of Equity 1) Equity as a basis for “individualized” justice tempering the rigours of strict law 2) Equity as consideration of fairness, reasonableness and good faith 3) Equity as a basis for certain specific principles of legal reasoning associated with fairness and reasonableness: to wit, estoppel, unjust enrichment, and abuse of rights 4) Equitable standards for allocation and sharing of resources and benefits 5) Equity as a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth b. Upside: Fairer result from flexibility in the law c. Downside: Subjective 4. Lapidoth a. Diversity of opinion on “justice” etc hinders equity’s role between nations b. General principle or form of interpretation? G. Other “Sources” of International Law 1. UN Charter and Other Intergovernmental Organizational Resolutions a. Note: all countries represented with equal vote and no veto power, gives everyone an equal voice b. Ott 1) Possibilities: a) No legal effect for UN Charter Resolutions b) Authoritative interpretations of UN Charter enforceable as a treaty c) Helps create customary law agreement shows opinio juris or creates practice that leads to customary law d) Quasi-Legislative Effect if so unanimous in an area devoid of law (i.e. 1960s space resolutions) 2) Strength of status depends on: a) Language b) Voting records c) Whether resolution repeated or not c. Higgins: Security Counsel Resolutions not strictly sources of IL but ad hoc sources 1) Security Counsel may create obligations, not necessarily law, unless leads to customary law 2) Norms to Consider a) subject-matter of the resolutions in question b) whether binding or recommendatory c) the majorities supporting their adoption d) repeated practice in relation to them e) evidence of opinio juris d. Tunkan: when security counsel repeats over time, becomes law e. Van Hoof – “Other Source” approach 1) Resolutions constitute a separate, independent source of international law 2) Sohn: unanimously approved General Assembly declarations may be seen as “leading to the creation of new international law applicable to all states” and representing “a new method of creating customary law.” a) Van Hoof’s response: drops the requirement of “usus [i.e. practice]” and that therefore one is faced here with “not just a new method of creating a customary international law, but rather a new method of creating international law altogether f. Soft Law approach (middle ground between hard law and non-law) 1) General Assembly resolutions and other such prescriptive communications do not create full-fledged rules of IL capable of fitting into the traditional “sources” categories but nonetheless fulfilling “at least some, if not a great number of the criteria required for rules to be considered rules of IL and [which therefore] cannot be put aside as non-law” van Hoof 2) Downside: challenges legitimacy of IL sources 3) Upside: Useful if no other standard on point 4) *Reveals legal value of ambiguity 5) Indicates potential for IL to change over time, also reveals incompleteness of IL g. Recap-1) Practical Questions to consider: a) Who is going to decide the case? b) Who is making the law? 2) Purpose: Legal norms do not simply exist; they were manifested in a continuous process of evolution and hence emanate from several different sources 2. Non-Conventional Concreted Acts and Declarations a. Aust: “Lawyers practicing in foreign or other ministries deliberately utilize instruments which employ carefully chosen terminology to indicate that, rather than create international legal rights and obligations, the intention of the participants is to record no more than mutual understandings as to how they will conduct themselves.” 1) “such instruments have been variously described as ‘gentlemen’s agreements,’ ‘non-binding agreements,’ ‘de facto agreements’ and ‘non-legal agreements’” III. The Application of International Law A. Application of IL at the International Criminal Court 1. Tribunals: Rwanda and Yugoslavia a. Weakness: dealt mainly with actions of mid or low level personnel, most leaders responsible for war crimes escaped being brought before the court b. Strength: reaffirmed/advanced principles of criminality and individual accountability laid down at Nuremberg 1) Not triggered by massive human rights violations, but by “threat to international peace and security” under Chapter VII of the UN Charter 2. ICC a. Creation 1) Rome Statute a) U.S. signed and subsequently unsigned b) U.S. “Hague-Invasion Act” allows U.S. to rescue any soldier held by the ICC (1) State on territory offenses allegedly happened, if ratified ICC, extends ICC jurisdiction b. Procedural Limit: 1) Can only hear cases which occur after 1 July 2002 2) Operates on Principle of Complementarity a) ICC will have jurisdiction only when national legal system is unable or unwilling to carry out a genuine investigation or prosecution of persons alleged to have committed international crimes. b) Safety Net, in effect c. Fears: use for a political advantage (especially against powerful countries like the U.S.) 3. Dusko Tadic Case a. Facts: Serbs attacked Croats and Muslims, put them in concentration camps, where they were tortured/murdered/sexually abused 1) Tadic accused of being part of violations: a) 1991 – banned Muslims from his pub, lead Serb party in town. b) Bosnia breaking away from Yugoslavia, has slim Muslim majority, then Bosnian Serbs trying to break away from Bosnia, Tadic’s village is in the middle and has 15,000 Muslim residents (1) 2,000 Muslims killed in artillery siege, then round up rest of Muslims, 5,000 subsequently executed c) Tadic pointed where to bomb and who to execute (intellectuals etc) d) Tadic spends a lot of time in camps because pub destroyed economically b. Charges: Crimes against humanity, Grave Breach, Violation of the Laws or Customs of War 1) Crimes Against Humanity – Customary IL – attack on civilian population, widespread and systematic 2) Grave Breach – Treaty IL – certain heinous violations of the Geneva Conventions, comes from IL that applies only to certain types of conflict c. Applicable Articles of ITCY Statute: 1) Article 2 – Grave Breaches regime of the Geneva Conventions a) Applies only to: (1) Armed conflicts of an international character (2) Offenses committed against persons or property regarded as “protected” (a) “Protected” = civilians in the hands of a party to a conflict of which they are not nationals 2) Article 3 – Customary International Law that compromises ‘laws or customs of war” a) Acts committed within the context of an armed conflict (international or not) b) Acts have a close connection to the armed conflict c) Acts are committed against persons taking no active mart in hostilities 3) Article 5 – Crimes Against Humanity (Customary Law) a) Must occur in context of an armed conflict, whether international or noninternnationa in character d. Prosecution must prove: 1) Armed Conflict 2) Acts occurred within the context of that conflict 3) Acts committed against protected persons e. Holding: guilty, except for Article 2 1) Majority: Article 3 & 5 a) Armed Conflict existed at all times in relation to offenses b) Victims were members of protected group c) Offenses charged committed within context of Armed Conflict: (1) Actions part of ethnic cleansing goal (2) Prisoner policy determined by Republika authority 2) Dissent: Article 2 applies a) “at all times relevant to the indictment, the armed conflict in opstina Prijedor was international in character and the victims of the accused were persons protected by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War” find guilty of Grave Breach b) The Federal Republic of Yugoslavia (Serbia and Montenegro) “effectively controlled” the VRS f. Final Holding: Guilty on Articles 2, 3, and 5 1) Crux: What kind of conflict was it? a) Dissent: International armed conflict since Bosnian-Serbs surrogate for Serbian army b) Majority: only domestic law can be applied since within own country (1) Policy on International Necessity: limit inter-state conflicts so large conflict doesn’t result (a) Yet most post-WWII conflicts have been internal Sovereign state issues 2) Test: Does Yugoslav Army still have effective control of new Bosnian-Serb Army? g. Appellate Decision Dissent: 1) Evidence supports that the Yugoslav Army had effective control of the military group Yugoslavia vs. Bosnia becomes Bosnia-Serbs vs. Bosnia 2) Yugoslav army supplied, paid, communicated with, and essentially continued there presence in the region, just under a different name 3) Advocated Test: Dependency and Control 4. Individual Criminal Responsibility a. Culpability Requirements: a) Planning b) Prepping 2) Executing Actions b. ICTY Article 7 Requirements: Planned Instigated, Ordered, Committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime… shall be individually responsible 1) Look to Neurembeg & Tokyo: Knowing Standard a) Principal b) Accessory or aided/abetted c) Consenting part d) Connected w/plans e) Member of organization or group connected (not adopted by ICTY) c. Academics 1) Meron: Todic advanced law, interest in Humanitarian Law, put War Crimes into IL scene 2) Drumbl: less optimistic than Meron a) Victor’s Justice b) International Criminal Law a collective problem, not an individual problem (1) Individual responsibility not appropriate c) Some justice or all justice? d) International criminal tribunals may allow attention to be deflected from the deeper causes of the conflict d. Discussion 1) Truth and Reconciliation Commissions: confessions in exchange for amnesty 2) Universal Jurisdiction: invoked to deal with alleged perpetrators of mass atrocities a) Victim Nationality/Location of the crime supposed to be irrelevant (i.e. torture) b) Difficult to enforce (i.e. Pinochet) B. Application of International Law In General 1. Application of IL in International Plane: a. Generally: 1) Diplomatic Arena foreign office to foreign office 2) Parliamentary-Diplomatic through recourse to formal conferences 3) Parliamentary Arena legislative/quasi-legislative assemblies 4) Executive Arena secretariats of International Organization 5) Measures of Self Help b. Academics 1) Chen a) Diplomatic negotiations (bi-lateral) generally the accepted method of solving differences b) Third Party Procedures exist when bilateral deadlock: (1) Good offices, Mediation, and Conciliation; Pre-emptive regulations; judicial processes (2) Limit – Consent of both parties (ICJ) c) UN obligation: peaceful resolution (1) Once reaches security counsel (Peace Threat) level, 3rd party solutions have generally failed d) SELF HELP Unilateral coercive measures (1) Requirements: (a) Necessity all good faith efforts to solve peacefully failed (b) Proportionality appraise by all relevant factors (c) Last Resort e) Current Trend in International Legal Norms: prevention rather than correction (treaties, intergovernmental organizations) 2) Parton: ICJ a) Peaceful settlement b) Progressive development of IL c. Jurisdiction 1) Contencious (State vs. State) a) Meant to be binding, but no enforcement b) All parties to UN Charter party to Statute of ICJ automatically (1) Party to ICJ not enough counties must consent to ICJ jurisdiction (2) Article 36: ¶1 Both parties refer case to ICJ (3) Ratifying treaty that directs dispute to ICJ (subject to Reservations) -? Considered consent (a) ¶2 states regard ICK as compulsory in certain situations noth countries have made declation opening themselves to jurisdiction (b) Option Clause agreements to compulsory jurisdiction (c) U.S. interpretation of Treaty of IL, existence of potentially significant Fact, nature/extent of reparation (d) Reservations agreements with other countires to settle issues via tribunals, disputes determined by U.S. to be within domestric jurisdiction of U.S., disputes over multi-lateral treaties unless all are party to or U.S. consents (e) ¶5 Declaration of compulsory jurisdiction of ICJ predeseccor that have not been revoked (f) States acquiece to case (Reply to complaint w/o contesting jurisdiction) (g) “Forum Proragatorum” 2) Advisory respond to legal questions from authorized UN agencies (not binding, but usually authoritative) d. Many different international courts 1) Problem: no hierarchy for these courts a) No precedent/stare decisis requirement e. People’s tribunals where NGO’s and Individuals putting together non-judicial tribunals giving press to issues 2. Application of IL on the National Plane a. Generally: 1) Issue = how do states rationalize interaction between International Law and Domestic Law 2) Monism IL and DL part of same legal system. Within that legal system IL is hierarchically superior 3) Dualism IL and DL separate systems, IL only part of DL if codified by national structure’s municipal law authority b. Academics 1) Starke: defines monisim and dualism 2) Brownlie a) Dualist: IL and DL regulate different subject matter (1) Neither legal order has the power to create or alter rules in the other (2) When DL provides that IL applies in whole or in part, merely an exercise of authority of DL b) Monism: (1) Lauterpachy – supremacy of IL even within the DL, coupled with welldeveelope views on the individual as a subject of IL (a) Antipathetic to the legal corollaries of existence of sovereign states (b) Reduces DL to status of pensioner of IL (c) IL best available moderator of human affairs (d) Logical condition of the legal existence of states and therefore of DL within the sphere of legal competence of the states 3) Borchard: IL enforced through domestic practice a) IL enforced via restitution and damages if inconsistent with domestic law b) Executive/Legislature responsible for application of IL 4) McDougal -New Haven Approach – IL as a process, not a set of rules a) IL Problem: “reciprocal impact or interaction, in the world of operations as well ass of words, of interpenetrating processes of international and national authority” b) Effective power is the factor which actually shapes authoritative decisions (1) Individuals, private associations, parties, and pressure groups have authority (a) Little respect for state boundaries c. Interrelation between IL and DL in practice: 1) Monist approach: Germany a) IL takes precedent over DL b) Strict Monism also encourages German action in creating IL c) Civil Systems tend to be more monist d) Problem: prevents equitable remedies in some situations (1) Local action can be more fair based and flexible 2) Dualist approach: Australia a) IL not effective unless codified by domestic law b) Strict Dualist Common Law tradition c) Yet Mabo v. Queensland gives IL an influence (1) Teoh: Ratification of IL creates expectation that executive will act in accordance with convention (2) Limit: not legislatively enacted (3) Response: legislature codified requirement of codification of IL to be applicable (a) Solidifies sovereignty 3) Mixed Dualist-Monist Approach: The United States a) Generally: treaties supreme law of land yet subject to Constitution and Subsequent Federal Statutes (1) Pact sunt servanda good faith duty to comply with treaty obligations (a) Pro: establishes expectations (b) Con: limits sovereignty b) Charming Betsy Presumption: where possible, U.S. courts to read IL as close to DL as possible (1) Anti-democratic? criticism of sovereignty trumping c) The Impact of International Agreements upon U.S. law (1) Weston – “Treaties” (a) Treaty – usually denotes only those international agreements that are concluded by the federal government and ratified by the President upon receiving the advice and consent of the Senate (2/3 Majority) (i) RUDs contingencies president can/may decline to Ratify a treaty (ii) President able to suspend/terminate treaties w/o Senate (b) Reid v. Covert – treaties may not controvene any constitutional prohibitions like Bill of Rights and 13th, 14th, & 15th Amendments (c) Treaty binds courts when self-executing or codified (i) Self-executing U.S. concept, require no legislation to be operative in the United States (2) Weston – “Executive Agreements” (a) Types: (i) Treaty Based – same validity and effect as the treaty itself (ii) Congressional Executive Agreement – based on either a prior or a subsequent act of Congress authorizing the making of the agreement or providing general authority for the executive action needed internationally to implement the legislation in question (iii)Solo – entered into exclusively on the basis of the President’s constitutional powers as chief executive and commander-in-chief (b) Issues: (i) Can congress legislate to prohibit or otherwise limit sole executive agreements (ii) Whether president alone may make an agreement inconsistent with an act of Congress, or alternatively, whether a sole executive agreement may supersede earlier inconsistent congressional legislation – prevailing view = solo executive agreements inoperative as law to the extent they conflict with a prior act of congress in an area of congressional competence d) Customary IL before U.S. Courts (1) The Paquete Habana, The Lola (a) Facts: U.S. took fishing vessel as spoil of war (b) Issue: with no treaty/federal stance, can IL govern? (c) Holding: Ancient uses of civilized nations used (customary law), fishing vessels traditionally exempt from prizes of war (2) Garcia-Mir v. Meese (11th Cir. 1986) (a) Facts: refugees detained under authority of Secretary of State (i) Background: Castro let Cubans out 124,000 undocumented migrants got out, 23k had criminal records (though some for politics) (ii) Two Groups: 1 never given parole; 1 given parole but subsequently revoked (b) Plaintiff’s Claim: Executive Act from Secretary of State not sanctioned by President himself therefore against Paquete Habana (c) Issue: whether an affirmative legislative grant of authority to detain has been granted (i) No affirmative grant to justice department to detain without headings since applicable statute did not expressly authorize indefinite detention (d) Court: Look to Executive Act(s) (e) Holding: Constitution provides president with ability to delegate his authority to executive departments to act on his behalf (i) Group 1 specific congressional authority granting authority to detain (ii) Group 2 Executive Act (Secretary of State) deemed sufficient to find IL not controlling (f) Distinguish between Paquete Havana: executive actors complied with IL but lower officials ignored, versus unilateral act by executive (g) Theme: DL and IL conflicts create problems PROBLEMS OF INTERNATIONAL LAW AND WORLD ORDER: ambiguousness of answers to current problems is a result of the worldwide controversy created by unprecedented peril of our time; universal solutions have yet to be found IV. Problems of Conflict Prevention -Main Issue: the legality of outside intervention in “internal” conflict and the role of the United Nations and regional organizations in reacting to such conflict A. Recognition of States and Governments 1. Frowein – “Recognition” a. Recognition of States 1) Typical Requirements a) Permanent Population b) Defined Territory c) A Government d) Capacity to enter into relations with other states 2) Modern Requirements: effectiveness of the separation of forcible separation from a mother-country a) Requires independence in relation to some State which for political reasons wants to use the new State which it has helped come into existence b) Must not gain independence brought about by a white minority government in a former colonial territory (Rhodesia) 3) Modes of Recognition: a) RULE: only unequivocal act that forms full recognition is establishment of full diplomatic relations b) De facto (implied): implies hesitation on party of recognizing government either as to the coming into existence of the new state or its territorial situation c) De jure (express) 4) Legal Consequences a) RULE: Recognition does not create a state. It only confirms that an entity has reached statehood. b) Anzilotti & Kelsen constructive meaning based on legal consequences of a specific factual situation c) Lauterpachy recognition constitutively settles dispute of statehood b. Impact of UN on Recognition of States 1) UN membership weight cannot be denied 2) UN a forum to coordinate non-recognition c. Recognition of Governments 1) RULE: There must be a special reason to question recognition of a new government 2) Requirements: a) Control “effective control” not brought about by foreign intervention (if revolutionary government, only legally recognizable if conflict outcome clear and former government’s authority reduced to negligible area) b) Consent or Acquiescence of People c) Comply w/International Obligations (does not have to create new obligations/relations) simply “diplomatic recognition” 3) Modes: more likely recognition is implied i.e. continuation of diplomatic relations 4) Legal Consequences: Upon recognition, cannot question right to represent the state 5) Evaluation: Abuse possible if recognition based on ideological and political motives 2. Tinoco Case arbitration decision by Chief Justice Taft a. Rule: non-recognition by other nations usually appropriate evidence that independence/control entitling classification as state b. Exception: Recognition vel non determined by illegitimacy of origin, not de facto sovereignty c. Requirement: Government established in such a way that all within its influence recognize its control and no opposing government assuming to be a government in its place 3. Notes: a. Effective Control: accepted as guide to recognition of governments b. Tobar Doctrine: Governments that come into power w/o benefit of elections or by extra-constitutional means should not be recognized c. Estrada Doctrine: change of government an internal matter for each state, foreign states should ignore revolutions and keep their diplomatic missions accredited to whoever may effectively operate the government at any given moment d. Trend: abandon recognition “establishment of relations does not involve approval or disapproval but merely demonstrates a willingness to conduct affairs with another government directly” e. UN has changed from accrediting Effective Control Regimes to a Democratic Requirement B. Civil War 1. Three Levels of Crisis a. Rebellion – challenging faction seems capable of rapid suppression by normal internal security procedures 1) Implications a) External help to the “rebels” illegal b) Foreign assistance to incumbent government legal b. Insurgency – more sustained and substantial intrastate violence than “rebellion”, less sustained and substantial intrastate violence than “belligerence” 1) Implications a) Permits outside states to participate in the internal conflict without finding themselves “at war” b) “Insurgency” classification often used to protect the economic and private interests of nationals and to acknowledge political facts arising from particular successes of insurgents c. Belligerency – essentially the same as a war between independent sovereign states, giving rise to definite rights and obligations under IL 1) Implications a) Outside state has formal option of joining one of the “belligerents” against the other(s) or to remain strictly neutral b) Compatible with UN system’s fundamental commitment to peaceful conflict resolution? 2) Requirements (Lauterpacht) a) Armed conflict of a general character (not purely local) within the State b) Insurgents must occupy and administer a substantial portion of national territory c) Insurgents must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority d) There must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency 2. Academics a. Cassese “IL in a Divided World” 1) States prefer classification as NOT International Conflict a) Existence of tribunal feuds or other forms of conflict in many 3rd world states, particularly in Africa, where the arbitrary borders decided upon by colonial powers are likely to lead to secession b) The growing tendency of Great Powers to replace direct confrontation with war by proxy, through support for “loyal” or “friendly” political and military groups in small or middle-sized countries 2) States view of Insurgents a) Currently: rudimentary (1) Theory: If all members of the international community were to decide that a certain insurrectional party is devoid of the requisite conditions, that party would not acquire any international status (2) Reality: (a) There will always be one or more States inclined to recognize certain rebels (b) Even other states may at a certain point find it useful to concede that a group of insurgents has become a legally independent subject 95 b) Duty bound to refrain from supplying assistance to rebels (1) International regulation looks on insurgents with disfavor (2) International regulation grants incumbent Government right to enlist foreign help for wiping out rebels c) Only very few rules address themselves equally to rebels and to States 3) The Point: a) Insurgents state-like, BUT b) Transient and have limited international capacity in two respects: (1) Only a few international rights and duties (2) Only “associated” to a limited number of existing states 4) IL Regulations of fighting between incumbent governments and rebels a) RULE: rebels are not granted the status of lawful belligerents remain criminals infringing upon domestic penal law b) Effect: recognition of belligerency obsolete rebels in a greatly inferior position in relation to central authorities they fight c) Effects of Recognition: (1) Enabled to enter into international agreements and send/receive diplomatic missions (2) Duty-bound to respect foreigners living in the areas under their control (3) Right to demand respect for certain international humanitarian rules on armed conflict (4) Obligation to abide by humanitarian rules d) Rules mostly aim at protecting non-combatants only (1) Methods of combat not regulated (except for sparing civilians aim) (2) In practice, almost no restraints on armed engagements of Governments and rebels 5) Customary Law (Result of Spanish Civil War ruinous effects) a) Customary Rules of Armed Conflict: (1) Ban on deliberate bombing of civilians (2) Prohibition on attacking non-military objectives (3) Precautions must be taken when attacking military objects (4) Rule authorizing Reprisals against enemy civilians and consequently submitting them to the general conditions exacted for reprisals b) Required Characteristics of insurgents: (1) Organized administration effectively controlling a portion of the territory of the State (2) Organized armed forces capable of abiding by IL c) Reality governments and rebels rarely protect non-combatants (1) Possible explanations: (a) Civilians often take sides in domestic strife and actually contribute, at various levels, to the struggle (b) In many states (chiefly Africa) the population is split into conflicting ethnic and cultural groups which consequently do not share the feeling of belonging to one and the same country b. Charlesworth 1) Theme: Women disproportionately affected by armed conflict 2) Human Rights Abuses a) Problem: Women as needers of protection (1) Language: protection rather than prohibition of the violence (2) Rape not included in category of grave breaches of international humanitarian law b) Progress: ad hoc tribunals and ICC (1) Limit: engages sexual violence only when aspect of the destruction of the community c) Problems: (1) Distinction between state/nonstate actors (2) Focus only on sexual violence (a) Obscures protection of economic, social, and cultural rights of women (3) Economic sanctions significantly impact women and girls 3) Internal Conflict a) Theme: legal protection to combatants (men) and ignores civilians (women) 4) Individual Accountability 5) Take Away: tremendous advancement, but running criticism 3. Statutory Sources a. Geneva Convention 1) Common Article 3 2) 2nd Additional Protocol C. Unilateral Intervention 1. Higgins a. Definitions 1) “Intervention” = impermissible use of force 2) “Aggression” = military use of force and unlawful military use of force b. Practice: neutrality not realized c. Reasons to support existing government 1) Argue that what is going on in the country concerned is at the moment mere insurgency, mere rebellion neutrality not required a) Must keep in mind contemporary doctrine of self-determination 2) Arms may continue to be sold to the lawful government provided that the belligerency has not been recognized 2. Notes: a. Intervention at Request or with Consent of Legitimate Government (Brownlie) 1) Consent Request vs. Self-determination of People a) Consent Request legality confirmed by subsequent practice of UN members giving consent or acting in response to such a request/consent b) Self-Determination external assistance of rebellion may be lawful provided the rebellion is in pursuit of the exercise of the right of selfdetermminatio 2) Authority to request can be questionable a) Government set by IL as “effectiveness” b. Intervention Grounded on Right Conferred by Treaty 1) Concerns: a) What government represents treaty? b) Conflict between IL duty of non-intervention and assisting thru treaty c) Treaties a result of unequal relationship? c. Humanitarian Reasons (i.e. Kosovo) 3. Nicaragua v. U.S. a. Sources of non-intervention 1) sovereignty respect for political integrity 2) Opinio juris non-intervention backed by established substantial pratice 3) ICJ unilateral intervention tool of the powerful that limits international justice b. Holding: regardless of fact, unilateral intervention violates IL 4. Kosovo (Henkin) a. Theme: collective yet non-multilateral action appropriate when human rights violated and Security Council politics cause inaction b. Henkin’s View: illegal 1) Not because of human rights 2) Rather, justification for humanitarian intervention is often ambiguous a) Uncertainties of fact and motive b) Difficult questions of degree and “balancing” of needs and costs 3) No individual state can be trusted with authority to judge and determine wisely c. Solution: multilateral intervention d. Precedent: Iraq and Somalia 1) Not justified as “humanitarian” a) Internal war that threatened international peace and security b) Within jurisdiction and responsibility of Security Council e. Kosovo 1) Threatened International Peace without Security Council action 2) Multilateral intervention without Security Council authorization is still viewed as unilateral 3) NATO action “collective” humanitarian intervention “in common interest,” carrying out the responsibility of the world community to address threats to international peace and security resulting from genocide and other crimes against humanity a) Effective ratification by Security Council through approval of settlement f. Security Council 1) Strengths: ability to use force “in the common interest” 2) Weakness: current structure/procedures render Council seriously defective and may be unavailable to protect common interest g. New Practice in Kosovo 1) States/Collectives will act and challenge the Council to terminate the action permanent member in favor of the intervention could frustrate a termination resolution 2) Problem: Responsible action often not practical through Security Council 3) Solution: “gentlemen’s agreement” among permanent members, or by selfresttrain and acquiescence 5. Elshtain a. Views 1) Realists: POWER 2) Just War Thinkers: recognize good and bad in people a) Doing bad usually reaffirming basic good b) Cultures innately good but at war with eachother b. Differences 1) Power Calculations/National Interests VS 2) Mix of power/pathos c. Just war 1) Total War VS 2) Calculated Just War 6. Wheeler a. RULE: where there is only one case of past practice in support of a new rule, states can easily nullify it by acting against it in future instances 1) Kosovo-like practices needs repetition to reach opinio juris support b. Unilateral Intervention 1) Still illegal because of ambiguity 2) Unlikely permanent members of Security Council will become a humanitarian ‘coalition of the willing’ in future cases of gross human rights abuses (Russia/China) c. Limited Cases Justified exceptional cases 1) Problem: license for powerful to impose their values on the weak 7. Bowett a. Humanitarian Intervention more likely to: 1) Rescue nationals or permanent residents of the territorial state 2) Aliens have greater protection b. Article 51 allows self-defense where nationals require protection 1) Extends to property of nationals D. UN Intervention 1. Blackletter Law a. Article 2 requires peaceful solution of problems b. Article 4 prevents threats etc to any sovereign state c. No absolute ban on use of force d. Only undisputed legal exceptions to use of force: 1) Article 51 allows states self-defense if victim of an armed attack 2) Chapter 7 allows security council to authorize force to enforce charter, must be explicit 2. Franck a. Charter Law Pertaining to States’ Autonomous Use of Force 1) Failed because of following assumptions: a) Security Council expected to make speedy and objective decisions as to when collective measures were necessary b) States would enter into arrangements necessary to give an effective policing capability 2) Optimism: a) Negotiations (1) Never took place 3) Result: system adapted through: a) Uncoupled Article 43 from Article 42 b) Broadened authority of states to act in self-defense under Article 51 b. Collective Force Without Article 43 1) Korean War first example a) Council authorized unified military command headed by U.S. (1) “Coalition of the Willing” b) No such provision exists in Charter Council got creative in finding legal use of collective force c. The Viability of Article 51 1) Attempted to fix flaws by authorizing self-defense until Article 43 help arrives a) Failed: (1) Article 43 forces were not forthcoming (2) Conventional armed attacks envisioned never occurred 2) Threats: a) Subversive Warfare b) Weapon Capabilities c) Trend for Human Rights overcoming Sovereignty d. Self Defense Against Anticipated and Indirect Aggression 1) Definition: inherent right of self-defense only exercised “if an armed attack occurs against a member state” a) Wait until fired upon b) Dramatically changed with advent of nuclear weapons and ICBMs c) Problem: anticipatory self-defense may be necessary considering weapons capabilities 2) ICJ -ambiguous a) Prohibition of unilateral attack would be nullified if each state free to determine itself whether a perceived danger of attack warrants anticipatory action b) Yet, law that seeks to prohibit a state from protecting its very survival until the threat to it has eventuated is irrational and ineffectual 3) Ultimate Question: in a particular instance, does extreme necessity exist so as to justify a military action? e. Humanitarian Intervention Issue 1) Not all violations of Article 51 are precisely the same a) UN approaches on case-by-case basis f. Possible Solutions 1) UN tolerates, ultimately cooperates with, or commends military action by states when action taken to avert a demonstrable catastrophe a) Consent/Acquiescence when “good” g. Take Away: it is possible to conclude that the use of force by a state or regional or mutual-defense system is likely to be tolerated if: 1) There is credible evidence that such first-use was justified by: a) The severe impact of another state’s indirect aggression; OR b) By clear evidence of an impending, planned, and decisive attach by a state; OR c) By an egregious and potentially calamitous violation of humanitarian law by a government against its own population or part of it 3. Stedman a. Normative View: UN needs to change by acknowledging 1) The limitations imposed by civil war 2) What can be realistically accomplished by outside forces in violent internal conflict 3) The limitations imposed by its own organizational makeup and procedures b. UN Function 1) Pre-1989 Peacekeepers, Observed strict neutrality 2) 1989 started elements of “peacebuilding” in Africa c. Getting an Agreement in Civil War 1) Theme: create favorable alternatives at the negotiating table and lessen the desirability of alternatives away from the table for the antagonists 2) Methods to overcome disunity: a) Define a structure for decision making, with clearly delineated responsibilities and powers b) Create a coherent strategy c) If the Choice is to pursue a negotiated settlement, then a mediator must be informed by his or her superiors as to what terms are acceptable beforehand d) A negotiated settlement demands a workable solution e) Identify leverage and link it to the strategic goal f) Plan for failure d. Negotiations vs. War Crimes 1) Theme: don’t threaten with war crimes if trying to achieve goal of peace. Only use war crimes where a party reneges on negotiated agreement 2) War Crimes only make sense when international community judges the war to be total and that the offending party must be defeated 3) War crimes only appropriate when international community has judged a negotiated settlement with the present leadership as impossible 4. Falk a. Developments accounting for intensity of debate of humanitarian intervention: b. Response stimulated by the developments 1) Statist Response Commission Reports and Perspectives of Eminent Persons a) Con: Precedent for Recourse to war outside scope of self-defense AND w/o UN approval b) Pro: Moral/political desirability to act effectively in face of Humanitarian emergency c) Independent Commission on Kosovo (Sweden) Kosovo War legitimate although illegal (1) Options: (a) Leave decision to intervene with Coalition of the Willing (i) Prematurely abandons Charter (b) Suspend Security Council Veto (i) Not politically accepted currently (ideological/humanitarian/sovereignty differences d) Critical Argument: regardless of legitimacy, international response won’t occur unless political will (1) Strategic motive makes more likely an effective intervention (incentives) e) Canadian Commission on Intervention and State Sovereignty (1) Circumvent fears of colonialism by replacing “responsibility” language with “rights” (2) Shortcomings: does not account for geopolitical dominance 2) Doubters: Civil Society Perspectives a) “Collective Daydream” = post-colonial imperialism c. Falk proceed forward with both perspectives in mind 5. Teson – a. 3 Types of Collective Humanitarian Intervention 1) Soft – discussion, examination, and recommendation of action a) Reasons: (1) International Effects Test (2) Human Rights Violations 2) Hard – Coercive w/o force (mostly Economics) 3) Forcible and Use of Force b. “Prohibited Intervention” action aimed at influencing government over issue target state has legal discretion c. Human Rights: No longer within domestic sphere use soft intervention d. Form of Government 1) International Law origin of government not of outsider’s concern 2) Problems: a) International Framework requires International Community to recognize nation state when government REPRESENTS state (1) Democracy is the only way of showing People’s REPRESENTATION b) Democratic rule REQUIRED for enjoying human rights c) Democracies are inherently more peaceful (Kant) (1) Build in mechanisms to avoid war e. Collective Humanitarian Intervention 1) Anti-interventionalists – armed intervention strictly prohibited a) Only permissible with Security Council action 2) Teson’s Argument – war as last resort for extreme circumstances 6. Mwagiru: Cold War Paradigm Shift “New gloss on old design” a. Argument: Old UN constructs state-centered and therefore outdated, need to increase UN’s ability to negotiate, not act forcibly b. Somalia: Operation “Restore Hope” not humanitarian intervention since relied on UN 1) Security Council characterized Somalia as a threat to International Peace and Security 2) Argument: This classification shows the outdatedness of the UN Charter; Change UN to more effectively address modern problems (non-state entities) a) Negotiation is UN’s best resource 7. Orford a. Robertson 3rd Age of Human Rights = Enforcement as a rule of law b. NGO support of Humanitarian Intervention i.e. East Timor c. Tony Blair principle of mutual self-interest and moral purpose define foreign policy decisions d. IL Features of Interest 1) “Revolutionary” classification of claim that a right or duty of humanitarian intervention 2) International effects of humanitarian intervention a) Fear of colonialism uncivilized people unable to govern themselves e. Falk rejects legitimacy of collective humanitarian intervention but admits to a fear that advocating non-intervention may equal advocating inaction f. Argument: strike a balance yet ensure “humanitarian intervention” = more than statebaase capitalist and militarist world order g. Criticism: IL/News only responds to CRISIS 8. Arguments: a. For Unilateral Intervention (Henkin): System does not work, UNSC dysfunctional, Politics, morally justified, collectively good 1) Need to make sure people are protected b. Against Unilateral Intervention (Wheeler, Elshtain): who defines “humanitarian” (ambiguous), balancing of interests and rights, means (protecting soldier’s lives not civilians), sustainability, undermines IL system 1) Need restraint for unlawful unilateral use of force c. Professor B: we look at this dilemma only in moments of crisis 1) Need to take a longer view for judging use of intervention in armed conflict 2) Dangers: grim colonial history, International System still fails to protect people 9. Language a. Moore – “intervention” used in at least 4 different senses 1) Synonym for transnational interaction or influence 2) Statement that a particular transnational interaction violates community expectations about permissible international conduct 3) Personal policy judgment that a particular transnational interaction is wrong, and 4) Specialized sense as a definition of a problem for study b. McDougal: intervention “refers with indiscriminate abandon to the facts to which decision-makers are responding, to the policies invoked before decision-makers, and to the particular responses of decision-makers which are sought to be predicated or justified 10. Multilateralism a. Problem: smokescreen for unilateral intervention? 1) Creates difficulty for U.S. foreign policy goals 11. Intervention as Helping Self-Determination a. Ronzitti – armed struggles by indigenous peoples against colonial rule, racist regimes, and governments which, even if not colonial or racist, are nonetheless unrepresentative or subordinating of certain clearly identifiable national constituencies b. Reisman – “human dignity” test c. Charney – Three conditions for self-determination outside colonial context 1) Bona fide exhaustion of peaceful methods of resolving the dispute between the government and the minority group claiming an unjust denial of selfdetermminatio 2) Evidence that the persons asserting the self-determination claim represent the will of the majority of the group 3) And a resort to force taken only as a means of last resort 12. Unilateral Humanitarian Intervention a. Bronlie – a rule allowing unilateral humanitarian intervention is a general license to vigilantes and opportunists to resort to hegemonical intervention b. Henkin – a humanitarian reason for military intervention is easy to fabricate. Every case of intervention has been justified on some kind of humanitarian ground 13. Cold War a. U.S. exclusively preoccupied with helping anti-left political forces regardless of their credentials as democrats and refused to challenge rightist modes of oppression, however severe 14. Intervention for Democracy a. Teson – valid basis for intervention 15. Collective Humanitarian Intervention a. Falk, Mwagiru, Orford skeptical about the legitimacy and moral objectives of collective humanitarian intervention b. Teson intervene to uphold basic human rights c. Mwagiru use negotiation to combat failures of UN 16. Mercenaries a. UN framework did not account for guns for hire b. Problem: accountability c. Definition: 1) recruited locally or abroad to fight in conflict 2) desire to fight motivated by material gain(more than state’s armed forces) 3) Not citizen of state attacking d. Violates UN Charter do not receive combatant status under Geneva Convention e. U.S. Jurisdiction 1) Pro: taking accountability 2) Con: actions take place in combat, Iraqis (not Americans) suffer the related harm E. IRAQ 1. Sovereignty vs. Suffering a. Evolving Definition of Sovereignty 1) Claim to Territory 2) International Action 3) Power vis-à-vis its citizens 4) Represents “will of the people” b. Evolution: progressive concept that becomes misused 1) Exclusivity of Monarch to Narrowing of Soveriengty c. Views: 1) Holocaust 2) Decolonization factors transcending borders d. Limiting helps advocate Human Rights e. Bathist Party Use of Sovereignty sovereignty prevents intervention based on Human Rights violations f. US Sanctions severely limiting Iraqi sovereignty 1) Limited ability to provide basic needs 2) No responsbilitiy to provide basic needs g. KEY QUESTION: Human Rights Violations OR No Basic Needs Met? 1) Do the Human Rights violations warrant the sanctions/force used to limit Iraq’s sovereignty? h. Central Paradox = Rhetorical Convergence invasion of Kuwait caused limit on sovereignty, yet large amount of justification based on Human Rights violations 2. Taft/Buckwold 2003 invasion extension of first gulf war a. Resolution 678 extended by Resolution 1441 1) Did not require Security Council recognition of violation of Cease Fire Agreement 2) Same reasoning legally for periodic strikes (i.e. Desert Fox) b. Criticism: Limits UN’s purpose overall 3. Franck Critical of Taft a. No imminence b. Kuwait was purpose of Use of Force resolutions 1) De minimus arguments are fact specific to Iraqi occupation of Kuwait a) Relates back to problem of Rhetorical Convergence b) Who decides UN violations? (1) Resolution 1441 creates security council recognition of violation, not unilateral c. Criticism: Resolution needed to recognize breach, subject to veto regardless of objective factual breach d. Role of Lawyer: don’t take sides, work on legal framework to design rules needed to move forward 4. General assessment of Legality a. War was illegal, not within 2 exceptions to use of force