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Karima Bennoune International Law and a Just World Order Spring 2011

I. UNIT I: Introduction A. Is International Law, law? 1. Critics a) Skeptics have argued that there can be no international law since there is (1) no international legislature to make it (2) no effective international judiciary to interpret and develop it, or to resolve disputes about it, and (3) no international executive to enforce it b) not real law because it is commonly disregarded, states obeying it only when they wish to, or when it is in their interest to do so 2. John Austin denial of international law a) Legal Positivism b) does not classify international law as law because law is equivalent to commands of the sovereign and it does not make sense that states could command them because states are sovereign 3. H.L.A. Hart The Concept of Law a) Distinction between morality and international law b) states often reproach each other for immoral conduct or praise themselves for living up to the standard of international morality c) different defining characteristics (1) distinctive form of moral pressure by which moral rules are supported appeals to conscience (2) international law: consists of appeals to fear or threats of retaliation d) International law arguments are technical in nature (based on a strict legal interpretation) e) The rules of international law (like municipal law) are often morally quite indifferent - commonly contain specific details and draw arbitrary distinctions f) Morality cannot be changed by the legislature (1) there is nothing in the nature or function of international law which is similarly inconsistent with the idea that rules might be subject to legislative change (lack of a legislature is just a defect which one day may be repaired) 4. Henkin International Law: Politics and Values a) law is deeply connected to politics (1) law is made by political actors, through political procedures, for political ends (2) international law is the normative expression of the international political system b) take for granted that international law is law by suggesting that it is complied with almost all the time (1) (Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time) B. Binding: Why Do States Comply with International Law? 1. Henkin How Nations Behave a) Critics lack of executive authority to enforce and lack of effective sanctions against the violator (1) Response: Extra legal sanctions other ways outside the law making states comply with the law itself b) not simply a question of national interests (only if it is in their best interest to do so) (1) costs outweigh the advantage of not following (2) it is in their long term self interest to comply (non-compliance will provoke reciprocal noncompliance by other states) c) Undesirable consequences d) states hold the rules to be legitimate states will respect rules that they agree with and support e) Policy international law is important in shaping the understanding of the shared expectation in exercising a deterrence in whether to comply with a law or not 2. Harold Koy Why do nations obey international law? a) Trans-national Legal Process: 3 phases: (1) interaction of actors (2) interpretation of global norm applicable to situation (3) internalizing of interpretation to others parties own system- the aim is to bind the other part to obey the interpretation as part of its internal value set b) transmission belt norms created by international society infiltrate into domestic society c) Israel and Oslo Accords d) these institutions become carriers of history and evolve in path-dependent routes that avoid conflict with the internalized norms these habits lead nations into default patterns of compliance e) the key factor is repeated participation (not simply their interest or identity) 3. Compliance

Karima Bennoune International Law and a Just World Order Spring 2011
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due to self interest culture of compliance states operate in accordance with international rules because they have been socialized to do so adopted the beliefs and behavioral patterns of the culture that surrounds them Legitimacy (determinacy, symbolic validation, coherence, adherence) strong pull on states to comply through treaty regimes: national interest, efficiency, and regime norms (1) model of compliance based on management to induce compliance not through coercion, but through interactive processes of justification, discourse, and persuasion ensure transparency, resolve ambiguities, and strengthen states capacity to comply

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Enforcement 1. Mechanisms to ensure compliance (Damrosh) a) voluntary compliance b) sanctions for disobedience (1) although some are relatively soft, also force of public opinion (2) role of non-governmental organizations publicizing violations c) coercive sanctions (1) self-help measures like countermeasures and economic sanctions d) Example: a State that is a victim of a material breach of a treaty can generally suspend or terminate the treaty; and the threat that it would do so serves as a deterrent to breaches, as a sanction against breaches, and to some extent as remedial mechanism e) non-forcible remedies available in national courts f) forcible measures which provide even stronger forms of compulsion (self-defense) g) centralized enforcement mechanisms (non-forcible and forcible) (1) ie - collective economic sanctions h) some centralized organs for the enforcement of international criminal law against individuals 2. Horizontal of Decentralized Enforcement a) the main sanctions of international law are operated horizontally between states b) a state that fails to respect international law may find that other states treat it as a lawbreaker and refuse to carry on normal relations with it c) want to be perceived as law abiding Architecture of the System 1. 3 views a) Positivist View it is what states say it is (1) states are only bound to international law to which they have consented b) Natural Law view (inherent order) (1) historically from religion and important in human rights area (2) there are some rights, not because the government has agreed to them, but by virtue of being human c) Realist View (1) Focuses on state power and security History of International Law 1. Leading up to WWI a) Treaty of Westphalia in 1648 2. WWI to WWII a) League of Nations (deemed by many to have failed) b) PCIJ shaped the way the current world court looks like 3. Post WWII a) founding of UN and UN Charter 4. Cold War a) major global divide is between capitalism/democracy and communism b) comes to an end with the end of communism and fall of Berlin Wall 5. Optimistic 1990s a) blockages of cold war over and possible to get security council to take action b) ad hoc tribunals in Rwanda, Rome Statute of International Criminal Court 6. September 11, 2001 a) sharp polarization between North and South b) focus is on security/financial crisis 7. Problems a) Corruption affects system from how governments are determined, inflicting international institutions (ie oil for food program) b) Trans-national crime

Karima Bennoune International Law and a Just World Order Spring 2011
Sovereignty 1. Generally a) respecting other international states b) Sovereign Equality the idea that each state is an equal on a level playing field (1) ie UN general assembly every state gets 1 vote c) Responsibility along with the rights there are duties that go along with sovereignty d) Limits states can choose to limit themselves by for instance ratifying a treaty (exercise of sovereignty) 2. Henkin: Politics and Values a) Sovereignty quality of having independent authority over a territory characteristic of statehood b) State autonomy state is not subject to any external authority unless it has voluntarily consented to such authority c) Sovereignty is a bad word that is misleading and misused d) Sovereignty has some legitimacy and there are some components he would keep e) Misuses of Sovereignty (1) What one state does on its own territory might be within its sovereign rights but may have major implications for other states (2) Must constrain actions that states are taking that have a negative impact on other states (3) However, violations of sovereignty can cause problems f) Responsibility to protect when a state is unable to unwilling to prevent mass atrocities among its population, there is an international duty to protect the population 3. Different countries take different views a) US national sovereignty is very important b) Germany much more nervousness about asserting sovereignty 4. Xue: Chinese Observation on International Law a) Sovereignty is important because it believes in diversity and mutual respect in international political life b) Multiplicity of actors - Non-state actors are now important on the stage and there has been some adapting of the international legal system and maintains a basic commitment to sovereignty and selfdetermination over a longer period c) national interests remain a determining factor for international cooperation 5. Globalization has big impact on sovereignty a) Economic opening of markets and free movement of capital, taking down trade barriers b) Communication instantaneous communication 6. Reisman: International Law after the Cold War a) Cold War deformed international law and sovereignty would be even more important after the cold war, but it could go either way because things like national sovereignty could defeat human rights b) should be a revival of the norm of national political autonomy but not the older notion of sovereignty in its entirety 7. Vagts: Hegemonic International Law a) Not shared b) Ruling tool of the hegemon c) Article 2(a) based on the principle of the sovereign equality of all its Members d) Must set aside principle of non-intervention e) Because treaties represent constraints hegemons would avoid agreements creating international regimes or organizations that might enable lesser powers to form coalitions that might frustrate the hegemon must set aside the rule enshrined in the Vienna Convention that treaties obtained through coercion are invalid f) In the terms of formation of customary law, such a power can by its abstention prevent the emerging rule from becoming part of custom Sources of International Law A. Article 38 of International Court of Justice 1. Primary Sources a) International Conventions (treaties) b) Customary International Law c) General Principles of International Law 2. Secondary Sources (evidence) a) Judicial Decisions compromise between common law system and civil law systems (which are much more code based) b) Teachings of most highly qualified publicists 3. Schachter - International Law in Theory and Practice
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Karima Bennoune International Law and a Just World Order Spring 2011
It has become evident to international lawyers as it had to others that States, which made and applied law, were not governed by morality or natural reason they acted for reasons of power and interest it follows that law can only be determined through the actual methods used by States to give effect to their political wills (1) remove subjectivity and morality (2) Intended to make international law realistic and definitive b) Inductive methods (1) If sources were to be used objectively and scientifically, it was necessary to examine in full detail the practice and related legal convictions of States c) Voluntarism classic doctrine of state sovereignty applied to the formation of international law it holds that international legal rules emanate exclusivity from the free will of states as expressed in conventions or by usages generally accepted as law (Lotus Case) d) Positivism obligatory nature of legal norms and fixed authoritative character of formal source tends to consider that to be law the international norm must be capable in principle, of application by a judicial body 4. Restatement (3rd) 102 III. Customary International Law A. Two distinct elements 1. General Practice 2. Acceptance as law B. General State Practice (objective) 1. The way in which states are conducting themselves officially on the international stage 2. Duration of Practice a) It is helpful to show practice over a long period of time, but it is not always necessary (ie for new issues such as the space race) 3. Uniformity/Consistency a) North Sea Continental Shelf Case widespread practice among many states and ideas is the states should generally be behaving in the same way 4. Does character/nature of states matter? a) Formally: no b) Interpreted as an organized functioning state regardless of character of governing structure c) Must show all different kinds of state systems recognize it C. Opinio juris accepted as law (subjective) 1. Must be engaging in the practice with the belief that practice is law D. Cases 1. The Pacquete Habana a) Question: How to we determine whether or not a provision of customary international law exists b) Facts: During an armed conflict Spanish vessel was captured as prize of war. Owners of vessels want compensation. c) Court looked to practice of a range of other states and past practice of the US d) Customary International Law found preventing peaceful fisherman from being captured during an armed conflict e) Dissent principle in question is not customary it is simply an act of grace (comity, no opinio juris) 2. The Case of the S.S. Lotus (Turkey v. France) PCIJ 1927 a) Question: Can Turkey exercise jurisdiction in this matter? b) Permissive v. Prohibitive point of view (1) France: Turkey must show that there is a rule that affirmatively permits them to exercise jurisdiction in this matter (2) Turkey: International law does not restrict them and they are permitted to do so if we show there is no prohibition c) Lotus Presumption: International Law permits all that it does not forbid d) Holding: Court does not assume opinio juris from practice. Must separately prove it and must make sure amount of practice citing is enough as to be conclusive 3. Legality of the Threat or Use of Nuclear Weapons ICJ, Advisory Opinion 1996 a) Question: Is the threat of nuclear weapons permitted under any circumstances of international law? b) States have not used them since 1945 customary norm not to use nuclear weapons (1) Factual Aspect maybe a situation never arose to warrant their use (2) Does not mean they were required to do so c) Cannot assume opinio juris (objective opponent) on basis of practice alone d) Existence of a number of treaties at the regional levels was not sufficient evidence that prohibition existed on their use at that time
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Karima Bennoune International Law and a Just World Order Spring 2011
Opponents of nuclear weapons hurt their case because the fact that certain regions adopted these treaties means that there was not already in place a prohibition on the use or threat of nuclear weapons e) General Assembly Resolutions not dispositive (1) Resolutions that suggest they are heading in a direction of banning nuclear weapons but they are not there yet (voting was split) (2) GA Resolutions can lead to the norms of customary international law (3) Must look at how broad the support is f) Holding: Court finds that there is not a customary or treaty based authorization for the threat or use nor is there a prohibition that is universal, but any threat or use would have to be in accordance with international humanitarian law and it is probably the case that it is hard to find that the threat or use would be in compliance with humanitarian law 4. North Sea Continental Shelf Case (Germany v. Denmark & Netherlands) a) Netherlands and Denmark are both parties to Article 6 of the Geneva Convention, but Germany is not b) Court says that this does not rise to customary international law norm, but they say it is possible ofr a treaty provision over time to rise to the level of customary international law norms so it would bind states not parties to the treaty to the norm in question c) Test for this is hard to pass (1) Sovereignty issue (2) Must show: (a) High level of ratifications of the treaty (b) Uniform state practice following treaty provisions (c) Opinio Juris (d) No precise length of time, but needs to be long enough to meet some of the other requirements 5. Military and Parliamentary Activities in and against Nicaragua (Nicaragua v. US) ICJ, 1986 a) Revolutionary means overthrows Nicaraguan government that US supported b) UN Charter cannot be used as a basis for dispute because US had a reservation that disputes under multilateral treaties could not be considered unless every state party to the treaty was a party to the litigation c) Turn to Custom (1) US argues that custom is still not acceptable because norms are close to the treaty d) While a treaty norm may also have status as customary international law they should be seen as separate norms (procedurally be treated differently) e) Court finds that Article 2, Paragraph 4 of UN Charter banning the recourse to force is not only a customary international law but rises to the level of jus cogens E. Non-Consenting States (persistent objectors) 1. Exception to Rule a) All states are bound by norm of customary international law except if during the emergence of that norm they have regularly and openly objected to the emergence of the rule (1) Ie US and Juvenile Death Penalty b) Exception to the exception if the rule rises to a level of jus cogens (1) Ie South Africa and apartheid even though they regularly objected to the norm banning racial discrimination it did not matter because this rises to a level of jus cogens 2. Jus Cogens a) Refers to the highest norms in international law b) The idea is that there are some norms that are central to the functioning of the international legal system c) Examples: genocide, racial discrimination, torture d) Legal Consequences (1) Exception to persistent objectors (2) Voids treaties e) Shelton articles (1) Finds this unnecessary because there is no need to label these types of offenses F. Relationship Between Customs and Treaties 1. Treaty can be declaratory of pre-existing custom a) Can crystallize customary international law by its very adoption b) Can also generate new customary international laws 2. Separate existence 3. Different Procedural rules (even when content is the same) IV. Law of Treaties
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Karima Bennoune International Law and a Just World Order Spring 2011
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Generally 1. Vieanna Convention guide for treaty law a) treaty on treaties b) broader than Vienna Convention because other treaties not covered c) Rises to a level of customary international law even though the US is not a party, it has signed but not ratified but US government has said the Convention constitutes a statement of customary international law d) Caveats (1) Only applies to treaties between states (a) In broader international law you can have treaties between other entities (2) Only applies to agreements in written form What is a Treaty and How Does it Operate 1. Qatar v. Bahrain ICJ, 1994 a) Promises are what matter and sticking by your word is important (intent does not matter here) b) Having signed such a text, the foreign minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a statement recording a political understanding and not to an international agreement c) The form of what they have done is what is important d) Stability and reliability are values promoted by treaty law where at all possible e) Shows that there is a broad range of things that can constitute an agreement between states Treaty v. Contract 1. Nature of the parties a) Anglo Iranian Oil Co. b) Do not have the right parties, have government of Iran on the one hand and oil company on the other hand 2. Nature of the agreement itself what law should govern a) Agreements that are international relations but are governed by municipality law b) Ie agreement to purchase chilled beef between UK and Argentine Republic because the law governing is the municipal law of one of the countries agreements between states to rent real estate for diplomats to stay on embassy Capacity 1. Restatement 311 a) A person is authorized to represent a state for purposes of concluding an international agreement if (a) he produces full powers or (b) such authority clearly appears from the circumstances Treaty drafting, adopting, consenting 1. Bi-lateral treaty between 2 states (easy) 2. Multi-lateral treaties open to ratification in any state (hard) 3. Consensus a) Want to get every state to agree 4. Drafting a) A state can participate in drafting a treaty but that does not mean it is bound by the treaty in the multilateral context 5. Signing-Up a) (1) Signature (classical way) b) (2) Signature plus Ratification c) (3) Exceed if it does not sign in the first place then it may in one step become a party to the treaty (US internal law does not allow this) d) in some instance signature alone is not enough (1) can be a statement of intention to be bound in the future that is subject to ratification and signature here does not make the state a party but gives it a lower level obligation e) Second Optional Protocol to the International Covenant on Civil and Political Rights (aiming at abolition of death penalty) (1) Signature is not enough here because it is subject to ratification (2) Lower level obligation: Article 18 in Vienna Convention (a) Do not defeat object and purpose of the treaty (3) Do not have to change the law of your country until you become a full party to the treaty in question (4) Testing Weapons (a) Result is something you cannot go back on (knowledge and environmental harm) (b) Not getting rid of weapon system in interim may be okay Observance, Application, Interpretation

Karima Bennoune International Law and a Just World Order Spring 2011
What does being a State party mean? a) Article 26: Pacta Sunt Servanda and Good Faith (1) Promise for in full and good faith: states need to be able to rely on the fact that other states will respect their side of the bargain 2. Relationship between treaty observance and internal law a) Article 27: Charming Betsy Presumption (1) Where possibly construe domestic law in accordance with international law 3. Procedural Rules a) Is it appropriate to apply treaties through the procedural rules of domestic laws of the country? b) Breard v. Greene 4. Interpretation a) Rule of good faith b) Sources can look to (1) Article 31: General Rule - textualism (a) Look at ordinary meaning of terms of treaty, in context and let of treaty (2) In terms of context can look to preamble, annexes, and subsequent agreements related to the treaty, instruments accepted by various parties, subsequent agreements between the parties, subsequent practice, special meaning given to a term if it I established that the parties so intended (3) Article 32: Supplementary Means (a) If methods in 31 lead to and unreasonable or no answer at all, look to the preparatory work of the treaty and look at all the documents related to the drafting process and views of the parties to supplement the process and clarify anything (4) Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (a) ICJ runs through methods in Article 31 and 32 (b) The court here looked at the plain meaning and specialized meaning of some terms, looked at the object and purpose, and looked at some state practice in regards to the treaty Reservations 1. What is it? a) Exception to taking exception to a part of a treaty b) Article 2(1)(d): reservation (1) 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 c) This is an attempt by a state at the time of becoming part of the treaty to limit or modify the obligations that it is taking under the treaty d) Remember it does not change the treaty itself or the obligations that other states have undertaken as amongst themselves it only purports to change the legal obligation of the state making the statement and the obligation of other states via the state e) Alternative name: interpretive declaration (1) Declaration made by state when it becomes part of the treaty as to how it interprets that part of the treaty f) Limitations: (1) Cannot make a reservation to the nature of the treaty and the basic treaty concepts 2. Why? a) Sovereignty only undertakes part of the treaty that it wants to consent to b) Allows states to become part of treaty when there are just small objections to minor points c) Downside: some are so reserved that they are like swiss cheese (1) Ie Womens Convention 3. Policy a) Sensible Test what is the object and purpose of the treaty 4. Objections a) The reserving State can (in some circumstances) be regarded as being a party to the Convention while still maintaining its reservations, if the reservation is objected to by one or more of the parties to the Convention but not others (1) Depends on circumstances of the case and whether the reservation is counter to the object and purpose b) Effect of reservations between reserving state and parties that reject the reservation (1) If it is objecting because it is not compatible with the object and purpose, the objecting state can decide it is not enforced between it and the reserving state (only affects those 2 states)
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Karima Bennoune International Law and a Just World Order Spring 2011
If it accepts the reservation as being compatible with the object and purpose of the treaty even though it objected it can consider the reserving state as a party to the treaty but the reserved provision does not apply to the two states d c) ICJ says this is up to states to decide between themselves 5. Object and Purpose a) Reservations should not be against the object and purpose of the treaty 6. Permissibility and Opposability a) Permissibility (1) Focuses on the nature of the reservation in the context of the nature of the treaty b) Opposability (1) Focuses on the responses of the other stated 7. Consequences of objections to permissible reservations a) Neither the treaty nor the reservation is opposable to the objecting state b) Regimes for multilateral conventions (1) The classical rule requiring consent of every contracting state (2) The exclusion of all reservations (3) The acceptance of reservations by a decision of a collective body or by the approval of a qualified majority of parties (4) The rejection of reservations if a qualified majority (2/3) of the parties object to it Human Rights Treaties and Conventions 1. Covenant on Civil and Political Rights a) Potentially problematic if: (1) Sweeping and general (2) Seeks to reserve a right that rises to a level of a preemptory norm b) Human rights treaties are state taking on obligations and the human rights committee will not be able to do its job if it cannot decide what not to include as a reservation c) What happens? (1) State remains a party but reservation is severed d) US Response (1) If you are going to severe our reservations then we cannot be a party to the treaty Invalidity of Treaties 1. Generally a) Article 42 (1) The validity of a treaty may be impeached only through the application of the Vienna Convention b) Prior to the Vienna convention there was doubt whether an invalid provision of a treaty may be struck out without declaring the entire treaty invalid (1) Article 44(3): separability provided that it does not materially upset the balance of interests on the basis of which the parties consented to be bound (2) Article 44(5): in cases where the treaty is absolutely void (coercion or jus cogens) there is no separability c) Article 45 (1) A state is prohibited from claiming invalidity if after becoming aware of the facts it has agreed that the treaty remains in force or by reason of its conduct must be considered to have acquiesced in the validity of the treaty or its continuation in force d) Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1) The Vienna Convention confines itself to defining in a limitative manner the conditions in which a treaty may lawfully be denounced or suspended; while the effects of denunciation or suspension seen as not meeting those conditions are, on the contrary, expressly excluded from the scope of the Convention by operation of Article 73 (2) Vienna Convention should be applied in accordance with their strict conditions (3) The treaty could be terminated only on the limited grounds enumerated in the Vienna Convention 2. Ultra Vires Treaties (beyond the powers) a) A state may not invoke its internal law as justification for failure to perform a treaty b) This general principle is qualified by the rule in Article 46 (1) Permits a state to assert as a ground of invalidity of a treaty the fact that its consent to be bound was expressed in violation of a provision of its internal law concerning the competence to conclude treaties
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Karima Bennoune International Law and a Just World Order Spring 2011
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46(2): if it would be objectively evident to any State dealing with the matter in accordance with normal practice and good faith d) Constitutional incompetence has never resulted in invalidating treaties e) Territorial and Maritime Dispute (Nicaragua v. Columbia) (1) Nicaragua contended 1928 treaty was invalid because it was concluded in manifest violation of the Nicaraguan constitution at a time when Nicaragua was under military occupation by the US (2) Court said that in the past Nicaragua for past 50 years has never objected to the Treaty or contended it was not bound by the treaty and in fact acted as though it was valid f) Legal Status of Eastern Greenland Case (Denmark v. Norway) (1) The court rejected Norways claim that this constitutional limitation invalidated the commitment of the foreign minister, finding it sufficient that the foreign minister acted within his province in replying to an inquiry of the Danish Government Coercion a) The invalidity of a treaty procured by the illegal threat or use of force is a principle which is lex lata in international law b) threat or use of force in Article 2, paragraph 4, of the UN Charter c) Debate over whether to amend the definition of force to include economic or political pressure (1) It scope of force is expanded too far it could raise serious danger t the stability of treaty relations (2) Compromise a draft declaration condemning threat or use of pressure in any form by a state to coerce any other state to conclude a treaty was unanimously adopted by the committee d) Should be void, not voidable (1) If a treaty were maintained by force, it would in effect be by the conclusion of a new treaty and not by the recognition of the validity of a treaty procured by means contrary to the most fundamental principles of the UN Charter e) Time element (1) Retroactive effects on the validity of treaties concluded prior to the establishment of the modern law (2) The rule cannot be properly understood as depriving validity ab initio a peace treaty or other treaty procured by coercion prior to the establishment of the modern law regarding the threat or use of threat f) Iran-US Settlement Agreement (Algiers Accords) (1) Release of US diplomats and other US nationals who had been held hostage in Iran void under Article 52 because they were procured by the use of force against the US? g) Territorial and Maritime Dispute (Nicaragua v. Columbia) (1) Nicaragua argued that at the time the treaty was concluded that they were under military occupation by the US and were precluded from concluding treaties that ran contrary to the interests of the US (2) Court rejected this claim Conflict with a Preemptory Norm (Jus cogens) a) Article 53 and 64 b) Report of the Internatioanl Law Comission (1) There are certain rules from which States are not competent to derogate at all by a treaty agreement, and which may be changed only by another rule of the same character (2) There are many general rules that do not have the character of jus cogens and states may contract out of them by treaty (3) Examples include (a) A treaty contemplating an unlawful use of force contrary to the principles of the Charter (b) A treaty contemplating the performance of any other act criminal under international law (c) A treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy, or genocide (4) Objections: if examples were given, it would be undesirable to appear to limit the scope of the article to cases involving acts which constitute crimes under international law; treaties violating human rights, the equality of States or the principle of self determination

Karima Bennoune International Law and a Just World Order Spring 2011
Examples were not given in the Article itself (a) Misunderstanding as to the position concerning other cases not mentioned (b) Prolonged studies of matter that may constitute jus cogens (6) New rules of jus cogens are not retroactive c) Sinclair The Vienna Convention on the Law of Treaties (1) There may be norms of international law so fundamental to the maintenance of an international legal order that a treaty concluded in violation of them is a nullity d Termination of a Treaty 1. Generally a) Most treaties today contain clauses specifying (a) their duration, or (b) the date of termination, or (d) a right to denounce or withdraw from the treaty b) Article 54 (1) Self evident rule that a treaty may be terminated in accordance with its own provisions c) Competence to terminate (1) Left to municipal law just as is the competence to express consent to be bound d) Special provisions to withdrawal are preferred over unilateral withdrawal provisions because they indicate an awareness of contingencies under which release from obligations would be acceptable e) North Korea and Non-Proliferation Treaty (1) Withdrawal clause (2) UN security council has not accepted Koreas withdrawal 2. Denunciation/Withdrawal from a treaty which contains no provision regarding termination a) Article 56 (1) Permits denunciation or withdrawal where such a right may be implied by the nature of the treaty b) Example: alliance and commerce c) UN Human Rights Committee, General Comment No. 26 on Issues Relating to the Continuity of Obligations to the International Covenant on Civil and Political Rights (1) DPRK wanted to withdrawal from Covenant after it was criticized for its human rights practices d (2) Does not contain any provision regarding its termination (3) Possibility of denunciation or withdrawal must be considered in the light of applicable rules of customary international law which are reflected in the Vienna Convention on the Law of Treaties (4) Only allowed when it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right to do so is implied form the nature of the treaty (5) Drafters deliberately intended to exclude the possibility of denunciation evidenced by used of denunciation clauses in other parts of the Convention (6) It can be implied when the treaty is temporary in character d) Gabcikovo-Nagymaros Project (1) Hungary attempted to terminate a bilateral treaty without the other partys consent (2) Court ruled that the Treaty does not contain any provision regarding its termination, nor is there any indication that the parties intended to admit the possibility of denunciation or withdrawal 3. Termination as a consequence of breach a) Report of the International Law Commission (1) ILC drafts treaties it is a think tank (2) Reports are ways of explaining what they were thinking when they drafted the original document b) Article 60: Termination of Suspension of the operation of a treaty as a consequence of its breach (1) If a state can claim it is specifically affected by the breach it can suspend the operation of the treaty (2) Bilateral Treaties: a material breach by one of the two parties and the other party can terminate or suspend the treaty (3) Multilateral Treaty (a) Other parties by unanimous consent suspend or terminate the treaty (a) in relations to themselves and the defaulting party, or (b) as between all the parties (b) A state party specially affected by the breach can suspend the operation of the treaty only with the breaching state (i) This does not affect the broader treaty obligations (ii) This is done unilaterally without the consent of the other nations
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Karima Bennoune International Law and a Just World Order Spring 2011
If the material breach radically changes the position of every party with respect to further performance of its obligations any party besides the breaching party can suspend the treaty with respect to itself alone (i) Suspending treaty obligations not only with the breaching state but with every other state as well (ii) Cannot end whole treaty (iii) Ie diarmament treaties Material breach (1) something that goes to the core obligations of the treaty (2) For the purposes of Article 60 (a) Violation to the object and purpose of the treaty or (b) Repudiation of the treaty not sanctioned by the Vienna Convention (ie another state walks away from the treaty not according to the rules of treaty law) (3) This does not give the state a right to suspend and walk away (a) It gives them a legal claim that must be adjudicated (4) Why is the scope of breaches limited? (a) Balancing Act issues of fairness and promote treaties as taking into consideration states interests, while at the same time not forcing them to follow treaty obligations if other parties are not doing the same (b) Stability in treaty relation (c) Not giving states trivial excuse to point to any breach of treaty when it becomes inconvenient to them Article 60(5): Exception: Humanitarian treaties (1) Material Breaches do not give one state excuse to retaliate in kind (2) Ie if one state executes prisoners of war in violation of Geneva Convention, other states cannot invoke that breach Loss of Right to Terminate (1) if you have breached and then another party breaches you cannot invoke their breach as a reason to suspend or terminate the treaty Cease-Fire Agreements (1) Does a violation by one party of a single article or group of articles of an agreement justify another party in regarding itself as freed of all obligations under the agreement? (2) Policy Concern: promotion of peaceful resolution of disputes and limitation on resource to force (3) Iraeli-Arab 1949: troop movements (a) Secretarys general views is that infringements of other articles besides the actual cease fire article cannot give rise to a claim to throw out the cease fire provisions of the agreement (4) US-Iraq (a) US and UK argue that Iraq was in a material breach of previous cease fire agreement at the end of the gulf war and this breach gave rise to a right to resume hostilities (b) Argument was not accepted by any other member state and was rejected by several other security council members Advisory Opinion on Nambia (1) Nambia argues that apartheid being imposed in the 1970s was a violation of a norm rising to the level of jus cogens (a) And therefore mandate given to South Africa over South West Africa (Nambia) is no longer valid because of the material breach (2) ICJ rules that it is justified to terminate the mandate even though it is not formally a treaty (agreements through the UN led the way to the mandate so treaty rules are applied by analogy) (3) Apartheid was both kinds of material breaches (a) Repudiation of an agreement not allowed (b) Violation of essential object and purpose of the agreement (4) Briggs Criticism (a) ICJ is mistakenly looking at this as though it were a state taking action (b) To the contrary this is an exceptional situation where there is every other party agreeing to this
(c)

c)

d)

e)

f)

g)

Karima Bennoune International Law and a Just World Order Spring 2011
This should have looked at in the case of multi-lateral treaties and a material breach may be invoked as a ground for termination or suspension under 2(a), but 2(b) and (c) only permit suspension, not termination (d) Court makes too broad of an assertion because the court says a state simply can allege a violation of the treaty and pronounce the treaty at an end h) Appeal Relating to the Jurisdiction of ICAO Council (India v. Pakistan) (1) Policy motivation for preserving jurisdiction (a) Encourages treaty stability (b) The whole intention of jurisdiction clauses is to get a ruling on validity of claim to terminate the treaty so assume underlying breach means jurisdiction is no longer in effect then you get rid of the procedures that can adjudicate the claims so jurisdictional clauses should continue (2) The treaty question is beyond technicalities of ICAO and is for the ICJ (3) ICAO can rule specifically on whether there was a breach but it is not up to them to decide if it is a material breach Fundamental Change of Circumstance a) Bar is very high and difficult to meet b) Article 62 (1) Fundamental change may not be invoked as a ground for terminating or withdrawing UNLESS THE FOLLOWING CONDITIONS ARE MET basis for withdrawing is set up as a exceptional situation (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 c) 5 conditions must be met: (1) change must be fundamental (2) change must have been unforeseen (not something assumed or if there are provisions for certain contingencies) (3) circumstances which have change must have been an essential basis of the consent to be bound by the treaty (goes to reasons why they entered the treaty) (4) effect of change must radically transform the extent of obligations of the party invoking the change as a ground of termination (injustice because of the change) (5) obligations are still to be performed (not retroactive to agreements that have been fully executed) (6) Cannot specifically concern a boundary d) Fisheries Jurisdiction (UK v. Iceland) (1) Iceland wants to expand its 12 miles to 50 miles around its shores. UK has exchanged notes between the two countries where UK recognized Icelands claim to 12 miles. Iceland claims change circumstances include those resulting from exploitation of fisheries and in absence to an agreement fishing was open to all in the high seas but not territorial waters (2) Court concludes this is not the right kind of change of circumstance because: (a) Exploitation of fishing is not the type of change relevant because it does not change the nature of the specific obligation (b) There is no radical transformation of the extent of obligations still to be performed (3) ICJ affirms in principle that if terms of Article 62 are met it would accept fundamental change in circumstances as a ground for terminating a states treaty obligations d e) Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1) When both Hungary and Czechoslovakia were under Communist rule, the two countries concluded a treaty for the construction and operation of a system of locks on the Danube River. Subseqeuntly, Czech split into Slovakia. Hungary argues that an essential object of the Treaty an economic joint investment which was consistent with environmental protection and which was operated by the two contracting parties jointly had permanently disappeared and become impossible to perform. (2) The changes are significant total political transformation (3) The Court does not accept these changes for a basis of a claim under Article 62 (a) Changes are not connected enough to the object and purpose of the treaty and not essential to the basis of consent and do not alter obligations to still be performed it does not matter that the governments have changed because political change is foreseeable
(c)

4.

Karima Bennoune International Law and a Just World Order Spring 2011
Court said it would have to invalidate every treaty between the 2 countries if it accepted this argument (4) Bottom line: changing environmental expectations are not the kind of change the court is looking ford 5. War between contracting parties a) No provision in the Convention specifically available to answer this question b) Techt v. Hughes Court of Appeals, NY (1) Allowed an enemy alien to inherit property despite the existence of an armed conflict between Austria-Hungary (2) Rule is a case by case assessment to see if the treaty is necessarily suspended by war (3) Humanitarian treaties would always apply in an armed conflict situation c) General Rule: outbreak of armed conflict does not suspend or terminate the treaty between parties of the armed conflict General Principles of Law and Equity A. Atricle 38(c) 1. Formally a) Equal to customary international law and treaties 2. Practical a) Less referenced 3. Lauderpact a) Residuary source and kind of a leftover source and used to fill in gaps in international law when there is not a principle on point 4. Different than customary international law a) Here we are looking on the formal nature of the legal principles in question and not whether states are actually following them in practice (opinio juris) 5. Recognized by civilized nations a) Historically: colonial term to be exclusive of non-western parts of the world except for perhaps Japan and Turkey b) Modern: refers to all formal legal systems in the world (1) Organized sovereign states and their formal legal systems 6. Municipal Law a) Must establish all kinds of legal systems in the world use that principle in question no matter what kind of legal system they use B. Prosecutor v. Tadic (International Criminal Tribunal for the Former Yugoslavia) 1. International Tribunal created by UN Security Council a) Did the UN have the authority to establish this criminal tribunal? It was established as a measure of the UN Sec. Council; the Security Council has to report to the General Assembly within the parameters of the assembly; the UN security council must maintain and restore peace and sometimes the methods necessary for that were not foreseen when the UN charter was written; the UN is an evolutionary organization 2. Defendants claim: a) Has the right to be tried by a tribunal that was established by law because it is a general principle of international law and the way the ICT was established was not established in the right way 3. Established by Law a) A general principle of law and applies differently outside the context of sovereign states b) ICT thinks it should apply differently in the context of UN because structure is different than a sovereign state 4. Establish in accordance with the rule of law a) Court adopts this and does not focus specifically on the mechanisms on how the body in question was created 5. Court finds a general principle a) While the court does find a general principle, it believes it applies differently at the international level as opposed to the municipal level b) Cannot automatically extrapolate principles from the domestic level to the international level it must be the appropriate principle 6. SC has a wide margin of discretion in choosing the course of action a) Where internal armed conflicts are determined to pose a threat to the peace, the SC may exercise its exceptional powers under Chapter VI and VII of the UN Charter. b) These powers are coercive and mandatory. c) Although the establishment of an international tribunal is not explicitly mandated in the Charter, the measures described in the Charter are merely illustrative and not exhaustive.
(b)

V.

Karima Bennoune International Law and a Just World Order Spring 2011
Interlocutory Appeal: a) the appeal of an issue that does not resolve the disposition of the case, but is essentially to a determination of the parties legal rights. b) Slippery slope argument; how far can the discretion go? c) There is no clear sense of judicial review or hierarchy between various tribunals and ICJ. Decentralized legal system. Schacter: International Law in Theory and Practice 1. Principle of municipal law recognized by civilized nations a) This is the law of various forms of civilized legal systems in the world b) Positivist view: only if states have agreed to them as international law principles c) Friedman view: kind of a common law of mankind and allows widely accepted domestic precepts to fill in gaps of law d) Principle is rarely referred to in ICJ and more frequently referred to in dissents e) Most often looked at to deal with procedural questions rather than substantive questions (1) Subjects that there is just no international law on (2) Look to legal process around the world where there are stark similarities (3) ICJ is much more comfortable dealing with procedural matters not addressed by international law f) Must be followed by vast majority (1) If only common law systems are following the principle then you are in trouble g) Are these helpful and inevitable, obvious ways to resolve these disputes or are they too general and vague? (1) Less reliance on principles unless the principle in question is uncontroversial (2) Not understood by the courts as moral principles in the way they are applying them (3) These are legal doctrines and there are rules governing how these should be applied 2. General principles of law derived from the specific nature of the international community a) Kind of precepts that make international legal systems function b) IE pacta sun servanda, non-intervention, territorial integrity, self-defense, and the legal equality of states 3. Principle intrinsic to the idea of law and basic to all legal systems a) Abstract category b) Include principles of interpretation c) Ie lex specialis (look to specific subject matter rather than general subject matter) 4. Principles valid through hall kinds of societies in relationships and coordination 5. Principle of nature and justice 6. Additional requirement: rule in question needs to be appropriate for international relations (pg. 238) Equity and Good Faith 1. 5 uses of equity a) As a basis for individualized justice tempering the rigors of strict law b) As consideration of fairness, reasonableness, and good faith c) As a basis for certain specific principles of legal reasoning associated with fairness and reasonableness: to wit, estoppel, unjust enrichment, and abuse of rights d) Standards for the allocation and sharing of resources and benefits (boundary delimitation) e) As a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth 2. The Diversion of Water from the Meuse (Netherlands v. Belgium) ICJ a) If both parties are not performing one party cannot look as a non-performance of the other party as an excuse to suspend the legal obligation b) Rule: he who seeks equity, must do equity 3. Pros/Cons a) Pros: Seeks equitable result under the precise circumstances of the case, avoids injustice, reaches an agreement and fills in gaps when there is no other way b) Cons: Potential of subjectivity, different interpretations depending on where it takes place, different ideas of justice in different parts of the world, and can provide an excuse for states Proportionality 1. Principle across many fields of international law a) Evaluate the lawfulness of resort to military force and warfare b) International criminal responsibility in war crimes c) Human rights areas d) Trade e) Must weigh whether states are limiting rights in acceptable ways or not
7.

C.

D.

E.

Karima Bennoune International Law and a Just World Order Spring 2011
Offers a second opinion on whether states have reacted appropriately in response to action of other states or in relation to assertion of state interests against claims of individual rights 2. Oil Platforms Case (Iran v. US) a) Judging if use of force by US responding to Iranian action is proportionate 3. Gabcikovo Project a) If one state violates international law and the other state wants to respond through self-help it must do so in a way that is proportionate to the underlying violation to which it is responding 4. Maritime Boundary delimitation a) Generally construed to refer to the ratio between the lengths of the coasts of each state that border the marine area to be delineated b) Distinguished between it as an operative criteria and a test (corrective) of a solution reached by other criteria 5. Pros/Cons a) Pros: assists in answering difficult questions of international law b) Cons: subjectivity and vagueness F. Humanitarian Principles 1. Corfu Channel Cases (UK v. Albania) ICJ 1949 a) In the context of the cold war British ships traveling through Albanian waters that were mined and British sailors are killed b) Court says that absent any other specific international obligation to do so, elementary considerations made it an obligation for them to be known c) Elementary Consideration d) Catch all to offer protection in situations where no specific principle is available on the question (ie Armed conflict) e) Speaks to community values in the international community VI. Secondary Sources A. Judicial Decisions 1. Formally a) Compromise where they are recognized as a source of law but a subsidiary source and balances against Article 59 of the International Court of Justice that says a decision is not binding except for the parties in the case 2. In practice a) Important source and very frequently referred to in other ICJ decisions b) Does not entirely follow Article 59 in practice an will follow its own previous decisions or carefully distinguish them (will never ignore them completely) 3. Most useful a) Mostly help understand what a primary source says/explains them b) Rulings of the ICJ are most important but other courts are also sources but generally carry less weight 4. Decisions of other International Tribunals a) No clear rule to the hierarchy of the other courts b) ICJ does not have a right to automatically review decisions of the other courts c) Some other tribunals have disagreed with the ICJ B. Teachings of the most highly qualified publicists 1. Generally a) Views of the most prominent experts on International Law b) Scantly referred to by majority in ICJ more likely to be referred to when there is a broad consensus on the issue and there is a comfort in looking to this c) Cited more historically, because they did not have the sources that are available now 2. Problems with referring to writers a) Writers may be subject to national bias and may reflect the viewpoint of their own nation b) Writers quote other writers and not much hard law here c) More credible opinions are in individual bodies like the ILA and ILC and not just purely individuals 3. Restatement of Foreign Relations Law (3 rd) a) Revised restatement published in 1987 by ALI b) Represents authoritative US scholarly statement on contemporary foreign relations law on US and has been looked to by US courtsd C. Other Sources (not enumerated in Article 38) 1. Generally a) The powers of the General Assembly under the UN Charter are basically recommendatory
f)

Karima Bennoune International Law and a Just World Order Spring 2011
The Security Council has certain compulsory powers but would only use them rarely and in extreme situations. Some bodies that make declarations in an attempt to proclaim, clarify, or codify standards of international law are: (1) General Assembly (2) Security Council (3) Informal Networks (4) Formal Institutions c) These proclamations may be anywhere on the spectrum between "political", "moral", and "legal." Generally Assembly Declarations & Resolutions a) Developing states have advocated a strong role in General Assembly because they generally have a block in the general assembly while the northern states are weary about giving them a bigger role b) Amount the resolutions adopted we can discern different categories and they are not all equal (huge scholarly debate about status of resolutions) c) Factors to look at if resolution is not unanimous (1) Size and composition of majority (the fact that a law declaring resolution has been adopted without negative vote or abstention is usually regarded as strong presumptive evidence that it contains a correct statement of law) (2) Intent and expectations of states (3) Political factors (4) Contextual elements d) UN Gen. Assembly resolutions are not formally binding (not formally legislation) but these statements have legal value e) The legal effect of GA declarations is debated. Article 38 of the ICJ does not name declarations as a source of law f) The more difficult problem raised by resolutions or declarations is when they articulate a general principle of law. Most often they have been study and debated for years and then the Assembly adopts it by consensus or near-unanimity. A declaration that is less than unanimous is more questionable. g) The resolutions may: (1) Be considered by governments and courts as evidence of international custom or general principle (2) Set forth principles for a future treaty (i.e. Declaration against Torture and many areas of human rights) h) 3 Kinds of Resolutions: (1) law declaring (2) procedural: binding effect on member states (3) declaratory resolutions: argued to be less legal end of the spectrum. i) Legal Meanings (1) No legal effect at all (literal reading of UN charter) (2) Some of them may be authoritative determinations of the UN charter and in that case they have legal value (3) Resolutions can help create customary international law (4) Almost like a legislative effect and GA is like a world parliament and there should be legal weight j) Declarations: Filartiga v. Pena-Irala US Court of Appeals for the 2nd Circuit (1) Background: Wrongful death action brought by two Paraguayan nationals, the father and sister of the deceased. He was tortured to death in Paraguay by the defendant (Pena-Irala.) Jurisdiction was based on the Alien Tort Statute. The Plaintiffs contended that torture violates customary international law. (2) A declaration implies a duty to adherence; a declaration is a particular type of UN Resolution: it is a text already followed that is purported to be followed (3) Is torture a violation of nation (a) US court looks at resolutions and Declaration as evidence of customary international law. Court takes voting record into consideration: nature, language, voting record (adopted without dissent) (b) Seen as authoritative statements of the international community and there is international consensus on the issues at question (torture and humanity) (4) Holding: Deliberate torture under the color of governmental authority violated the rules of international law.
b)

2.

Karima Bennoune International Law and a Just World Order Spring 2011
The 1975 U.N. Declaration Against Torture states that "where it is proved that an act of torture or other cruel, inhumane, or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law." The Declaration was adopted without dissent. (b) Since this declaration was adopted, members cannot contend that they dont know what human rights are promised in the charter to promote. k) Sosa v. Alvarez-Machain Supreme Court of US (1) Background: This case concerned allegations that Alvarez-Machain had been involutarily detained and taken from Mexico to the United States. The Court looked at Filartiga and the Alien Tort Statute but ultimately held that the brief detention did not violate a standard of international law. (2) Holding: The Court replies to Alvarez's claims that his detention was an "arbitrary arrest" under the Universal Declaration of Human Rights and the ICCPR by stating that: (a) "The declaration does not of its own force impose obligations as a matter of international law." (b) Also notes the Eleanor Roosevelt quote calling the Declaration "a statement or principlessetting up a common standard of achievement for all peoples and all nations" and "not a treaty or international agreement impos[ing] legal obligations." (3) The Universal Declaration of Human Rights was not self-executing and so did not itself create obligations enforceable in the federal courts (4) Expectations of states in regard to these standards are important in how we ascribe legal value to them l) Nuclear Weapons Case Dissent (1) ICJ examined a series of resolutions in which the GA by large majority votes condemned nuclear weapons and characterized them as illegal, yet the Court found that those resolutions fell short of establishing a rule of international law (2) It is wholly unconvincing to argue that a majority of the members of the GA can declare international law in opposition to such a body of state practice over the opposition of such a body of states (3) Criteria to look at to ascribe legal value (a) Voting Records: unanimous? (b) If split in voting is it significant? (c) Language used in resolution: declaration? Interpretation? (d) Repetition: passed every year? d Security Council a) Different from General Assembly (1) The UN charter confers on the Council power to take compulsory measures under Chapter VII (Article 39-51), which UN members are legally bound to implement under Articles 24 and 25 (2) when it acts under its power with respect to threats and beach of peace, the resolution in question has a particularly hard law edge to it and non-member states on the UN must comply with it b) Strictly speaking not sources of International law itself (1) Have ad hoc effect (2) They are legally binding into the situations in which they apply, but not general international law c) At the end of the Cold War was when the SC really began to use its powers, mostly by imposing economic sanctions and other non-forcible measures under Article 41 (1) From the 90's into the 2000's the SC has embarked upon certain exercises of authority that have been characterized as "law-making." (2) Between 1991 and 2001 the Council asserted itself on matters of global threats from terrorism, weapons of mass destruction, and serious violations of human rights. (3) after Sept 11, Many resolutions were passed see page 274, 1st full paragraph. (4) It is said that the Security Council is an Executive Organ and not a legislative one so forays into law-making may exceed its powers under the UN Charter. d) Criticisms to their legislative phase (1) Council was intended to be an executive, not legislative organ and its forays into law-making may exceed its powers under the UN Charter
(a)

3.

Karima Bennoune International Law and a Just World Order Spring 2011
Concerns have been expressed about its democratic deficit in that its membership is restricted to 15 states, of whom 5 have veto power and carry disproportionate weight (3) Talmon: Security Council as World Legislature (a) Objections to Security Council as legislature (i) Security council does not represent everybody and therefore is undemocratic in nature (ii) Council practice may be criticized as contrary to the basic structure of international law as a consent-based legal order (iii) SC and GA have different mandates, while the GA looks at a vast range, the SC can only look at issues of international peace and security (iv) SC general role is policeman not legislature or jury (a) ICJ does not know of legislative resolutions as a source of international law (b) Council resolutions are legally based in the UN Charter, an international convention in the sense of Article 38(1)(a) of the ICJ Statute which makes them classifiable as secondary treaty law (b) Three possible legal limits to Council legislation: (i) Restrictions Deriving from the Text of the UN Charter (a) The Council enjoys powers only insofar as they are conferred by the UN Charter. (b) Under Article 39, the Council may take action only to "maintain or restore international peace and security." (c) Has recommendatory (only) powers- Article 26. (ii) The Principle of Proportionality (a) Legislation must be necessary in order to maintain international peace and security (b) Council legislation is ALWAYS emergency legislation (iii) The Concept of Integrity of International Treaties (a) The Security Council does not have the authority to amend treaties. (b) Whether the SC may impose existing treaties upon States that are not yet parties is a different question and is unclear. (c) Still regarded as coming within the scope of traditional sources of international law Soft Law (agreements not intended to be legally binding) a) Seen as a grey zone between the white of non-law and the black letter law b) Reality: many more norms have crystallized through soft law, nonbinding standards that are developed into binding standards c) Accepting a legal value of ambiguity and may need these standards when agreement is not possible on a harder law norm d) Just because something is called soft law does not mean states are expected to follow it e) For critics, there either is a legal obligation or there is not, it should not be a matter of degree. f) Schachter: The Twilight Existence of Nonbinding International Agreements (1) A treaty or international agreement is said to require an intention by the parties to create legal rights and obligations or to establish relations governed by international law (a) States are free to enter into non-binding agreements but their intent is then questionable (b) Inferences are drawn from the language of the agreement to discover intent. (c) Statements of general aims and broad declarations are considered too indefinite to create enforceable obligations and therefore agreements which do not go beyond that should be presumed to be non-binding. (i) Example: Agreements of friendship and trade. (2) What precisely is meant by stating that the agreement is without legal effect? (a) Noncompliance by a party will not be a ground for a claim for reparation or for judicial remedies. (b) Nonbinding agreements are not "governed by international law." (3) What principles or rules are applicable to issues of interpretation and application? (a) Vienna Convention and customary international law do not govern so it may be helpful to indicate what reasonably may be meant by an understanding that an agreement entails a political or moral obligation and what expectations are created. (4) Two aspects of this type of agreement:
(2)

4.

Karima Bennoune International Law and a Just World Order Spring 2011
(a) (b)

The commitment of the state is "internalized" (i) Expectations of State's officials to act in accordance with the agreement The second aspect is "external" in the sense that it refers to the reaction of a party to the conduct of another party. (i) The agreement confers entitlement on each party to make representations to the other party on the execution of the agreements.

VII. International Legal Personality A. International Legal Personality Defined WHO DOES I-LAW APPLY TO? 1. Particular entities are endowed with legal capacity. a) States b) NGO c) Individuals d) Transnational corporations 2. This is an area that is somewhat in flux, but states continue to be at the HEART of the international legal community B. Determination of Statehood (distinct from recognition of govt) 1. Situations where statehood is legal question (pg. 300-301) a) Break up of a state into a number of states b) Devolution or succession by a territory of an existing state. c) Foreign control over another state d) When states merge or form a union e) Separatist claims of a union within a larger state f) Special entities with quasi-state like status. (Palestine, Taiwan) 2. Elements to be Recognized a) 1933 Montevideo Convention (Traditional standard) (1) Art 1. a.) permanent population, b.) a defined territory, c.) government, d.) capacity to enter into relations with other states. (2) Art 2. A federal state is a sole legal person in international law. (3) Art 3. The political recognition of the state is independent of recognition by other states. A state has the right to: (a) Defend its integrity and independence (b) Provide for its conservation and prosperity (c) Organize itself as it sees fit (d) Define jurisdiction and competence of its courts b) Benefits of Statehood (1) Soverignty over its territory and general authority over its nationals (a) Status as a legal person and the privileges and rights thereof (b) Own acquire and transfer property (c) Make contracts and enter into international agreements (d) To become a member of international organizations (UN) (e) To pursue and be subject to legal remedies (2) Capacity to join with other states to make international law, as customary law OR international agreement. c) AALAND Island Question (pg. 309) (1) Finland did not become a sovereign state until a stable political organization had been established AND until the public officials had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops.

Karima Bennoune International Law and a Just World Order Spring 2011
Additional Contemporary Requirements a) Guidelines on the Recognition of new states in Eastern Europe and in the Soviet Union (pg. 313) (1) The European Council set additional guidelines for new states in Eastern Europe to follow to become new states. (a) Respect for UN Charter and Final Act in Helsinki (b) Guarantees for rights of ethnic and national groups (c) Respect for frontiers (d) Respect for commitments to disarmaments (e) Commitment to settle by agreement Recognition of Government 1. Generally a) This is separate from recognizing a state. Most common is the instance where there is a military coup and an existing government is toppled. Often this will result in TWO governments: (1) A de facto government which is actually controlling all or most of the country (2) A de jure government that has a legitimate claim to governance but is either in exile or controls only part of a country. 2. Secretary General: Memorandum from the Secretary-General to the President of the Security Council on the Legal Aspects of the Problem of representation in the UN. (pg. 349) a) Proper principle can be derived by analogy from Article 4 of the UN Charter. b) The obligations of membership can be carried out only by governments which in fact have the power to do so. (wouldnt this create incentive to overthrow?) 3. CSCE, Document of Moscow Meeting on Human Dimension a) The participating states: (1) Condemn forces witch overthrow a democratically elected government. (2) Will support the "legitimate" organs of the state (democratically elected) (3) Recognize the need to make further peaceful efforts concerning human rights, democracy and the rule of law. 4. Murphy: Democratic Legitimacy and the Recognition of States and Governments a) Thomas Jefferson: The will of the people may not necessarily be through democratic election. Monarchy can be recognized too. b) Woodrow Wilson: Injection notions of democracy into US recognition practice. Distaste for military suppression of constitutional democracy. This led him to endorse the Tobar Doctrine. c) Tobar Doctrine: States of the western hemisphere should deny recognition to governments that come to power pursuant to non-constitutional means. HOWEVER: this is difficult to maintain in practice. 5. Is Recognition Necessary: Estrada Doctrine a) Doctrine: Something insulting about interfering in the interior affairs of a state. Moving away from the practice of recognizing a government because its seen as unlawful intervention. b) The Estrada Doctrine is mainly understood to mean that recognition of the government is unnecessary once the state has been recognized. c) Is the Estrada Doctrine construed more accurately as proposing: (1) The sole criterion of effective control for deciding when to deal with a new government and (2) The avoidance of explicit and formal acts of recognition? (3) I think so, the whole idea of keeping state and government recognition separate is to protect the people from dangerous regimes (whether in power already, or attempting to take over.) If it is more relaxed it can be evaluated case by case allowing for more protection of the people of a nation. 6. HYPO: Note 4 pg. 360 a) In 1996, the Taliban took control of Kabul and 90% of Afghanistan. However, the northern alliance stayed as representing the country. Should the General Assembly have included the Taliban in the UN? b) Upside: condemnation of the way that the Taliban was acting c) Downside: the seat at the un was being occupied by a group that did NOT have control of the territory in question. Self Determination in state formation 1. Generally a) The will of the people in a particular territory to determine whether they should be constituted as a state. b) "on the whole, self determination was deemed irrelevant where the peoples will was certain to run counter to the victor's geopolitical, economic, and strategic interests." Cassese. p. 324 c) HOWEVER, not until the adoption of the U.N. Charter was the idea seen as a principle. d) Also seen in Friendly Relations declaration
3.

C.

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Karima Bennoune International Law and a Just World Order Spring 2011
2. e) affirmed as a human right in ICHR and ICCPR. Legal Consequences of Construction of Wall in Occupied Palestinian territory a) The Court notes that the notion of self-determination was enshrined in the UN Charter and reaffirmed by the General Assembly Resolution 2625: "Every state has the duty to refrain from any forcible action which derives people referred to [in that resolution] of their rig ht to self determination. The questions Crawford asks of self-determination: a) Who is the "self" in self-determination? b) What exactly does that "self" have the right to determine c) And how? d) However, there is a definite right to self determination. And there are different meanings for different situations. (1) Example: Specific meaning in regards to decolonization. e) What obligations do states have to protect the right of self-determination? (1) Respect it- follow it themselves (2) Promote it- take steps to ensure that the right is realized by other states The Case of East Timor (pg. 327) a) Background: East Timor is an example of long-unsettled decolonization. East Timor was a non-selfgoverning territory of Portugal. Portugal withdrew and Indonesia intervened and occupied it. In a resolution, the GA: (1) Called upon all states to respect the territorial integrity of East Timor as well as the inalienable right of its people to self determination (2) Called upon Indonesia to withdraw from the Territory (3) And called upon the government of Portugal as administering power to cooperate with the UN to enable the people of East Timor to exercise such right. b) Proceedings at the ICJ were initiated by Portugal against Australia, which had entered into an agreement with Indonesia concerning exploration and exploitation of the Timor Gap. The court dismissed the dispute on the grounds that Indonesia could not be made a party without consent. Thus, the court left unresolved the import of self-determination regarding offshore resources. c) Holding: The court confirmed that East Timor remained a non-self-governing territory and that its people had a right to self determination. The Case of Quebec (pg. 329) a) Rule: The international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, and cultural development. b) 3 questions put to the Canadian Supreme Court: (1) If there is a conflict, which source prevails? No need to answer. (2) Does the Canadian Constitution give Quebec the right to secession? NO (3) Does international law give Quebec the right to succession under the principle of selfdetermination? NO c) It is clear that international law does not give component parts of a sovereign state the legal right to succession by self-determination (1) Absence of a specific prohibition. International law does not explicitly state that right or the denial of that right. However, international law places a great importance on the territorial integrity of a nation state and, by and large, leaves the creation of a new state up to the domestic law of an existing state (2) The right of the people to self-determination. (a) Defining "Peoples". This definition is somewhat uncertain. It is clear that "a people" may include only a portion of the population of an existing state. (b) Scope of the Right to Self Determination. Distinguishes that there is international self determination and that it is an external right (as opposed to an internal right, i.e. within a country.) The Court also states that A state whose government represents the whole of the people residing within its territory, on a basis of equality and without discrimination, and respects the principles of self determination within its own internal arrangements, is entitled to protection under international law of its territorial integrity. (This is a really western, "democratic" answer!) (c) Colonial and Oppressed Peoples. This is not relevant to Quebec.

3.

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Karima Bennoune International Law and a Just World Order Spring 2011
Recognition of a Factual/Political Reality: the "Effectivity" Principle. As a court of law, they are only concerned with legal claims. "If the principle of effectivity is no more than that 'successful revolution begets its own legality', it necessarily means that legality follows and does not precede the successful revolution." (4) Notes: The concept that when there is nothing barring an action in international law (a) There is implicit acceptance in international law. The court disagrees with this notion here (first introduced in Lotus, which is now seen as outdated) 6. Uti Possidetis Juris (delimiting boundaries) a) Frontier Dispute (Burkina Faso/Mali) (p. 393) (1) Rule: There exists an obligation to respect pre-existing international frontiers in the event of a State succession whether or not the rule is expressed in the form of uti possidetis. Thus, the numerous declarations of the intangibility of the frontiers at the time of the declaration of independence of the African states are declaratory. The fact that the principle did not exist when the states declared such independence in 1960 does not foreclose its present application. (2) Question: Burkina Faso and Mali submitted the question of where the border is between them to the ICJ. The court looked at the principle of uti possidetis juris which literally means "as you possess." The Court used this principle to establish the frontiers. (3) Holding: (a) Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power. Maintenance of the territorial status quo and to secure respect for the territorial boundaries at the moment when independence is achieved. (b) The maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence. b) The idea that self determination inherits the borders of the colony. (1) Does this negate self determination? If you can self determine, shouldnt you be able to declare which land is yours? This creates conflict. (2) So how does the court marry the two ideas? It isn't the best solution, its the only s olution there is and there is a need for stability. (3) Attempting to preserve the hard won gains. International Organizations 1. Key Legal Questions a) Can an organization bring a claim against a state? What if that state is not a part of the international organization? (1) This can be answered by deciding whether or not the organization has an international legal personality b) Questions arose in deciding this: (1) Is the personality an inherent or objective attribute of international organization or does it depend on the constituent instrument and the powers expressly or impliedly granted to it. (2) If yes, is there a precise legal category of legal rights and duties (3) If no, does that mean the entity cannot be regarded as an international organization under international law? 2. Generally a) Usually defined as "inter-governmental organizations" but this is misleading. They can be made up of entities other than governments. b) Most advanced international organization: European Union. 3. Understanding the Legal Nature of the Organization a) First step entails reading the organization's constituent instrument, which is usually a multilateral treaty, but can also take the form of a resolution by a "parent" international organization. b) For example, the UN Charter established 6 principle organs: (1) General Assembly (2) Security Council (3) Economic and Social Council (4) Trusteeship Council (5) International Court of Justice (6) Secretariat
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Karima Bennoune International Law and a Just World Order Spring 2011
Second step is to study the prectice of the relevant organs since their inception, especially the rules of procedure they adopt, precedents in decision-making, opinions by legal counsel, and decisions by dispute settlers d) Third step is to study the broader field of international organizations law, i.e. basic legal norms and practices. Reparations for Injuries Suffered in the Service of UN - ICJ, 1949 a) Question 1: If an agent of the UN is injured in the performance of his duties, does the UN have the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due 1.) to the UN, or 2.) to the victim or to persons entitled through him? YES TO BOTH b) Answer 1: (1) When an organization brings the claim it will be presented in the same manner and regulated by the same procedure. Since this question is not settled by the actual terms of the Charter, the Court considers what characteristics it was intended to give the organization. (a) The Charter gave the organ special tasks so it is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality (b) In the Courts opinion, the Organization was intended to (and does) exercise and enjoy functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. (c) Can the organization bring this kind of claim? (i) The organization must be able to bring this kind of claim. (ii) The court refused to say what kind of reparations it could ask for, only that the amount of reparation should depend on the type of damage. (2) An injured party should not have to rely on the protection of his own state and risk his independence being compromised. (a) Upon examination of the Charter, it becomes clear that the capacity of the Organization to exercise a functional protection of its agents arises by necessary intendment out of the Charter. c) Question 2: If the answer to Question 1(b) is yes (which it is), how is action by the UN to be reconciled with such rights as may be possessed by the state of which the victim is a national? d) Answer 2: There is no rule of international law that assigns priority to claims. The parties should "find solutions inspired by good will and common sense"?? Doctrinal Split Interpreting Powers: Ultra Vires (beyond the powers) a) Questions (1) What elements of legal analysis should be included when deciding whether or not the constituent instrument granted certain powers to the organization? Specific provisions? Related provisions? Negotiating history of the instrument? Practice after creation? General purposes of creation? b) Certain Expenses of the UN ICJ 1962 (1) Rule: To determine whether expenditures are expenses of the Organization, they must be tested by their relationship to the purpose of the UN. (2) Question: In determining whether actual expenses authorized constitute "expenses of the Organization (within Article 17, P2)" the Court agrees that the expenditures must be tested by their relationship to the purpose of the UN. (3) Answer: The purpose is set forth in Article 1 of the Charter: (a) International peace and security and friendly relations (b) Achievement of economic, social, cultural and humanitarian goals and respect for human rights (c) "To be a center for harmonizing the actions of nations in the attainment of these common ends." (4) These purposes are definitely broad but also limited. (a) If the action was taken by the wrong organ, it may still be an "expense of the organization" c) Prosecutor v. Tadic ICTY, 1992 (1) Background: Tadic was the first defendant brought before the ICTY. He challenged the jurisdiction of the tribunal on the grounds that the Security Council had exceeded its powers under Chapter VII of the UN Charter (p. 10 supp) by establishing the tribunal.
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Karima Bennoune International Law and a Just World Order Spring 2011
Holding: The Appeals Chamber (this court) held that every tribunal has an inherent power to resolve challenges to its own jurisdiction. This inherent power extends to a power to determine the validity of the Tribunals own establishment by the Security Council. The Tribunal said that there were a number of questions to be asked to determine what actions or measures can be taken, particularly the establishment of the ICTY: (a) Was there really a threat to peace justifying the invocation of Ch. VII as a legal basis for the establishment of the Tribunal? (b) Assuming that threat existed, was the SC authorized, with a view of restoring or maintaining peace, to take measures at its own discretion, or was it bound to choose from those expressly provided in Articles 40,41,42? (c) In the latter case, how can the establishment of an international criminal tribunal be justified (since it is not one of the options in the charter)? (3) The Power of the Security Council to Invoke Chapter VII. See pg 10 Supp. The Security Council shall determine the existence of a threat to peace and also enjoy wide discretion under this article. This does not mean it's unlimited. (a) What is the extent of the SC's powers and its limits? The SC's determination (See p 10) has to remain within the limits of the purposes and principles of the UN Charter. (b) The armed conflict happening in the former Yugoslavia has been ongoing, there is no doubt that this falls under the category of "breach of the peace." (c) so, the defendant does not dispute the fact that the SC found that the conflict was a breach of the peace, but is contesting the measures that the SC took to remedy it. (4) The Range of Measures Envisaged Under Chapter VII. Once the SC finds that there is a breach of the peace, it enjoys a wide discretion of how to handle this. Two options: (a) SC can continue in spite of its determination, to act via recommendations (b) Or it can exercise its exceptional powers under Chapter VII (c) Court again reinforces just how broad the SC's discretion is. (5) The Establishment of the International Tribunal as a Measure Under Chapter VII. The tribunal stated that the examples in Articles 41 and 42 of the Charter were not exhaustive, but merely that: examples. (6) The Court finally held that the Tribunal was a lawful establishment. Nongovernmental Organizations 1. Generally a) Organizations are either governmental or non-governmental. b) NGO's are not the creation of States, but are formed under national law by individuals or private groups sharing a common non-profit objective. c) NGO's provide vehicles through which the transnational "civil society" can influence the decisions and actions of states and of international organizations along with the attitudes and conduct of diverse actors. 2. Questions: a) NGO's play an active role in the international law community and in some cases have a recognized legal status under treaties and other international agreements. Their individual focus's cover many, if not all, area's of international law. Accordingly, some questions arise from their existance: b) Should they be accorded the status of an international legal person? c) What kind of access do they have to the realm of international law and what are their functions? d) Can they be said to have effected international law? e) Given that NGO's are not formed by states or through a democratic process, are they really a legitimate voice in intl law? 3. Charnovitz: NGOs and Intenrational Law a) Who NGO's are and What they do (1) The Identity of NGO's (a) They are groups of persons or societies, freely created by private initiative, that pursue an interest in matters that cross or transcend national borders and are not profit seeking. (b) Everything about NGO's are contested, including the meaning of the term. (c) The UN system continues to use the term NGO because Article 71 of the Charter states: "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence." (2) NGO Functions in International Law
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Karima Bennoune International Law and a Just World Order Spring 2011
NGO's contribute to the development (most prolific here), interpretation, judicial application, and enforcement of international law. (b) The ability of an NGO to initiate cases is less extensive. b) Legal Status of NGO's (1) NGO Personality. This is a key factor in determining the rights and immunities of an NGO and its standing before the courts. (a) Generally enjoys legal personality only in municipal law (b) However, because they function in more than one country, they face the potential problems of being subjected to conflicting laws and inability to carry their legal status from one country to another. (c) NGO's have traditionally learned to maneuver without formal international personality. (2) NGO's as Consultation Partners. In the absence of international NGO law, Article 71 of the the UN Charter has served as a de facto charter for NGO's. Some Rules set up by the ECOSOC: (a) 1950 Rule required that the NGO be of "recognized standing" and that it "represent a substantial proportion of the organized persons within the particular field in which it operates." (b) 1996 Rule changed that and to and/or. (c) The 1996 Rule also adds that an NGO given status "have a democratically adopted constitution" and that it "have a representative structure and possesses appropriate mechanisms of accountability to its members 4. Leftover Questions About NGO's? a) International Red Cross? ICRC tends to be conservative and wary of being called as NGO. Dont want to be politicized. They are however, technically an NGO. b) Why is it important to separate profit agencies from non-profits? There is no one else that the agency answers to. Motive is NOT profit. Individuals 1. Status, Rights, Obligations: Classic View a) Individuals were seen to have no direct relationship to international law but represented by the state. Ex. Mavrommatis: court affirms notion that a state is entitled to protect its subject by resorting to diplomatic action. Thus it is the rights of the state at stake and not the individual right. b) There were some exceptions (pg. 448-49): (1) Trials for piracy and slave trading (2) Forceful intervention to protect its own nationals (3) Customary international law of state responsibility. (4) International agreements created individual rights (5) Private international law c) This classical view is fading, however (1) Individuals may now have standing as claimants IN SOME CASES in front of CERTAIN international tribunals. NAFTA example. (2) Individuals are also the actors who preform international law. I.e.- judges in the ICJ. However, they are not representing their state. (3) Entire body of law (human rights law) which endows individuals with freedoms. (a) Universal Declaration of Human Rights (p 356 supplement) (i) Directly affects individuals regardless of the state. (ii) The state is still present because for individuals to HAVE those rights, the state must ratify the treaty. (b) These are 'quasi-judicial' procedures. 2. Human Rights a) Lauterpacht: I Law and Human Rights (1) Did he see the fact that individuals had no recourse to have their rights upheld at the international level deminish them? (a) "The fact that the beneficiary of rights is not authorized to take independent steps in his own name to enforce them does not signify that he is not a subject of the law or that the rights in question are vested exclusively in the agency which possesses the capacity to enforce them."
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Karima Bennoune International Law and a Just World Order Spring 2011
Danzig Case Example (a) There is nothing in international law that prevents individuals from receiving rights from treaties. Lauterpacht felt that this was a "decisive blow" to the dogma of the barrier separating individuals from international law. b) O'Connel: International Law (pg. 451) (1) The individual is a member of the community, not an object. It is not good enough to say that the State is the medium between individual and international law. (2) The Mavrommatis case draws artificial lines because if a person does not have a legal claim in international law before the state takes it up, then what is the nature of the dispute before that occurs? 3. Rights of the Individual: Lagrande Case (Germany v. US) ICJ, 2001 a) Rule: The right created in the VCCR to be informed of the right to contact the aliens consulate upon arrest is a right vested in the individual and not the State. b) Background: From 1998 to 2004, the ICJ considered 3 cases involving the failure of U.S. law enforcement personnel to inform aliens of their right to contact their consulate. This right was contained in the Vienna Convention on Consular Relations (VCCR). c) Germany contends that when the US breached Article 36 they not only infringed upon the rights of Germany as a state, but also the rights of the Legrande bothers. d) US thought that treatment of individuals is inextricably linked to the state, and does not constitute a fundamental right or a human right. There is nothing in the preparatory works suggesting that this was a human rights document. e) Issue: Was this a question of human rights? Or is it a matter of agreement between states? f) Holding: Article 36 paragraph 1 creates individual rights which may be invoked by the national State of the detained person. The rights were violated. The Court looked at the language of the treaty "the said authorities shall inform the person concerned without delay of his rights under this subparagraph." Also, para1 (c) says that the detained person can stop the detaining state from giving the nationals state notice. g) Key thing: Courts have moved away from Mavrommattis 4. Obligations of Individual a) individuals under international law. Not under tribunals of any state, but in general b) Individuals who are accused of violations of the law of war can be punished by: (1) The country of which they are nationals, (2) The enemy (3) Or by "international authorities." c) Most important contemporary precedent is from post WWII era. Nuremburg and Tokyo tribunals d) Counsel for accused argue: (1) Intl law is only concerned with states, not individuals (2) When the conduct is the act of a state, an individual cannot be held responsible. e) These arguments were rejected because: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." 5. Pros/Cons of Holding Individuals Responsible a) Con- wont change STATE policy, just small scale b) Pro- more concrete than just sanctions. c) Shouldnt be seen as either individuals OR states being held accountable. Should be both Transnational Corporations Under International Law 1. The Status of Transnational Corporations in International Law a) Definition of TNC's: Private corporations that are incorporated in one state and do business in others. b) They are not generally subject to obligations and generally do not enjoy rights under international law. c) Some Statistics: (1) 77000 tnc's today. (2) Walmart by itself has 60000 suppliers. (3) They may have political power. They are subject to municipal law, but that is not seen as a sufficient mechanism to hold them accountable. 2. Regulating Transnational Corporations a) Murphy, Taking Multinational Corporate Codes of Conduct to the Next Level (pg. 492) (1) MNC's provide significant benefits to the countries in which they operate: (a) Provide jobs (b) Produce goods and services
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Karima Bennoune International Law and a Just World Order Spring 2011
Introduce technologies Develop markets (2) Despite and maybe because of this, there are concerns arising due to the increase in MNC's activities. (3) MNC's have done what one would expect them to do in a free market: seek out the least expensive means of conducting operations so as to maximize profits. (4) MNC's are politically powerful, mobile and complex. How to hold these entities accountable. How can international law and agencies help? Codes of Conduct: Challenge is that these codes are voluntary. (1) Strength: some publicity value. (2) Weakness: self monitoring, (3) UN system has been trying to do that: Code on the responsibilities of transnational corporations. Formed by the UN Sub-Commission of Human Rights in 2003. (a) Code set forth 6 types of rights that MNC's must observe: (i) The right to equal opportunity and non-discriminatory treatment (ii) The right to security of persons (iii) The rights of workers, such as rights against forced or child labor, remunerations that ensures an adequate standard of living, collective bargaining (iv) Respect for national sovereignty and human rights (v) Consumer protection (vi) Environmental protection (4) Murphy ended the piece with an air of doubt that anything positive would come of this selfregulation regime. (5) Developments Since Murphy: (a) Commission chose to as UN secretary general to appoint someone to look into these rights and how to uphold them. (b) Ruggie is this person (c) Ruggie took the position that he wanted to start over in developing norms. (d) He felt the sub-commission was trying to take existing int'l law and simply apply them to corporations and he felt that this is a mistake. (e) Hasnt come up with anything formal yet. (f) Focusing on state accountability with regards to consumers. (g) Also may use domestic laws.
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VIII. Dispute Settlement A. Generally 1. Peaceful resolution of disputes 2. Primarily among states 3. Project on International Courts and Tribunals: 125 international bodies 80 functioning a) Judicial or Quasi Judicial b) Judicial Bodies Mechanisms (1) Are permanent institutions (2) Are composed of independent judges (3) Adjudicate disputes between two or more entities, at least one of which is either a state or an international organization (4) Work on the basis of predetermined rules of procedure; and (5) Render decisions that are binding c) Quasi judicial generally satisfy some of the above requirements but not all of them (1) Usually non-binding (2) Example: Human Rights Committee does not meet last criteria d) Judicial Body is a diverse entity (1) ICJ general jurisdiction (2) International Criminal Courts can try natural persons for violations of international law (3) Specialized Subject matter jurisdiction (ie Law of the Sea) e) Non-Judicial means are available (1) Problem now is that there is no general available jurisdiction that covers resolution of all disputes (2) States that are disputants have to consent to the particular method as to resolving disputes (true in judicial means as well) (3) There is as yet no international court with general compulsory jurisdiction or with effective power to compel reluctant parties to submit to judicial authority

Karima Bennoune International Law and a Just World Order Spring 2011
Most international disputes never reach any international court (or indeed any formal mode of legal settlement), just as most disputes within domestic legal systems do not come to court at all, international disputes generally work their way through other avenues, of resolution and only exceptionally arrive before a formal tribunal Legal Obligation to settle disputes by peaceful means 1. The UN Charter a) Article 2(3) (1) to settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered (2) somewhat general in language and does not specify peaceful means that states need to use b) Article 33 (1) Lists a spectrum of peaceful means, including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies c) Chapter 6 of UN Charter (1) Role of UN Security Council in this process of peacefully deciding disputes (2) More limited view for security council here (3) Framework of consent it is up to the disputants to decide and SC will not take action over them (4) Member states themselves can bring disputes to the Security Council under Article 35 (5) Keep the matter from rising to a level of Chapter VII which is a much graver situation d) Article 36(3) (1) Legal disputes as a general rule should be referred by parties to the ICJ e) Article 38 (1) If parties cannot resolve the dispute then they are to refer it to the security council and the security council is to decide what is to happen (2) SC is not formally deciding it is asking the parties to do this and is not formally deciding or legally binding 2. The General Act of 1928 a) General Act for the Pacific Settlement of International Disputes adopted by League of Nations is the most notable attempt to establish obligations of peaceful settlement of all disputes b) Chapter 1 provides for the conciliation of legal disputes if the parties so agree c) If conciliation fails, Chapter 2 requires the submission of the dispute to arbitration or adjudication d) Non-legal disputes are to be submitted to conciliation or to an arbitral tribunal for settlement under Chapter 3 3. Other Dispute Settlement treaties a) Between the two world wars many treaties were concluding providing for conciliation or arbitration of disputes between the states b) After the UN Charter came into force, new treaties that dealt solely with peaceful settlement decreased sharply since the Charter itself includes obligations of pacific settlement (1) However, regional treaties were still thought to be useful to spell out obligations of dispute settlement and their implementation c) Many treaties dealing with other matters contain broadly stated obligations to settle disputes through negotiation, conciliation, arbitration, or judicial settlement (1) Many of the clauses bind all disputants to submit to the procedure at the unilateral request of one of them (2) Other clauses simply state that the dispute shall be submitted to arbitration or other means of settlement (3) The most common clauses in bilateral agreements provide for settlement through bilateral negotiations, consultation or other contacts of the parties they do not involve third parties and therefore do not provide for binding decisions The Meaning of Dispute 1. Applies to disputes, not to all disagreements between states a) Requires a degree of specificity and contestation 2. Mavrommatis Case a) Court defined dispute as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons 3. Northern Cameroons Case a) Authority that a disagreement is not a dispute if its resolution would not have any practical effect on the relations of the party b) Faced with a disagreement on the interpretation of a UN trusteeship agreement htat was no longer in force where the applicant made no claim for reparation
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Karima Bennoune International Law and a Just World Order Spring 2011
Judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations. 4. Nuclear Test Case (no dispute) a) The majority of the court considered that French government statements that the tests had stopped meant that a dispute between the parties no longer existed b) Dissent claims and legal grounds advanced by the applicants were rejected by the French government on legal grounds c) France later resumed a different form of testing 5. Prior negotiation necessary? a) Chorzow Cases: The manifestation of a dispute in a specific manner, as for instance by diplomatic negotiations, is not required. b) Court added that it is desirable that a State should not summon another State to appear before the Court without having endeavored to make it clear that the difference between them has not been capable of being otherwise overcome 6. Georgia v. Russia a) Whether a dispute in the legal sense exists is frequently tested through threshold objections to the jurisdiction of international tribunals b) Georgia invoked jurisdictional clause of the Convention on the Elimination of Race Discrimination (CERD) to which both states are parties, while Russia denied the existence of a legal dispute falling within the scope of CERD and that ICJ lacked jurisdiction c) Court ruled for Georgia on preliminary measures and found a disagreement between the parties concerning the applicability of Article 2 and 5 of CERD Non-adjudicatory procedures 1. Negotiations a) Negotiation is the dominant mode for settling disputes, or indeed for seeking to prevent them from arising in the first place b) Method remains completely within the control of the parties and need not produce an outcome favoring the side with the stronger legal position c) Obligation to negotiate under international law is an obligation of good faith and an open perspective d) Good Faith (1) North Sea Continental Shelf Case (a) The parties ate under an obligation to enter into negotiations with a view to arriving at an agreement. They are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of the parties insists upon its own position without contemplating any modification of it (2) Gabcikovo-Nagymaros Project Case (a) The court found the parties to be under a legal obligation to negotiate in order to consider in what way to fulfill all the multiple objectives of their 1977 treaty concerning works on the Danube River (3) Nuclear-Weapons Advisory Opinion (a) Article VI contains an undertaking to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date (b) Obligation here is more than to conduct; the obligation involves an obligation to achieve a precise result nuclear disarmament in all its aspects by adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith e) Many dispute settlement clauses apply to disputes that are not settled by negotiation (or diplomacy), thereby indicating that negotiations would normally be the route of first resort 2. Good-Office and Mediation a) Third Party Requirement (1) Good offices, inquiry, fact-finding, mediation, and conciliation all entail some form of thirdparty involvement in seeking a resolution to a dispute (2) Pros/Cons (a) Pros: impartiality, assistance in coming to an understanding of international law (b) Cons: logistic complexity (3) Typically the parties to the dispute agree to receive third-party assistance but are not bound to accept the outcome of the process or 3rd partys proposals for solution b) Good offices (1) Frequently provided by the UN Secretary General, or another international leader to help the parties toward mutually acceptable terms of settlement
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Karima Bennoune International Law and a Just World Order Spring 2011
Fact-finding/inquiry (1) Procedures under which a third-party investigates disputed facts and renders a report with conclusions: such investigations may go forward under the auspices of ad hoc or standing institutions, sometimes under the formal title of a commission of inquiry (2) Goldstone Report (3) Introduced by Hague Conventions and Pacific Settlement of Disputes (4) Dogger Bank incident in which Russia warship had fired on a British fishing fleet in the mistaken belief that a Japanese torpedo attack was underway after a report which concluded that there was no justification for opening fire, Russia paid an indemnity to Britain and the matter was considered closed d) Conciliation (1) Third party makes an impartial examination of dispute and attempts to define the terms of a proposed settlement which the parties are invited but not required to accept (2) More formal than good offices or mediation but still non-binding (3) Provided for in the Vienna Convention of the Law of Treaties and the Vienna Convention on Succession of States in respect to Treaties may be requested by any part to the dispute relating to the convention (4) Makes proposals (5) The objective of such procedures may be to reach an amicable solution or friendly settlement of a dispute under the treaty, without full -scale adjudication of the factual and legal issues (6) Valletta Procedure mechanism with elements of both mediation and conciliation (7) Bryan Peace Treaties an agreement to refer all disputes of every nature whatsoever which could not be otherwise settled to a standing Peace Commission, consisting of one national and one non-national nominated by each party and a fifth member chosen by agreement (a) 1914 Bryan-Suarez Majuica Treaty commission settled under Bryan framework to settle the amount of compensation e) Mediation (1) Distinguished from conciliation and fact-finding in that the mediator is expected to have a more active role by furthering negotiation and interacting with the parties in the making of proposals for settlement (2) Can oppose more flexible means not available to arbitrators because they are working with in the law and mediators are not constrained (3) Mediation of international disputes has frequently involved situations that for one reason or another could not be settled by resort to a legal institution of by application of international law (a) Pope, Cardinal Antonio Samore in Argentina/Chile dispute over the Beagle Channel f) Mediators/Facilitators are individuals, committees, or institutional bodies (1) Heads of governments and experienced diplomats have often performed that role (2) Jimmy Carter in Israel/Egypt conflict that led to Camp David accords (3) Nicolas Sarkozy in Russia/Georgia Conflict Dispute Settlement through International Organizations 1. United Nations a) UN provides a forum for negotiated settlement of all sorts of disputes, as do regional organizations with their regions or specialized agencies within their sphere of competence b) UN Secretary general can provide good offices in his own person or can designate a Special Rep. for any of the numerous conflicts demanding engagement at a given time c) UN SC has authorized the Secretary-General to seek to facilitate settlement of internal disputes between competing factions in a country d) Example: Civil War in El Salvador, conflict in ex-Yugoslavia e) Article 52(3) of the UN Charter would appear to express a preference for prior resort to dispute settlement through regional arrangements before recourse to the UN 2. Honest Broker a) Should regional organizations position themselves as impartial mediators for the resolution of disputes or should they very openly take sides? b) Argument that the UN should strike a balance, needs to be impartial to resolve disputes but at the same time cannot stand aside to grave violations of international law c) UN is more even-handed, and regional organizations lack resources and experience of the UN d) When an organization is perceived by one party as hostile, it prejudices its opportunity to act as a third-party intermediary or to have its officials perform that role
c)

E.

Karima Bennoune International Law and a Just World Order Spring 2011
IX. The International Court of Justice A. Generally 1. Two kinds of jurisdiction: a) To decide contentious cases b) To render advisory opinions 2. Challenges a) Too many cases and limited resources b) Non-appearing defendant c) May not have all access to a particular case d) Effectiveness e) Non-compliance f) States do not want to risk losing a case when the stakes are high or be troubled with litigation in minor matters 3. Organization/Background a) Came into being in 1946 replace PCIJ (1) Permanent Court of IJ had a better record almost always complied with (2) very similar to the PCIJ (3) Permanent Court of International Justice was the ICJ's predecessor. Their jurisdiction and precedent is seen as continuous. b) created by Article 92 of the UN Charter c) organized in accordance with the statute of the International Court d) Judge are elected through security council and general assembly (1) 5 wetserns, 3 asians, 3 western Europeans, 2 latin americans (2) 15 total no more than one national of any state (3) Permanent members of the security council generally have judges of their nationality on the bench (4) Usually sit as a full bench (a) Sometimes small chambers on certain small issue (5) A "gentlemen's agreement" governs the distribution of seats among the various regions of the world. e) All questions are decided by majority vote of judges present but President can use a tiebreaking vote if there is a tie f) Day to day working can be difficult because come from many countries and speak many languages (1) Court only works in English or French g) Judges do not have to recuse themselves from cases on their home state (1) can participate in deliberation involving their home home state, but they do have to recuse themselves if they were previously involved in the actual issue h) In a contentious case (state v. state litigation) if one of the parties does not have a judge of its nationality on the bench it can designate a judge ad hoc (1) There is a big debate whether or not this is proper because judges are not supposed to be reps of their home state/unbiased (2) The Wall Case angry dissent from US Judge because he felt Jordanian Judge had been involved on work in the issue on the separation barrier and should have recused himself but he did not i) New popularity in 1990s came out of Nicaragua Case where it was willing to rule against a powerful state when it believed it just to do so that many developing countries began to take their disputes to the ICJ j) Security Counsel has force to enforce ICJ opinions but they are reluctant to do so 4. Ipso Facto Statute of ICJ a) All UN members are seen as ipso facto parties to the I.C.J. b) Core principles that apply to all of methods of granting jurisdiction (1) Consent (2) Reciprocity c) Simply because all parties to the UN Charter are parties to the ICJ does not mean that the court automatically has jurisdiction over all cases. B. Contentious Cases 1. Methods for Jurisdiction a) Article 36(1): Treaty or Special Agreement (1) Consent is given ad hoc or by prior agreement in a treaty (2) Assent to jurisdiction all cases referred to ICJ come within its jurisdiction (3) often done through submission of a Compromis

Karima Bennoune International Law and a Just World Order Spring 2011
sometimes assent has already been given and have already consented to the jurisdiction in a treaty dispute settlement clause (5) Example: Page 382 in Supplement Genocide if a state ratifies treaty it has agreed to the jurisdiction of the ICJ in regard to it and other people who have agreed to the treaty b) Article 36(2): Compulsory Jurisdiction: Unilateral Declaration of Acceptance (1) Consent is given by accepting compulsory jurisdiction (2) if a state that is a party to the statute makes a voluntary declaration granting the court jurisdiction over a range of kinds of disputes then the court has compulsory jurisdiction over those sorts of disputes between that state and other states who have made a similar declaration (a) Reciprocity have accepted the same obligation c) Article 36(5) (1) compulsory jurisdiction made by a statement under old court of PCIJ which is still seen to be enforced Forum Prorogatum a) Implicit Consent (1) The idea is a state can indicate consent to be sued by not raising any objection to a decision on the merits (2) Example: State B responds to State A on the merits without objecting to the jurisdiction b) Consent is typically established by reference to the terms of a treaty or special agreement under Article 36(1) or a unilateral declaration of acceptance under Article 36(2). c) Haya de la Torre Case (1) Forum prorogatum is the idea that if a state comes up to the court and pleads to the merits of the claim without objecting to the jurisdiction of the court. (2) Conduct is sufficient to confer jurisdiction on the court (3) This is PURELY SPECIFIC to the case at hand. d) Reciprocity in an Article 36(1) case is usually found in the mutual obligations of the parties under the treaty invoked by the applicant. In an Article 36(2) case, the Court must determine whether both parties "accepted the same obligation." Jurisdiction by Special Agreement a) Article 36(1) b) The use of a "compromis" or special agreement (1) The ICJ's involvement is likely to be most successful here (2) There are some limits even in this area (a) The Court may only answer those questions brought to it. c) Pedra Banca/Palua Bata Puteh (Malaysia/Singapore) (1) For example, in the Malaysia/ Singapore case the court could not resolve whose maritime features were whose, because it was NOT an issue brought before the court. The court simply held that whosever waters the feature was in was whose they belonged to Jurisdiction by Treaty a) Article 36(1) b) Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda) (pg. 588) (1) Rule: Even where the issue is one of jus cogens, the Court may not create an exception to the principle that jurisdiction always depends upon the consent of the parties. (Court does not want to lose legitimacy.) (2) DRC brought case before court but the court held that they did not have jurisdiction over Rwanda. (3) Issue 1- Convention on Genocide (a) Genocide convention clause for jurisdiction. Problem is that Rwanda has entered a reservation to the dispute settlement clause. Rwanda had subsequently said that they were going to withdrawal all reservations, but did not give express notification. (4) Issue 2- CEDAW (Womens Convention) (a) Under this, the article required that the dispute be the subject of negotiations, and THEN arbitration and only then to the ICJ. (Which is was not. (5) Enforcement issues (a) Legitimacy if states agree to what it is doing they are more likely to participate and comply with judgment and have a general positive attitude to the court in the future, but if you are dragging states in against their will you are likely to have non appearing parties and make it impossible to enforce the judgments
(4)

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Karima Bennoune International Law and a Just World Order Spring 2011
(b) (c)

Opposite view should interpret jurisdiction as broad as possible so it can solve some of these disputes leading up to jus cogens violations Court says we do not care how grave the violation of international law is here the issue is state sovereignty no matter how grave the harm we cannot take jurisdiction in this case

5.

6.

Article 36(2) a) Compulsory Jurisdiction (1) suggests broad jurisdiction (2) There are now about 66 states bound by this sort of declaration out of 192 UN members b) Scope (1) Guinea-Bissau taken on almost everything that is listed under the optional clause (2) Reservations are not expressly provided for here but they are widespread. (3) The most common reservation excludes disputes where the parties have agreed to settle by other means of settlement c) Examples of Declarations Recognizing Compulsory Jurisdiction p. 594 (1) There's a question as to whether declarations like the one US made are shielding states d) Limits (1) United States puts some limits on the scope of reservations (a) Leave the door open what is the problem? Based on the domestic jurisdiction of the US a reservation that creates a self-judging formula as determined by the US (b) Also gets used against the state because if US is trying to sue other states, those states too can claim reciprocity and therefore decided this is in our domestic jurisdiction and compulsory jurisdiction does not apply Objections to Jurisdiction or Admissibility a) Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) (1) Rule: See answers to the 5 grounds of inadmissibility below. (2) Dispute involving the contra-war involving Nicaragau where US is supporting contras fighting against the government that had to come power over a violent overthrow of the past dictatorship (3) Question: When Nic. makes unilateral application against the US, can the ICJ take jurisdiction in this case? (4) What is the basis of jurisdiction claimed by Nicaragua (a) Declaration of 1929 (b) Conduct of parties (c) Multilateral treaty - Treaty of Friendship (5) United States argued that there were five grounds of inadmissibility: (a) Nicaragua failed to bring before the court parties whose presence and participation is necessary for the rights of those parties to be protected (intervening 3rd parties) (i) Judgements are binding to the parties before the court (Article 59) and other affected states may come before the court. The Court does not have the power to force an interested party before it. (b) Nicaragua is requesting that the court determine the existence of a threat to peace which is "within the competence of the Security Council." (i) Both organs can work concurrently (separate but complementary) (ii) Security council is a political body decisions in SC are not necessarily on the basis of international law itself, they are often shaped by politics and views of ICJ are based solely on international law to the facts (in this case about a certain amount of force) (c) The position of the Court within the U.S. system, including the impact of the proceedings. (i) Sort of skips over this answers with Q2. (d) The inability of the judicial function to deal with situations involving ongoing armed conflicts. (i) Any judgment is limited to upholding such submissions of the parties that has been supported. (e) Non-exhaustion of the established process for the resolution of conflicts in Central America. (i) The fact that negotiations are being actively pursued does not bar the court from exercising its judicial power. (6) Bottom Line: no reciprocity because it does not apply in this way it was a unilateral commitment US made and it concerns temporal aspect here and that is different

Karima Bennoune International Law and a Just World Order Spring 2011
Upsetting to US govt and Regan Administration fact that the issue in question concerned not only the issue of force but the ongoing question related to US policy and use of force (a) Article 51 is within the security council and not ICJ and inappropriate for court to take jurisdiction here because sovereignty is at stake and national security is at stake Provisional Measure of Protection a) Article 41 (1) The Court has the power to indicate, if it considers the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of the parties." (2) Two Criteria invoked are: (a) Urgency (b) Irreparable injury (3) Prerequisite: prima facie basis for jurisdiction but not a determination of that question (4) To preserve the respective rights of the parties (similar to interlocutory injunction) to avoid prejudice to case b) Application of the International Convention of the Elimination of all forms of racial discrimination (Georgia v. Russia) ICJ (1) Facts- In conflict between Russia and Georgia, Georgia claims that Russia implemented racially discriminatory policies in South Ossetia and Abkhazia. Georgia believes it can ground jurisdiction by using the CERD asks for provisional measures to be granted by the court (2) Holding- The court orders provisional measures directed at both parties: (not exactly what Georgia asked for) (a) Refrain from racial discrimination (b) Dont sponsor discrimination (c) Do all in their power to ensure: (i) Security of persons (ii) Right of freedom and movement (iii) Protection of property (d) Ensure that public officials and authorities do not discriminate (3) Scale of Russian use of force is entirely disproportionate and causing many civilian casualties and Georgia government has also made violations as well (4) Vote 8 to 7 divided about issue right down the middle negotiations on the court to draft more measures that the court would agree to (a) End up with is Western judges on one side and global south and eastern European judges on the other side (b) Not being specific not saying which acts might fit into these categories quoting from the underlying treaty, saying respect the law (5) Dissent- They feel as though the jurisdictional element was not met in CERD before the court set provisional measures. But even if jurisdiction WAS met, the conditions of irreparable harm and urgency, in light of the cease-fire and the return of people to their homes, were not met. (6) Which should come first? Jurisdiction or Provisional Measure? Procedural Problems a) Non-Appearance (1) The statute of the court does not provide for entry by default (2) If a party fails to appear or does not defend, Article 53 requires the court to satisfy itself that it has jurisdiction (3) Schachter argues that a party that does not appear may even have an advantage procedurally because it will not need to answer questions, etc. (4) The Institut de Droit International - Note 1, Article 4 non-appearing parties are still bound b) Third Party Intervention (1) A state may intervene in a case between other states in two kinds of situations. (a) Article 62: (i) Permissive intervention: a state which considers that "it has an interest of legal nature in the case" may be permitted to intervene. If a state does intervene, the interpretation of the treaty will be binding on it too. (b) When the state requesting intervention is a party to the convention that is before the Court (i) General approach to this is restrictive (ii) Really must have a stake in interest before the court
(7)

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Karima Bennoune International Law and a Just World Order Spring 2011
Difference first form is discretion of court and second is by right but then the state is bound and states are less likely then to intervene c) Counterclaims (1) Article 80 (2) Must be: (a) directly related to the matter of the claim of the other party; and (b) it has to come within the jurisdiction of the court. (cannot introduce an entirely separate dispute has to be specifically related to the subject matter of the dispute before the court) d) Compliance with Decisions (1) Article 59: binding (2) Article 94 of the UN Charter provides that members of the UN "undertake to comply" with the judgment of the court. In the event the party does not comply, the prevailing party may have recourse under Article 94 P2, of the Charter to the Security Council, which may make recommendations or decide upon measures to bring about compliance. (3) The book notes that generally compliance has been good and appears to be improving. Advisory Opinions (second form of ICJ jurisdiction) 1. In General a) The Court may give an advisory opinion on "any legal question" requested by a body authorized by or in accordance with the UN Charter. In order for the Court to issue an advisory opinion: (1) The agency requesting the opinion must be duly authorized to do so (a) States cannot directly request advisory opinions, but they may to an agency and ask that body to do so. (b) UN Security Council and General Assembly have a broad mandate to do so (2) The opinion requested must be on a legal question (3) The question must be one arising with the scope of the activities of the requesting agencies. b) In general, the Court will not turn down the request for an advisory opinion unless there is a glaring contradiction with the Court's charter. (1) The Court has been asked to render some 25 opinions and has done so in almost every case where a request was made (2) Only once did it find that it did not have jurisdiction. (a) The World Health Organization requested an opinion on the legality of the use or threat of use of nuclear weapons. (See below) c) An advisory opinion doesnt have any binding legal effect in itself bu t sometimes the interpretation an application of an instrument in dispute will be submitted and that opinion is binding on the two parties. 2. Nuclear Weapons Case ICJ, 1996 a) Background: The World Health Organization requested an Advisory Opinion on the topic. The Court would not give the opinion due to jurisdictional problems. General Assembly asked ICJ whether permitted under Int. Law to use or threaten to use weapons b) Holding: (1) First, the body requesting the opinion must be "authorized by or in accordance with the Charter of the United Nations to make such a request." The court would answer the question when posed by the General Assembly or the Security Council (Provided in Article 96, p 1) (a) The question posed was not legal (i) While the question does have political aspects, that does not mean it is not a legal question. (b) The court has discretion in answering questions (i) The Court "may" give an advisory opinion Article 65, p1 (c) The question is vague and abstract (d) The opinion may adversely effect disarmament negotiations (e) The court would be going beyond its judicial role and would take on law making capacity 3. Legal Consequences of Construction of Wall in Occupied Palestinian Territories ICJ, 2004 a) Background: The General Assembly asked the Court the above question. Israel and other countries argued that the question shouldn't be answered either for lack of jurisdiction or for prudential reasons. The Court re-articulated its thinking in Nuclear Weapons and then answered specific objections concerning the manner which the question was presented in relation to parallel efforts in the Security Council and elsewhere to achieve comprehensive settlement. b) Question of ICJ: What legal consequences arising from construction of wall in occupying Palestinian Territory
(2)

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Karima Bennoune International Law and a Just World Order Spring 2011
c)

Holding: (1) It should take jurisdiction (a) fact that engagement of S.C. with this problem to not mean general assembly acted ultra virus (outside its mandate) to ask this question of the court (i) Although the SC took action, did not mean that the ICJ could not give an opinion. "A request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation." see Article 12, p 1 of UN Charter.

Karima Bennoune International Law and a Just World Order Spring 2011
Legal matter to merit an advisory opinion (i) not vague or abstract it is legal question (ii) court reiterated position in Nuclear Weapons while it certainly has political components the specific question is focused on the legal aspect of that question and is appropriate for questions of an advisory opinion (2) Is this actually a dispute between Israel and Palestine? Which would lead to contentious litigation. (a) The lack of consent to the courts contentious jurisdiction by interested states has no bearing on the Court's jurisdiction to give an advisory opinion. (b) The UN has been involved and is deemed to be a direct concern of the UN. (c) It is not clear what influence the Courts opinion may have on any further negotiation between the two parties. (d) We learn it is indeed possible to have an advisory opinion about a matter that is contested between states or state like entities (i) We also learn that the ICJ understands disputes between states may have international implications beyond the realm of those 2 states (3) Israeli government strongly contested this (a) It felt that it did not consent to the litigation was dispositive to the court (b) Paragraph 47 ICJ really contests that (c) Sharp contrast to the realm on contentious litigation 4. In general court has taken jurisdiction in most advisory opinions a) Except glaring problemWorld Health Organization asked for advisory o pinion on Nuclear Weapons wait your mandate has nothing to do with Nuclear Weapons b) New one Declaration of Independence of Kosovo International Law in National Law A. How do the systems interface? 1. The state is responsible to assure that its constitution and its laws enable its government to carry out its international obligations 2. A state cannot plead its own law as a reason for non-compliance with international law a) France v. US b) Article 46 of Vienna Convention B. 2 Theories 1. Monism a) Doctrine: Internaitonal Law and domestic law are part of the same legal system and in that system International law is higher than domestic law b) Example: In Europe like Netherlands and Germany (civil law systems) 2. Dualism a) Doctrine: range of positions that claim international law and municipal law are separate and operate on different levels (1) Can only be enforced in domestic law if it is incorporated in domestic law (2) In the case of a conflict between international law and domestic law, assume municipal court would apply municipal law b) Example: US Legal system (1) Common law systems tend to be dualist and civil law systems tends to be monists due to differing approaches of jurisprudence (2) US is a mixed system but at heart is a dualist system c) Criticism of Monism (1) Reduces municipal law to the status of a pensioner of International law does not take international law that seriously (2) Focus on ways in which it can impede implementation of obligations of the state internationally C. I-Law requires states to comply with international obligations 1. How should it be achieved internally? a) Usually does not take apposition on how it should be achieved internally b) how it chooses to implement them through judiciary or legislature, I law does not take a position and at end of the day result needs to be achieved c) Exceptions few international treaties require modes of implementation (1) Covenant on Civil and Political Rights adopt legislation (2) Torture require them to make torture a criminal offense 2. Potential Problem (related back to enforcement) a) States can be in compliance with domestic law but in violation of international law obligations
(b)

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Karima Bennoune International Law and a Just World Order Spring 2011
States generally try to avoid these situation by not taking on international obligations at all or perhaps not ratifying a treaty at all or being a persistent objector to a norm or by changing their domestic law Customary Internaitoanl Law in the US 1. The Paquete Habana Case a) Part of the law of the land in the United States b) Why did Justice Grey use this to solve the problem (1) No domestic or treaty law on point c) Long established jurisprudence in the US 2. Henkin what does it mean to say International law is part of our law a) Limitations Paquete Habana placed on customary international law in US law are not necessarily always applicable (1) Those who argue differently would argue that unlike treaties, which the court has held to be equal to acts of Congress, customary international law is subject to repeal by subsequent acts of Congress; indeed, it cannot be given in the face of even an earlier act of Congress (2) This view relies on repeated references in legal literature to customary law as common law, which, it is argued is inherently inferior to legislation b) However, since The Paquete Habana, the Court repeatedly has emphasized that international law is the law of the land, and it has given effect to principles of customary international law as the law of the US c) But if for the states customary international law had only the status of their common law, it was presumably subject to modification or repeal by the state legislature. If so, too state courts could decide for themselves what international law requires, and issues of customary international law, unlike questions arising under treaties, would not raise federal questions, and could not be appealed to the Supreme Court for final adjudication. Fifty states could have fifty different views on some issue of international law and the federal courts might have still another. 3. Erie R.R. Co. v. Tompkins a) Holding: IN suits based on diversity citizenship jurisdiction, a federal court was bound to apply the common law as determined by the courts of the State in which the court sat. On that basis, some thought that the federal courts must also follow State court determinations of customary international law. b) Rule: It is now established that customary international law in the US is a kind of federal law, and like treaties and other international agreements, it is accorded supremacy over State law by Article VI of the Constitution. Hence, determinations of international law by the Supreme court of the US, like its interpretations of international agreements, are binding on the states 4. Sosa v. Alvarez Machain US Supreme Court, 2004 a) Specific to US law b) Supreme Court appears to have accepted the essential features of the standard position by treating customary international law as federal law suitable for judicial application (even while taking a restricted view of the scope of customary norms that the Court would be prepared to enforce in the contest of the particular statute before it, the Alien Tort Statue) c) Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way d) Court says it would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals 5. 2 views historically a) via the common law (inherited from England) b) comes to the US by virtue of International statehood 6. Article 6, Paragraph 2 of Constitution a) treaties are part of the land but no greater than act of congress b) Prevail over state law but have the same status as federal law c) Later in time rule prevails d) Charming Betsy Provision (1) Where a reconciliation between domestic and international law is possible should make it interpret in accordance with international law 7. Restatement of Law, 3rd, Foreign Relations Law of US 111 a) International law is part of the law of the US and supreme over state law and procedurally, cases arising under international agreement are for determination of the federal courts b) Courts are to give effect to treaties agreed to by the US unless those treaties are non self executing
b)

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Karima Bennoune International Law and a Just World Order Spring 2011
112: The determination and interpretation of international law present federal questions and their disposition by the US Supreme Court is conclusive for other courts in the US 8. Role of Executive Branch a) General approach (1) give great deference to the executive branch because it is the branch that represents the US internationally and seems to need to speak with 1 voice where possible on this question 9. Banco Nacioanl de Cuba v. Sabbatino a) Holding: determined that the policy of United States federal courts would be to honor the Act of State Doctrine, which dictates that the propriety of decisions of other countries relating to their internal affairs would not be questioned in the courts of the United States Treaties in US Law 1. Missouri v. Holland US Supreme Court, 1920 a) Facts: Congress had passed laws regulating the hunting of migratory waterfowl. However, several states objected to this theory and successfully sued to have the law declared unconstitutional, on the premise that the United States Constitution gave Congress no enumerated power to regulate migratory bird hunting. Congress, disgruntled with this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of the protected migratory birds an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918. The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic. b) Domestic concerns of federalism and international law concerns under treaty obligations in this case c) Being in the national interest that US acts in concerted way at the international law suggesting treaty power here is more significant than terms of federalism d) Holding: the law was in fact constitutional, noting that the treaties clause of the Constitution (Article VI, clause 2), sometimes known as the "supremacy clause," makes treaties the "supreme law of the land," a finding that trumps any state-level concerns with regard to the provisions of any treaty (though it does not trump other provisions of the constitution), and further implying that treaty provisions were not subject to questioning by the states under the process of judicial review. e) The Bricker Amendment: attempt to reverse this (1) a series of proposed amendments which would have placed restrictions on the scope and ratification of treaties and executive agreements entered into by the United States (2) The Bricker Amendment nearly passed Congress with the required two-thirds majority. (3) Treaty cannot become law in US except for an act of congress (4) Does not succeed formally but some see the ghost of Bricker Amendment (5) More recently, a similar provision has been proposed as the fourth article of the Bill of Federalism 2. Breard v. Greene a) Holding: the Court denied the stay applications and all other relief. The majority of the Court concluded that, because he had procedurally defaulted it, Breard could not raise his Vienna Convention claim on federal habeas corpus review. Moreover, the Court reasoned that Breard could not have demonstrated that the alleged violation of the Vienna Convention had an effect on his state trial that ought to have resulted in the overturning of his conviction. Additionally, the Court found that the Vienna Convention did not clearly provide a foreign nation with a private right of action in U.S. courts. b) the case is also notable, as a precedent, because it is one of the most recent affirmations at the U.S. Supreme Court level of the continued validity of the long standing U.S. constitutional law principle that a duly Senate ratified treaty may be overridden by a later domestic statute enacted by mere majorities in each house of Congress. Most countries do not permit treaties to be amended by domestic laws, and instead hold them to be superior to all legal enactments except the provisions of the national constitution in effect when the treaty was adopted. 3. Reid v. Covert US Supreme Court, 1957 a) Narrowed M v. H b) Treaties in US are not understood to contravene the Bill of Rights in particular c) Holding: the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty," although the case itself was with regard to an executive agreement and the treaty has never been ruled unconstitutional Later-in-time Rules 1. Whitney v. Robertson
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Karima Bennoune International Law and a Just World Order Spring 2011
Issue: Whether a treaty supersedes conflicting acts of congress. Holding: Both self-executing treaties and acts of Congress are considered supreme laws of the land and both should have effect. When they conflict with each other, the one last in date will control the other. Since the acts of Congress were dated last, they control. c) Rule: international treaties are significant but not more significance than a federal law and if there is a later in time federal law that conflicts with a treaty the federal law will prevail Self Executing v. non-self executing a) There is a distinction between self-executing and non self-executing treaties b) Self executing to not require legislation to make them operative in domestic law (1) When language is more general or broad then legislation is needed In Practice a) when US ratifies treaties Senate will insist on a report on whether it is self or non self executing b) Problems when some are deemed non-self executing they do not enact the legislation and then there can be a problem but nothing inherently volative in making the distinction - can get themselves into trouble Medellin v. Texas a) Facts: Mexican national and convicted of murder in Texas for raping and murdering 2 young girls. On Appeal and in habeus petition claims he has not been informed of his right to Mexican consulate and prejudiced his defense. He cites the Avena Case where 51 named Mexican nationals are entitled to review reconsideration of their conviction in the US b) 2 Questions: (1) Is the ICJ Avena Decision directly enforceable as law in US (2) Does Bushs Memo provide review and reconsideration of the claims of the 51 Mexican Nationals named in Avena without regard to state procedural default rules c) Holding: Neither of this are directly enforceable federal law d) Reasoning: (1) Court is arguing that submitting to ICJ jurisdiction and agreeing to be bound by the outcome are not the same thing (2) Reads optional protocol as a bear grant of jurisdiction (3) Supreme Court interprets 94 of the UN Charter effect of ICJ decisions (a) Relying on executive branches interpretation of Article 94 it says that it undertakes (not shall or must) (b) Subparagraph 2 referral to Security Council as the sole remedy for noncompliance (i) Fact that this remedy is available proves that ICJ judgments are not meant to be enforceable and Justice Roberts says it is fatally undermined by Article 94 (ii) Separation of powers concerns here (4) Medellin argues for new paradigm for interpretation of treaty (a) Departure from rigid textualism (b) Majority is willing to look at negotiating and drafting history and other signatory nations (c) Majority criticizes way in which he says it should be interpreted because there will be an Indeterminative approach and treaties would be in the view of a blank check to the judiciary (5) Not in and of itself a binding federal law and would preempt state law and we see a real emphasis on the domestic plane (a) separation of powers and federalism and in a way a departure from Missouri v. Holland where more of an emphasis on need to resolve certain issues internationally e) Dissent (1) Concern that our decision casts doubt on some 70 odd treaties under the ICJ to roughly similar decisions (2) Majority response: they are still international obligations and congress could choose to give them effect (3) Breyer Dissent very different view (a) Self-executing why in his view are treaties most often not clear on what needs to be done to enforce them on the domestic level
a) b)

2.

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Karima Bennoune International Law and a Just World Order Spring 2011
What might need to be done in US might not need to be done in the Netherlands very different legal approaches so it is very difficult for a treaty to specify what needs to be done in each system so treaty is most effectively implemented (ii) Criticizes majority for relying on this point (b) Why are they clearly self-executing? (i) Use of the word compulsory (still looks at text) (ii) Right (iii) Final and binding: Majority has suggested that because he was not a party to the Avena Case in the view of the majority Medellin is not a party and ICJ judgments have binding force on the parties (what language is really focusing on is common law and civil law approaches) (iv) Derivative claims in international law representing US nationals at the international level and give rise to remedies that individuals can claim in state courts f) Justice Stevens Concurs on much of the holding, but departs in some ways (1) Much of it is directed towards the state of Texas and up to Texas to protect the breach of another (2) In future need to find ways to notify defendants of their rights (3) Make sure Medellin was not prejudiced difficult for him to show it was prejudiced by lack of consular notification (4) Why? (a) Reciprocity of enforcing Vienna Convention when American citizens abroad are arrested (5) Separating out issue from the mechanism from meeting that obligation inside the United States How Oklahoma dealt with a similar situation a) Torres Case grants stay of execution and hold evidentiary hearing on whether not it prejudiced his case and in meantime commutes death sentence to life in prison Hamdan v. Rumsfeld a) Facts: Bodyguard and driver for Osama Bin Laden and sent to Guantanomo Bay and Bush commands he is to be tried before a military commission and is convicted b) Question: The case considered whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention c) Holding: military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated. (1) Focuses on the interpretation of Common Article 3 of the Geneva Conventions and challenging executive branches reading and interpretation of this treaty (2) Hamdan is Yemeni national captured in Afghantistan in 2001 and Bush says should be tried before a military commission and conspiracy to carry out 911 attacks and challenged authority of military commission to challenge him (a) Court says it is not authorized by congress and violates uniform code of international justice and Geneva treaty which US is a party to (3) majority actually takes divergent approach from that advanced by the executive branch (a) US argues that because Al Qaeda is not a state he is not entitled to protections of Geneva conventions (i) Court says not relevant because common article 3 applies to noninternational armed conflict (civil wars) (b) US argues does not apply because the problem is international (i) Court says this is wrong and looks at question as what does it mean to be a conflict not of an international character he understands this as not being limited to a conflict between nations but a conflict that takes place across national boundaries (all entities involved do not have to be states for conflict to fit into this character) (4) In fact, common article 3 is applicable to Hamdan (5) What does it actually require?
(i)

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Karima Bennoune International Law and a Just World Order Spring 2011
It requires that he be tried by regularly constituted court Looks to a range of sources to define Geneva conventions and Red Cross commentary finds this includes ordinary military courts but excludes all special tribunals (these would not be regularly constituted courts) (6) See the willingness of majority to interpret treaty independent of executive branch and contradict it and do so in a controversial area Roper v. Simmons US Supreme Court, 2005 a) Facts: This case, which originated in Missouri, involved Simmons, who, in 1993 at the age of 17, concocted a plan to murder Shirley Crook, bringing two younger friends, Charles Benjamin and John Tessmer, into the plot. The plan was to commit burglary and murder by breaking and entering, tying up a victim, and tossing the victim off a bridge. The three met in the middle of the night; however, Tessmer then dropped out of the plot. Simmons and Benjamin broke into Mrs. Crook's home, bound her hands and covered her eyes. They drove her to a state park and threw her off a bridge. b) Holding: it is unconstitutional to impose capital punishment for crimes committed while under the age of 18 c) Importance: Use by Justice Kennedy with regard to juvenile death penalty with foreign and international law to interpret the US Constitution d) Constitutionality of juvenile death penalty (1) I Law sources sites the US Convention on the Rights of the Child (every state has ratified except US and Somalia) he is not saying it is binding but is looking to it as a relevant source for formulating his constitutional interpretation (2) Looks at practice of other countries only 7 other countries have executed juvenile offenders since 1990s Iran, Pakistan, Saudi, Nigeria, Congo, China as a de jure matter the US is alone (3) While not controlling our outcome, provides information about our conclusions (Scalia in the dissent is highly critical of this approach)
(a) (b)

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Overall
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US Approach is simply one way of doing it a) many other countries take very different approaches South African Context a) International Law must be used to interpret the Bill of Rights b) In South Africa national security can only be pursued in accordance with international law

Human Rights H. Foundation of Human Rights Law 1. Overview of History/Structure a) Traditionally governed sovereign states b) Human rights law is how states treat population subject to their jurisdiction questions black box approach to sovereignty c) Way in which state treats its own population is core radical departure from classical international law and looking inside the sovereign state d) Positivism rights only granted by state accord because human rights are thought to apply to all human beings not because states agree to them but because the yare human kind of a natural law ghost in international law e) 20th century age of human rights f) Henkin coined the second half of the 20th Century as the "Age of Rights," "reflecting the view that, with the end of the Second World War, the idea of human rights became a universal political ideology and a central aspect of an ideology of constitutionalism." 2. Buergenthal a) Early Institutional Developments (1) The organs in place to protect human rights today are antecedents of the League of Nations, which is now the United Nations. b) The United Nations Charter. (1) Article 55 and 56 (page 13 supp) (a) Member states of UN pledging to take both joint and several action to fulfill human rights, including equal rights, self determination, higher standards of living, etc (b) Only substantive human right is the non-discrimination provision cant be made on race, sex, etc. (c) Generally taking a pledge to act together and through the UN and individually to advance universal human rights (2) Seen as the touchstone instrument. Art 1(3) "anti-discrimination" is the only right that is laid out in the text of the charter.

Karima Bennoune International Law and a Just World Order Spring 2011
(a) Founding purpose was to move forward these human rights The San Fransisco Conference adopted some intentionally vague Charter provisions on human rights, rather than a bill of rights. (4) The vagueness of these provisions, read together with the non-intervention clause found in Article 2(7) of the Charter, tended for years to hamper serious UN action in confronting human rights violations (a) caveat nothing contained in charter will allow UN to intervene with domestic jurisdiction of any state (5) Despite this vagueness, these provisions did have important consequences. (a) States could no longer claim that human rights violations were purely domestic in nature. (6) Centerpiece of the effort to define and codify human rights: Universal Declaration of Human Rights c) NOTE: International Humanitarian Rights: international law applicable during an armed conflict. Different than human rights which are applicable all the time. Global Norms and Institutions 1. Global Norm a) International law of human rights includes numerous international agreements and other instruments, as well as a recognized corpus of customary law. 2. Charter of the United Nations a) U.N. Charter Article 2(7) has limited the effect of the UN Charter in promoting human rights. It states: "Nothing in the present Charter shall authorize the United Nations to intervene in matter of which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII." 3. The question becomes what exactly is inside the domestic jurisdiction of UN Member states? 4. Universal Declaration of Human Rights p. 356 of Supp a) In 1948, the UN General Assembly adopted the Declaration. (1) The Declaration is not a treaty, was not adopted as a treaty, and was never submitted by states to their respective ratification processes. (2) However, the adoption was unanimous. (3) There are no reservations or questions (4) See soft law/declarations (5) The Two International Covenants b) After the Declaration, consensus emerged to convert its norms into an international human rights covenant that would have the binding force of law. Originally there was only one covenant, including political and civil rights, but economic and social rights were added early in the process. Western States fought for the division into two covenants and won. (1) International Covenant on Civil and Political Rights p. 365 Supp c) The ICCPR is drafted in terms of the individual's rights. The rights recognized in the Covenant generally follow the first 21 articles of the Universal Declaration but with greater detail and in some instances qualification. Examples of rights protected: (1) Self determination Art1(1) (2) Freedom to natural wealth and resources Art1(2) (3) No discrimination Art2(1)..etc. (4) International Covenant on Economic, Social, and Cultural Rights p. 360 Supp d) The ICESCR speaks to the obligation of states. Examples of states obligations: (1) Right to work (2) Just and favorable working conditions (3) Trade unions (4) Food clothing and housing..etc. (5) Comparison of the Covenants With the Universal Declaration e) While the Covenants were supposed to turn the Declaration into binding law, there were some significant differences between them. This reflects the changing composition of the international society. Either way, the Covenants serve as major reference points for intl law and courts. 5. Other Instruments a) CEDAW- Discrimination Against Women b) CERD- All forms of Discrimination c) Slavery d) Apartheid e) Rights of the Child (3)

I.

Karima Bennoune International Law and a Just World Order Spring 2011
Do Global Human Rights Treaties Really make a difference? a) May make the situation worse by shielding states who are doing bad things, perhaps by defusing or confusing international criticism. Hathaway b) Bennoune doesn't agree with this but Hathaway "got a job at Yale for this idea" c) Do not translate immediately into differences d) Examples in which they can contribute over time (1) Tunin Case UN Human Rights Committee said particular state, Tazmania, its sodomy laws were a violation of human rights and it was first case that issues of sexual orientation were covered by the covenant e) Increasing use in domestic constitutions south African context f) Use in legislation incorporate language and obligations g) Court cases h) Important tool for human rights constituencies i) Challenges in the area of enforcement and implementation Global Institutions 1. Bergenthal, The Evolving International Human Rights System a) UN Human Rights Law and Practice (1) UN human rights law has evolved along two paths: (a) UN Charter (b) Treaties adopted by organization. b) The Charter-Based System. (1) The UN Human Rights Council (successor of Human Rights Commission) is at the center of the Charter-based system. Although the Commission took the position that it lacked power to act on violations, that attitude slowly changed. (2) Guiding Principle guided by universality, impartiality, objectively, and non-selectivity (a) Non-selectivity idea is there should be scrutiny of human rights records of all countries (not just your political opponents), on other hand there is a debate if it is appropriate to be selective focus on places where the violations may be their worse (b) Universal Periodic Review (3) Today the system consists of a "mushrooming rapporteur" and special-mission components, as well as the Office of the United Nations High Commissioner for Human Rights with its own bureaucracy. These institutions derive their legitimacy from the Charter and The Universal Declaration of Human Rights. c) The Treaty-Based System. (1) Began with the adoption of the Convention on the Prevention and Punishment of the Crime on Genocide (One day before the Universal Declaration.) Since then there have been many treaties adopted. (2) Each treaty provides a "treaty body," which consists of a committee of independent experts monitoring compliance. (3) Since some of these treaties have been widely ratified, they may be considered to be creating customary international law. (4) Treaty bodies receive reports about compliance, sometimes hear individual complaints who say they are victims of violations of those treaties but only if they enable that procedure in the country where the violation has taken place, Review individual complaints, Issuing general comments, Complementary to charter based system d) The General Assembly and the Security Council. (1) The General Assembly could only pass resolutions which were non-binding. (2) The Security Council, while it had power to enforce, could rarely agree on actions to take. e) It must be recognized that the UN and its various human rights institutions are largely ineffectual in dealing with individual human rights violations. Here, the regional human rights systems are more effectual. Unfortunately, these regional systems have only been set up in three areas of the world where they are needed in all. 2. Universal Declaration of Human Rights a) Specific effort to define human rights and to figure out which rights are going to be guaranteed through the UN after the second World War b) Right to health and range of other things and also the status of this it is not a treaty, simply a general assembly resolution c) Quite beautiful document of indeterminative legal value as its touchstone instrument d) Roosevelt this is not a legal document and should not be seen as binding (she is trying to convince south in US not total end of segregation instantly)
6.

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Karima Bennoune International Law and a Just World Order Spring 2011
Bifurcation a) International Covenant on Civil and Political Rights (1) States have to respect and insure the rights and do so immediately and do not only have to guarantee the right to vote (2) Created UN and Human Rights Committee which oversees this b) International Covenant on Economic, Social, and Cultural Rights (1) Obligations on states to progressively achieve this over time subject to their resource constraints (2) Very different kind of obligation here (3) No monitoring body but UN later realized that was a terrible oversight and later made one for state party compliance but that was a later innovation Human Rights of Women 1. Problems and Prospects: A Closer Look at the Emergence of Human Rights for Women a) The ideology of international human rights does not distinguish between men and women and in fact equality and non-discrimination are cardinal tenets of it. However, societies and their laws continue to distinguish between men and women. Because of this, feminist approaches have emerged to explain how important aspects of intl law disfavor women 2. Term of Art a) Meant to suggest that womens rights are also guaranteed by international law and included in the rubric and in un charter and in treaties and customary international law 3. The Human Rights of Women p. 988 a) Despite the legal guarantees of the Universal Declaration, UN Charter, and the two Covenants to gender equality, women have long experienced gross inequalities in the enjoyment of fundamental rights. (1) In some societies, inequalities are enshrined in law while others are reflected in social, cultural, and political resistance to equality. (2) Resistance to protection of women's human rights is enshrined in the weak powers and procedures of CEDAW b) Although the advancement of womens rights is trying to ensure equality of men and women, the advancement and full development of women is a "goal to be pursued in its own right." c) Some noteworthy aspects of CEDAW: (1) Discrimination against women is defined in terms of distinctions, exclusions, or restrictions that have the effect or purpose of impairing the enjoyment of rights on a basis of equality. (2) The Convention authorizes state parties to undertake "temporary special measures" -affirmative action. (3) A requirement to undertake affirmative steps to modify cultural patterns that impair the enjoyment of rights on a basis of equality. (4) Finally, the Women's Convention, perhaps more than any other convention, embodies a vision of human rights in which the enjoyment civil, political, economic, social, and cultural rights are indivisible. 4. CEDAW, General Recommendation No. 19, Violence Against Women p. 991 a) Applies to violence perpetrated by public authorities b) NOT RESTRICTED to action on behalf of governments. States may even be responsible for private acts for failing to act with due diligence to prevent. c) Traditional attitudes which perpetuate widespread violence against women (family violence, forced marriage, dowry deaths, acid attacks, female circumcision) deprives them of equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. 5. Challenge of cultural relativism a) Significant problem in the area of womens human rights practice of justifying denial rights in terms of cultural difference in what is claimed to be religion or tradition b) Given some credence sometimes in the area of womens rights but are rejected as international human rights law 6. Rape under international law 1990s a) One way in which issue became high profile had to do with the publicity around mass rapes in former Yugoslavia b) Creative approaches treating rape as a form of torture and using norms of torture c) Using international war crimes norms d) Rape as a crime against humanity another international criminal right offense or a form of genocide when carried out as part of plan to wipe out human groups U.S. Adherence to Global Human Rights Treaties p. 995 1. US Position
3.

K.

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Karima Bennoune International Law and a Just World Order Spring 2011
US position is often we take human rights violating seriously and not going to ratify a convention unless we can act in compliance with them and often CEDAW require changes that simply cannot be made for constitutional reasons b) The US was a major player in the promulgation of the Universal Declaration of Human Rights. However the US is only a party to one of the two Covenants and a few other human rights Conventions. The treaties the US is a party to, is subject to many reservations. 2. Henkin, The Age of Rights p. 995 a) Human Rights law is very good but is law for other countries and we have sufficient guarantees under the US Constitution of those same rights, and even when we do ratify we ratify that it should apply to others but not the standard that can improve the US b) The intl human rights movement in the US was designed to improve human rights in countries other than the United States. The reasons for this are not obvious: c) At one time, lawyers in the US questioned the constitutional authority of treaty makers to adhere to such agreements d) Fears of conflicting with the constitutional practices of reserving powers to states, delegating powers exclusively to Congress, not proper for treaties because it was of purely "domestic concern". These arguments have all been refuted. e) Fears of having to change our practices (such as segregation, which is over now) f) However, resistance is still strong. May have to do with the departure from representative government. Customary International Law of Human Rights p. 996 1. Cant use the treaty in question sometimes if you are not a party 2. Widespread violation of some norms and raise question of whether we meet the practice element and some scholars suggest in human rights area to focus on general principles 3. Restatement of the Law (Third) The Foreign Relations Law of the United States 702 a) Customary International Law. A state violates international law if, as a matter of policy, it practices, encourages, or condones: (1) Genocide (2) Slavery or slave trade (3) Murder or causing of disappearance of individuals (4) Torture (5) Prolonged arbitrary detention (6) Systematic racial discrimination (7) A consistent pattern of gross violations of internationally recognized human rights. (8) Notes on these topics found on pp. 997-98. 4. Relative normativety a) 1998 human rights norms that rise to level of jus cogens highest level norms in I Law and cannot exempt themselves Deviating from the Norms 1. Limitations Within the Norms Themselves 2. Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights a) In even the most enlightened and libertarian countries, the rights in the ICCPR are not absolute. (1) Example: Freedom of expression doesnt allow you to yell "fire" in a crowded theater. b) The framers of the Covenant sought to define the permissible scope of limitations as strictly as possible, although inevitable in general phrases. (1) Example: Freedom of movement within a country or the right to leave it "shall not be subject to any restrictions except those which are provided by law, necessary to protect naitonal security, pulic order, public health or morals, or the rights and freedoms of others" c) Of course, whether a particular limitation on a right is permissible under the Covenant depends on international law. 3. Reservations a) statements made by states when become parties by modifying the treaty when they sign on b) Problems (1) Cannot conflict with object and purpose of the treaty (2) States may not see an interest in rejecting reservations of other states c) The Senate advise and consent to the ratification of the ICCPR subject to the following Reservations, Understandings and Declarations: d) (Paraphrasing- for full text go to pg. 1015) e) Right of free speech and association protected under the Constitution f) Right to impose capital punishment on any person
a)

M.

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Karima Bennoune International Law and a Just World Order Spring 2011
Bound by Article 7 to the extent that "cruel, unusual, or degrading treatment" prohibited by 5th, 8th, or 14th. h) Reserves the rights to try juveniles as adults. i) Reservations of US when ratified covenant in 1992 determined by US Senate (1) US is trying to keep constitution as the relevant standard (2) Problem with plain of US law v. International law may violate international human rights law but be on par with the constitution (3) Sweeping deems all substantive article to be non-self executing in the US (a) Senate deems it this but then Bush Sr. did not pursue to implement legislation effectively this becomes a problem (4) Some of these make perfect sense (5) Reservations with regard to Article 20 with free speech there is no way US could be in compliance with this because it is very European approach (6) Critical language senate says nothing requires legislation or action by US prohibited by constitution of US as interpreted by the US j) Strong response from human rights committee with a general comment (see below) (1) Strong statement on reservations generally (2) Cannot make them to preemptory norms and some procedural guarantees that allow us to ensure compliance with the substantive norms in the covenant (3) Ratifying the covenant means you may have to change your domestic law (a) Real problem no real international rights or obligations have thus been accepted (4) Not only has US declared it non-self executing but also it has not ratified the 1st optional protocol (5) Human rights committee taking radical step that someone needs to rule on this ensure compliance with covenant so we must make a statement when reservations are acceptable because the treaty says nothing on this not all states accepted this Understandings: a) Permits accused person to be imprisoned with convicted persons in light of dangerousness b) Understanding on defendants council and double jeopardy. Declarations: a) Treaty is non-selfexecuting b) Will continue to follow our Constitution c) Accepts competence of Human Rights Committee d) Nothing in the Covenant requires or authorizes legislation, or other action, by the US prohibited by the Constitution as interpreted by the United States. United Nations Human Rights Committee, General Comment 24 a) Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. The casebook lists peremptory norms at 1017. b) Reservations designed to remove guarantees that provide framework for securing the rights in the Covenant and are thus essential to its object and purpose. c) Domestic laws may need to be changed. d) Widely formulated reservations may essentially render ineffective the Covenants United States, Observations on General Comment No. 24 a) Role of the Committee (1) US interprets the last sentence of Para. 11 in General Comment 24 to mean that it is contrary to the object and purpose of the Covenant not to accept the Committees views on interpretation. The drafters of the Covenant could have given the Committee this role, but chose not to. b) Domestic Implementation (1) US states that "deciding on the most appropriate means of domestic implementation of treaty obligations is left to the internal law and processes of each state." Derogations in Emergencies a) Suspension of human rights according to law in time of emergency b) Allows states to derogate many treaties etc. c) Article 4 of Covenant d) Non-derogable right that cannot be suspended e) Even derogations of derogable rights are subject to some limitations (1) Publicly notify (2) Strictly required by situation must be proportionality between measures and emergency (3) Cannot be discriminatory
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Karima Bennoune International Law and a Just World Order Spring 2011
f)

Meant to be limited remedies that states take in most extergent circumstances and when it stops you cease the derogation Lawless Case p. 1022 (European Court of Human Rights) (1) Rule: In cases of emergency, a State may sometimes and temporarily derogate from an international human right norm in order to fix the problem. (2) Background: Ireland arrested 130 known Irish Republican Army(IRA) activists, including Gary Lawless, and placed them in an internment camp. Lawless filed the case claiming a violation of his human rights (including a right to a fair trial). (3) Holding: (a) A contracting party may derogate from the Convention in time of war or national emergency so long as that party keeps the Secretary General informed and provided that such measures taken (violative of the covenant) are strictly limited to what is required by the exigencies of the situation and also that they do not conflict with other obligations under international law. (b) There was an emergency that "threatened the life of the nation." By this, the court is referring to a situation or crisis when affects the whole population and constitutes a threat to the organized life of the community. Factors of that are: (c) The existence of a secret army engaged in unconstitutional activities and using violence to attain its purposes (d) This army was also operating outside the borders of the state thus seriously jeopardizing Irelands relations with its neighbors (e) Steady and alarming increase in terrorist activities. (f) As to whether the measures were "strictly required": (i) The application of "ordinary law" had proved unable to check the growing danger of the situation.
(4)

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Compliance 1. Mechanisms for promoting compliance: Creativity and diversity for promoting compliance a) Reporting Procedures under Treaties (1) Henkin, International Law: Politics and Values (a) State reporting is the least intrusive enforcement machinery, reflecting the international system's strong commitment to values of state autonomy and impermeability. The Human Rights Committees reviews, makes general comments and sends them to ECOSOC. (b) Guidelines for Reporting. First part should describe the general legal framework within which civil and political rights in the state are protected. Second part should deal with the legislative, administrative, and other measures in force to protect each of the rights protected under the relevant convention, and information about limitation or restrictions on their exercise. b) Interstate Complaints procedures (traditional compliance mechanisms) (1) Tend to be dormant often not used in this area because states do not see a reciprocal interest in pursuing these avenues (2) Bosnia Case possibility of interstate suit in ICJ suggests a precedent may be followed in future (3) ICCPR, Article 41(1) (a) The Article allows the Committee to "receive and consider" information about another state who is violating the ICCPR. The Committee will only hear complaints about States who have also recognized the "competence of the Committee" as well. c) Individual complaints procedures (1) Radical departure from classical international law whereby an individual can bring a complaint against a state under international law individual having a kind of standing (2) Procedures require added acceptance by the state (a) Example: Covenant on Civil and Political Rights created Human Rights Committee: State have to of ratify Covenant and First Optional Protocol for individuals to make these complaints; Convention Against Torture as well (b) US is a party but has no allowed individual complaints procedure (3) Human Rights Treaty bodies act in most quasi-judicial functions classical work of a judicial body adjudicating individual claims however, they are not able to enforce their decisions but a view issued by one of these bodies has in fact had an impact on the law or the case of that particular person

Karima Bennoune International Law and a Just World Order Spring 2011
Individual suit in European system under European convention on human rights through European Court most innovative because judgments are actually called judgments and indeed binding (5) Henkin, International Law: Politics and Values p. 1041 (a) It was anticipated that States would be reluctant to submit to complaints that they were violating their obligations under ICCPR. That is why CERD (Discrimination) provided for inter-state complaints but made submission to private complaint optional. (b) Many States remain reluctant to submit to individual complaints because they resist penetration of the state veil. (c) There is slow progress toward accepting this kind of complaint. Economic Sanctions can be very effective (1) States can impose sanctions upon other states for failure to abide by their obligations under international human rights laws. (a) Example: US law requires cutting off economic and military sales to "any country which engages in a consistent pattern of gross violations of internationally recognized human rights" (2) Limitation: sanction that really only works against the weak (3) Effective when used against apartheid SA because great deal of agreement in international community about these sanctions (4) Criticism in recent years given alleged humanitarian impact in Iraq (5) Softer option (also related to use of force below) (6) Try to develop targeted sanctions (ie do not let people of the targeted regime or family members travel) International Criminal Sanctions (1) Holding individuals accountable for international crimes (war crimes, crimes against humanity, etc) (2) Does not focus on accountability of the state but rather the individual (3) Criticism focus away from state responsibility and scapegoating individuals (do not always get heads of state) (4) Ordinarily, human rights obligations go to the States who are parties to a treaty. Occasionally though, obligations are imposed directly on individuals, making them liable for criminal punishment. This was first recognized after Nuremberg and Tokyo. Military Action (1) Can be effective in ending human rights abuses but can occasion new human rights violations (2) Discussion since Rwanda genocide about a responsibility to protect idea that if a state is unable or unwilling to protect its population from widespread abuses than the sovereignty of state is less important than international responsibility to protect human rights somewhat controversial because relativising sovereignty (a) Ultimately decision remains a decision for UN Security Council (3) United Nations General Assembly, 2005 World Summit Outcome (a) Each state has a responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The international community should help individual states meet this obligation. (b) The international community also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means. The General Assembly is prepared to take collective action, through the Security Council, on a case-by-case basis should peaceful means be inadequate National enforcement (1) All the other ones are backups when national enforcement fails (The machinery established is designed, above all, to secure compliance through the effective operation of national law and procedures.) (2) Whether it is in domestic law or courts or by executive action (3) Creative efforts in US (a) Human Rights Treaties (i) Whether US obligations under treaty obligations can be enforced in US Courts may depend on whether the treaties are viewed as self-executing or non-self-executing. (See Municipal Law) (b) Customary International law
(4)

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Karima Bennoune International Law and a Just World Order Spring 2011
Human rights norms ARE law in the US and can be enforced in the appropriate proceedings (c) Implementation through the civil jurisdiction of US using Alien Tort Statute (ATCA) allows alien to sue for a tort in US courts, it can sue a non-national, regard to action taken over seas (i) Filartiga Case touchstone case where survivors of young Paraguan man who was tortured to death due to his father opposition to the government sued s3ome officials involved in US Court and won a substantial judgment (ii) US Courts have civil jurisdiction to provide a remedy for aliens for torts in violation of either treaties of the law of nations, including human rights violations. (iii) Statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations of a treaty of the United States." (d) Implementation through Criminal Jurisdiction (i) A wide variety of US federal and state criminal statutes allow for punishment of conduct that occurs in the US that, if unaddressed, could constitute a human rights violation. Some statutes even punish conduct that occurs outside of the US. (ii) Example: Genocide Accountability Act permits prosecution of persons for committing genocide if the alleged offender (a) Is an alien who was lawfully admitted for personal residence in the US (b) Is a stateless person whose habitual residence is the US, or (c) after the offending conduct transpires, the alleged offender is brought into or found in the US. (e) Gaining steam in cases against corporations controversial but possible (f) Torture Victim Protection Act victim of torture in US can sue for torture abroad however does not solve problem of people who are victims in the US (less developed area) (i) This Statute provides a remedy in damages for victims of torture (whether the victim is an alien or a US national.) Aliens will also use both Tort statutes if possible. (ii) statute provides that under TVPA an "individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death." Real Challenge remains in enforcement making mechanisms have teeth and enhance their enforcement capacity, as well as maintaining some normative gains that have been set in the human rights area
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XI. The Use of Force A. 2 branches 1. Jus ad bellum a) Law on going to war recourse to force b) Only looks at justification of questions under law of having recourse to force in the first placed 2. Jus in bello a) Consists of rules govern how conflicts are conducted b) How force is used not the legality of the recourse to force B. Jus ad Bellum (the law of going to war) 1. Classical a) Did not seek to regulate the use of force b) Seen as an issue of sovereignty war was simply in law a natural function of the state and a prerogative of uncontrolled sovereignty 2. Changes: WWII a) 2 world wars were catalysts b) created initially out of ashes of second World War and greatly disfavors resort to force c) Such a sense that this was something that could not be repeated d) UN Charter save succeeding generations from war e) Article 1

Karima Bennoune International Law and a Just World Order Spring 2011
Explains that principle purpose of UN is to maintain international peace and security and take effective measures for prevention and removal of threats to the peace and for the suppression of aggression (2) Real focus on preventing conflict f) Article 2(3) (1) Resolve disputes peacefully g) Article 2(4): go to article on use of force (supplement page 2) (1) Provides that all members shall refrain from the threat or use of force against territorial integrity and political independence of any state or in any other manner inconsistent with the purposes of the UN (2) Broad ban on recourse to force and yet it is clear it could read very differently (a) Does this mean there are certain situations that force is permissible? Ie when consistent with purposes of the UN (3) Has been called by Professor Grey the starting point for any examination in the law of this area (4) Content is a norm of customary international law (Nicaragua Case) (a) Can be applied separately from treaties (b) ICJ even deemed it to rise to a level of jus cogens (c) Rule that is taken very seriously (5) it is no Kellog-Briand Pact which attempted to outlaw ALL WAR (a) UN Charter does not go all the way as this pact does (6) Most people understand it as a very broad rule (Schacter) (a) As long as act of force involves a nonconsensual use of a states territory or compels a state to take a decision it would not otherwise take then Article 2(4) has been violated (b) All additional words at end of sentence does not greatly limit the ban (c) Exceptions are seen as very narrow (i) Unwillingness to see increasingly number of limits (ii) 2 exceptions: (a) self defense under Article 51 of UN Charter which is also found in customary international law (b) Collective Force: authorized by UN Security Council as a means of implementing resolutions adopted under Chapter 7 of UN Charter (iii) Only 2 situations a use of force does not violate Article 2(4) Customary International Law on Force Prior to 20th century a) Non-regulation of the resort to war (1) International law writers postulated a dichotomy between war and peace and distinguished laws for nations at peace from laws for nations at war (2) Belligerent states at war had the duty to observe the rules of war and to respect the neutrality of non-belligerent states (3) To determine whether the rules of war (or neutrality) applied, it was necessary to determine whether a state of war existed between the states (a) State practice during the 19th century suggest that a state of war resulted when one party declared war or intended a state of war to exist (state could refrain to avoid the necessity of complying with the laws of war) (b) Writers argued for an objective test, notably evidence of large-scale fighting b) Oppenheim (1) In the absence of an international organ for enforcing law, war was a means of self-help for giving effect to claims based or alleged to based on international law (2) Distinction between just and unjust wars c) For hundred of years international law did not prohibit resort to war d) Neutrality legal status accorded to certain non-belligerents (1) A state had to assume an attitude of impartiality toward the belligerents (2) Policies had to applies equally to all parties (3) Neutral was guaranteed the inviolability of its territory and freedom from belligerent acts Pre-United Nations efforts to Discourage or Outlaw War a) Covenant of the League of Nations
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Karima Bennoune International Law and a Just World Order Spring 2011
Should any member of the league resort to war in disregard of its covenants under Articles 12, 13, or 15 it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial, or personal intercourse between the nationals of the covenant breaking State and the nationals of any other State b) General Treaty for the Renunciation of War (Kellog-Briand Pact) (1) Condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another (2) Pacific means to settle disputes c) Failure of the Covenant (1) Italy and Abyssinia (a) Italy invaded Abyssina (b) Italian government had resorted to war in violation of the Covenant and imposed initial embargo sanctions (c) The subsequent refusal of the League to take further measures when the initial sanctions proved inadequate exposed its impotence (2) The failure of the League to prevent the obvious aggression of Italy and to deal effectively with the aggressor undermined the credibility of a regime of international law under which war was to be abolished as an instrument of national policy d) Criminalizing Aggression: The Nuremberg Charter and Trials (1) International Criminal Court is supposed to be able to prosecute crime of aggression once states agree to a definition of aggression (2) What is a crime against peace? (a) Article 6: Waging a war that is in violation if international law including in violation of treaties, agreements, assurances, etc. (3) Crime against peace and other international crimes? (a) Creating the conflict which then gives rise to all the other war crimes and crime against humanity (b) Supreme International Crime taken very seriously here (c) Crimes against peace are the source of all the other crimes against humanity focus on illegal decisions to go to war and make war in the first place (4) International Military Tribunal was established at the end of WWII for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities (5) The charter and subsequent judgment never adopted a definition of aggressive war (a) Tribunal accepted the argument that the acts perpetrated by Germany speak for themselves, and that under any seriously profound definition of aggression the German leaders were guilty (6) Concept of aggressive war was influenced by the notion of a criminal conspiracy expansionist policy through deliberate criminal acts (7) Nations who signed the Kello-Briand Pact condemned recourse to war as an instrument of policy after the signing any nation resorting to war as an instrument of national policy breaks the Pact (a) War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression (8) Tribunal rejected Germanys plea of self-defense and by doing this adopted the test in the Caroline Case (9) A key Nuremberg principle as endorsed by the UN General Assembly in 1946, is individual responsibility for the kinds of violations of international law at stake in the Nuremberg Trials Under the UN Charter a) Generally (1) Article 2(3): settle disputes by peaceful means (2) Article 2(4): member states undertake to refrain from the threat or use of force, broader concepts than aggression (3) Article 51: nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs (4) Security Council: principal task is to ensure international peace and security (a) Chapter V through VII authority for members
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Karima Bennoune International Law and a Just World Order Spring 2011
Article 24 and Article 25: member states delegate to the security council primary responsibility for the maintenance of international peace and security and agree to accept and carry out the decisions of the Security Council (b) Chapter VII authority to determine the existence of any threat to the peace, breach of peace or act of aggression, and to make recommendations or decide what measures shall be taken to maintain or restore international peace or security (5) General Assembly: all UN members, may discuss and make recommendation on any matters within the scope of Article 10, but it may make recommendations on disputes or situations with regard to which the SC is exercising its powers only upon the Security Councils request (Article 12(1)) (6) Regional Arrangements (a) Article 52 authorizes regional arrangements and agencies for dealing with matters relating to the maintenance of international peace and security SC may utilize these for enforcement measures Henkin How Nations Behave (1) Charters prohibition on unilateral force was to apply universally: members were bou nd by it, they were to see to it that nonmembers also complied (2) Political norm no external force to change political status quo (a) Realists: question whether it is viable or desirable, could have only worked if US and Soviet Union had been prepared to cooperate to enforce peace (3) He says that the changing facts and faces of international law have not detracted from the validity of the law of the Charter and have only reinforced its desirability (a) All evidence is persuasive that they sought to outlaw war, whether or not the UN organization succeeded in enforcing the law or in establishing peace and justice During the Cold War (1) Henkin argues that the other changed circumstances the failure of Allied cooperation that gave way to the ideological confrontation of the Cold War, the development and proliferation of terrible weapons of mass destruction, and the transformation of the political system by the emergence of new nations and the 3rd World did not render Article 2(4) less valid or desirable (2) Exceptions (a) Permit the use of force for humanitarian purposes or to defense of promote democracy Charter after the Cold War (1) The end of the war led to different patterns of conflict and new types of external intervention (2) Yugoslavia, September 11 attacks some questioned whether the UN charter system had been rendered irrelevant or would require major change, in light of the kinds of threats from non-state actors that the attacks exemplified Article 2(4): All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN (1) Schacter (a) Principle is intended to outlaw war in its classic sense the use of military force to acquire territory or other benefits from another states (b) Word war not used instead force was chosen as a more factual and wider word to embrace military action (c) Force has its own ambiguities it is sometimes used ina wide sense to embrace all types of coercion: economic, political, and psychological (d) Even limited to armed force raises some interpretation (i) Indirect force? (ii) Interference dictatorial interference by a State in the affairs of another state (e) Problem of interpretation has arisen in regard to justification for the use of force
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Karima Bennoune International Law and a Just World Order Spring 2011
Solely to vindicate or secure a legal right or when a State considers its rights have been violated it has been claimed that a state is allowed to use force to secure its lawful passage through waters of an international strait or to compel compliance with an arbitral or judicial award argument that force for a benign end, specifically territorial integrity or political independence of target state does not fall within the qualifying language of Article 2(4) (if accepted it would cut down the scope of the article significantly) (ii) one answer is that the Charter itself requires that disputes be settle by peaceful means and the only exceptions would be self defense under Article 51 and military enforcement measures under Chapter VII (iii) second answer is that any coercive incursion of armed troops into a foreign State without its consent impairs that States territorial integrity, and any used of force to coerce a State to adopt a particular policy or action must be considered as an impairment of that States political independence as long as the act of force involves a non-consensual use of a States territory or compels a State to take a decision it would not otherwise take, Article 2(4) has been violated (2) No mention of war or aggression (a) framers avoided them because these terms lend themselves to circumvention (b) there can be hostilities without a declared war (c) aggression had long resisted definition and could be falsified and might not always be easy to determine (d) also sought to outlaw even war as a duel by mutual consent when neither side is the aggressor (3) Jus Cogens? (a) It is commonly accepted that in substance Article 2(4) has become a principle of customary law binding on all states, and has acquired the character of jus cogens (4) Belligerency and Neutrality (a) Was designed to abolish the traditional state of war in which states were expected to be neutral as to the conduct of the aggressor (b) Unfortunately, the charter did not put an end to large scale hostilities, nor trigger in all instances an authoritative determination as to which state was the aggressor (c) Issues about rights and duties of both the participants in hostilities and of nonparticipants have continued to arise Threat of Force (1) According to Schacter and ICJ when is threat of force illegal? (a) Rule: If the threat is to use unlawful force then the threat is also unlawful (b) A threat to sue force in legitimate self defense is not unlawful (c) A threat to use force to force a political change or take another states ter ritory away is unlawful (2) Clearly a threat to use military action to coerce a State to make concessions is forbidden (3) Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (a) Signaled intention is not a threat (b) It would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths (c) The notions of threat and use of force under Article 2(4) stand together in the sense that if the use of force itself in a given case is illegal the threat to use such force will likewise be illegal (d) The use must be lawful and if not the threat is unlawful (4) Guyana and Suriname Dispute (a) Threat was more a threat of military action rather than a mere law enforcement activity (b) Surinames action ntherefore constituted a threat of the use of force in contravention of the Convention, the UN Charter, and general international law Threat or Use of Limited Force (1) The Cuban Missile Crisis, 1962
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Karima Bennoune International Law and a Just World Order Spring 2011
JFK: force shall not be used except in case of failure or refusal to comply with directions, or with regulations or directives of the Secretary of Defense, issued hereunder, after reasonable efforts have been made to communicate them to the vessel or craft, or in case of self-defense force shall be used only to the extent necessary (b) Was the US action to impose a quarantine of Cuba a threat or use of force? (c) Self-defense under Article 51? Or justified under the Organization of American States, as officially argued by the US? h) Consent to Military Intervention i) Realistic Approach to regulation by UN Charter that allows for exceptions or more categorical language of Kellog-Briand Pact (renounces war and uses word NEVER) (1) Advantages to UN (a) a comprehension to reality states are going to want to use force when they are attacked (last thing is we do not want them to do it outside the law and by using self-defense it is inside the law) (b) Charter rules apply procedural rules to the reality reporting requirement (similar to it under derogations) and make a legal justification of its action (2) Advantages to Kellog-Briand (a) Need for a more aspiration norm and suggests what the reality ought to be (b) UN Charter rules are appropriate rules but how do we interpret them and if we are going to go with quote on quote realistic norms we need a narrow interpretation and not keep trying to expand them realistic approach can act as a constraint on states (c) More expansive notions of self-defense and there can be a problem that the norms are too open ended The Self-Defense Exception: Article 51 and Customary International Law a) Article 51 (limitations) (1) Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (2) Idea that right of self defense is inherit (predate Charter and grounded into customary international law) (3) Can be exercised individually or collectively (4) If an armed attack occurs only after an armed attack? (5) Remember it is an exception and must be construed narrowly (6) Problem: lots of times both countries will claim self-defense b) Armed attack (1) self defense against an actual armed attack is distinguished from self-defense against an attack this is imminent but has not yet commenced, as well as from measures to prevent more remote threats of future attacks and from self-defense against non-state actors (2) Has been interpreted by some to encompass the right to use force if an attack is imminent (a) not many accept this (3) Classical Understanding: armed attack must occur (4) Speculative threat threat which may develop in the future not much support for this c) Time Limited (1) Understood to apply beginning with armed attack or when it is imminent and only lasts until Security Council takes necessary action d) Further limits (1) What is temporal limitation at the end? until SC has taken measures necessary does that put an end to the right of self-defense? (2) Remains subject to customary international law requirements that the force is necessary and proportionate (3) Has to be reported to the Security Council d e) The Caroline classic statement
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Karima Bennoune International Law and a Just World Order Spring 2011
During an insurrection in Canada in 1837, the insurgents secured recruits and supplies from the American side of the border. Camp of 1000 men in Buffalo and in Black Rock. Te Caroline was a small steamer employed by these encampments. While moored at Schlosser, on the American side, the steamer was boarded by an armed body of men from the Candian side, who attacked occupants, some being American. Lord Palmerston avowed responsibility for the destruction of the Caroline as a public act of force in self-defense by persons in the British Service. (2) Alexander McLeod who allegedly particiaptedi n this was tried in NY and acquitted. (3) The two governments agreed in principle that the requirements of self-defense might necessitate the use of force (4) Deniel Webster, US Secretary of State denied that the necessity existed in this particular case (a) Caroline Standard: Exceptions growing out of self-defense do exist, but these exceptions should be confined to cases in which the necessity of that self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation (b) Not a mater of choice simply have to take (5) Proportionality: Must show that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the US at all, did nothing unreasonable or excessive Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) ICJ, 1986 (1) Specifically focus on what case has to say about substantive law on the use of force (2) Remember US had reservation so ICJ could not look at this under the UN Charter, but ICJ said customary rules were basically the same but a separate existence (content in UN Charter under Article 4(2) is the same) (3) Question: Whether or not justified ot one of exceptions of ban on use of force (specifically collective self-defense) (4) US argues collective self-defense justifies its actions (5) Holding: ICJ says not examples of collective-self defense in accordance with Charter or Customary International Law (a) US has not reported this use of what it claims to be self-defense to the SC ICJ concedes customary international law of self-defense does not require reporting aspect (Article 51 of UN Charter requires it) however still thinks this is factually dispositive of whether or not US believed itself to be acting in collective self defense because US has used this issue against other states (b) Views of Hondurs/El Salvador/Costa Rica US claims to be acting on collective self defense for them Countries affected here have not taken the position that they were facing armed attacks and wanted international action taken (c) State at risk needs to understand itself to be the victim of an armed attack and understand that at the relative time and need to ask for help and needs to follow regular rules of self defense (needs to make report to SC and act in accordance with necessity and proportionality) (d) Necessary and Proportional (even if found US to have taken collective force) timing problems and problems with the scale of US response that it is not commensurate with scale of the aid coming from Nicaragua (6) Rules (a) Article 2(4) is a jus cogens principle (b) Court takes the rules that apply to self-defense very seriously (c) It is going to apply the rules stringently and apply those rules to claims to be acting in collective self-defense (7) Schwebel Dissent: Based largely on his conclusion that Nicaraguas support of the insurgency in El Salvador was so extensive and persistent as to amount to an armed attack justifying collective self-defense by the US, and that this warranted military activities not only in El Salvador but against Nicaraguan territory as well (a) Nicaraguas actions were more extensive then the record of the court says (8) Oda dissent: US reservation denied the Court jurisdiction of any proceeding based on a multilateral treaty, and even if the treaty and customary law could be disentangled, the Court could not entertain the case and decide it on principles of customary law (a) Concerned about overlapping of customary international law and treaty norms (b) however he joined the majority in holding that the laying of mines by the US breached US obligations under bilateral treaty (9) Major victory that ICJ was able to rule against the US d
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Karima Bennoune International Law and a Just World Order Spring 2011
C. g) Anticipatory Self-Defense and Preemption Collective Use of Force 1. Security Council a) Quite different (first is for unilateral claims under self defense) b) International system acting here at authorization of security council c) Can only happen when authorizes enforcement under Chapter 7 of UN Charter (supplement pg. 1012) d) Chapter 7: threats to peace, breaches peace, acts of aggression (1) Not all security council resolutions are adopted under Chapter 7 (2) When resolutions are adopted in this area they have special potency (potential derogation from state sovereignty) (3) Even non-member states of UN are to be made to comply in this area (4) Framework for enforcing it initially UN charter after WWII was premised on creation of UN Flagged Armed Force under Article 43 (a) Moment of post-war optimism somewhat short-lived (b) Due to development of cold war this Article 43 was never created (5) Left with a system not originally contemplated by UN Charter (a) Decentralized enforcement e) Tom Frank (1) diagnosed major illness of UN Security system based on 2 fundamental mistaken assumptions (a) Make fast and objective decisions on taking of collective measures (b) States would implement Article 43 and empower it to act (2) What are the consequences of these 2 failures? (a) End up with coalitions of willing claimed to be acting on behalf of security council (b) Increasing needs seen by states to act outside the system (range of claims made by states that they have to act outside collective security system) (c) Attempts to expand notion of self-defense under Article 51 f) Left with a Chapter 7 that can only be enforced by states acting at the behest of the security council (note this is the fault of states by not fulfilling their responsibilities) (1) Where it has been granted it has been called on member states to use all means to enforce resolution in question (2) Ha SC actually authorized states? (a) Check to make sure resolution adopted under Chapter 7 (b) Check and make sure resolution has used language to use all necessary means g) German World Court Judge (1) Requires SC to consider non-military enforcement to have been inadequate (2) Idea is that SC should first try to deal with the situation peacefully and if that does not work it is only then it can authorize military enforcement (3) Subject to proportionality and necessary (4) Requires express authorization of SC and in absence of specific authorization the use of force by states to implement resolutions is unlawful in his view h) As a legal matter (1) Any force that is not used in self-defense or collectively authorized remains prohibited by Article 2(4) and constitutes a breach of the peace or act of aggression (nervous about using word aggression) 2. The United Nations a) General Assembly Uniting for Peace Resolution (1) If SC deadlocks on a peace of security (2) Particular struggle over this and argument over ambiguous precedent of Korean War and role of UN (3) Exceptional possibility to act although it tends to be unwilling to do that 3. Critique a) Those who challenge it as a whole but also from genuine multi-lateralists b) Law does not manage to respond to difficulties of todays world and focused on 1945 moment c) Does not take into consideration threat of Nuclear Weapons or Large Scale Terrorism d) UN Charter does not provide adequate guidance for what to do when collective enforcement fails 4. Schacter/Henkin a) Law has been very successful in preventing inter-state conflict since end of WWII b) Most of it since WWII has been internal wars which UN Charter has very little to say c) Rather than change we need to bolster it and make sure it is fully implemented

Karima Bennoune International Law and a Just World Order Spring 2011
Former UN Secretary General: Kofi-Anan a) how could we best make international rules flexible so as to enable effective enforcement action b) but at the same time ensuring respect for the rules and keeping stability in the system to avoid exploitation of flexibility by powerful state in particular 6. How is the system supposed to work a) Chapter 7 should be read in light of Chapter 6 of the Charter the things the security council can do to promote the peaceful resolution of disputes only in these situations the security council can take coercive action b) Chapter 7 sequence of things SC can do (1) Article 39: up to the SC to determine whether a situation comes under the rubric of Chapter 7 not a matter for individual states involved (2) Article 40: SC can order provisional measures states need to take to preserve interests at stake while SC is looking into a matter to avoid irreparable harm to the parties pending a resolution of the matter (3) Article 41: If SC determines it necessary given there has been a threat or breach of peace SC can decide measures to take short of the use of force (a) Sanctions (b) Partial interruption of economic relations (c) Interruption of air/postal/other means of communication and severance of diplomatic relations (4) If that does not workArticle 42: SC may actually authorize use of force (5) Remember these are all sequential (6) Article 43: UN Flag Force which has never happened 7. 28 conflicts in the World today a) 1990s: breakup of former Soviet Union and Yugoslavia conflicts in high 30s, low 40s Case Study: Afghanistan Report 1. Background a) In the early 1970s Afghanistan was a peaceful prosperous place and socially more progressive than it is now b) Series of unfortunate internal events (1) coups within coups and soviet union invaded in 1979 to protect a particular faction it supported and invasion was very brutal and in early 1980s Afghans began to organize themselves and US saw this in context of cold war and to counterbalance soviet union helped arm the troops (2) Not really seen as a country and was seen as a pawn for the cold war and was flooded with ammunitions and military training etc. (3) Groups in 1990s began to shred the country to try to gain control of Kabul (4) Taliban extreme group started in Pakistan by Afghan refugees who have been orphaned in the armed conflict and had very little conflict with women which is where there anti-women ideology came from (5) Initially Afghan thought Taliban could bring reform and clean up mess and fight corruption etc, and Taliban took capital city in 1996 and imposed the rule they said they were going to but in a very extreme way (a) women face corporal punishment if in streets uncovered and could not go out without a male relative and men had to grow a long enough beard and very little international attention between 1996 and 2001 aside from a few feminist groups but not much interest on part of governments (6) Many young Afghans loath the Taliban, it is not the way they want to live and an alien way of ruling Afghanistan 2. September 11th a) After the attacks in October the US and UK intervened militarily in Afghan and worked closely with Northern Alliance that managed to take Kabul and Taliban regime toppled very quickly and initially seemed to be support among Afghan population for overthrow of the Taliban but concern of civilian causalities b) Process instituted to create constitution for Afghan and have Afghans involved and Karzi became President of the country c) Not much attention from 2003 to 2007 and now find ourselves with policy challenge 3. Legality of Initial Intervention a) Tom Franck on legality of initial US/UK intervention (1) Article 51 of charter gives countries right to act in self-defense (2) Requirements for using force in self defense generally
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Karima Bennoune International Law and a Just World Order Spring 2011
Proportional, time is limited up until Security Council makes a decision on what to do, necessary (b) Can use force in self defense as an inherent right but subject to legal requirements (i) (1) has been an armed attack (or at least imminent) (ii) (2) necessary and proportional according to customary international law (iii) (3) has to report the action to the security council (iv) (4) justify its actions (v) (5) timeframe can start after an armed attack and debate how long can states use force in self defense (is it only until sc has doen anything ro taken steps to restore international peace and security) (3) S.C. did not take the steps needed to restore international peace and security (4) By a state actor (a) In contemporary period we have ot have a new understanding of armed attack and some non-state actors are very powerful even though not intent (b) If security council is taking all of these steps against Al Qaeda than it would be ridiculous that the attacked state cannot take steps against the same non-state actor too formalistic not to extend same possibility (5) Not going to S.C. first (a) Undermine UN system in his view and take away from inherent powers states would not be willing to accept that when they are attacked they have to wait and report to security council first he recognizes it is important but can be fulfilled after the fact Mary Ellen OConnell a) Her view is different than Franks b) She is concerned about the factual case in terms of the extent between links of Al Qaeda and the Taliban c) Concerned about proportionality could allow NA to overthrow the Taliban could used less force d) She is writing this in hindsight very different than the Frank article lumps Iraq war together at the end of her article e) Little debate among International lawyers about legality of the Afghan war huge debate in the Iraq War (1) At this point total different legal situation and there is an Afghan government General McChrystals Report a) Somewhat honest about what is working and what is not working b) Need a dramatic change in how we operate c) Sense of urgency, particularly critical moment that something must be done specifically to turn back initiative of insurgency on the security front d) Situation in the country is very serious but it is not terminal he is not necessarily pessimistic and important not to be fatalist couple of factors must be tackled, protecting insurgency and facing up to the challenge of corruption e) One of the things that has hurt the US and international forces in long run has been an emphasis on force protection minimizing our own military casualties makes US forces more of a target and counterintuitive to make this shift but our forces may be safer in the long run if we make this shift f) Quotes on page 15 Defense Minister who makes a distinction between Russian-Soviet invasion and current foreign presence in Afghan g) What is he ultimately recommending? (1) Expand the presence and stay or not clear? (2) Ultimately there is a military and political component of the use of force and political component dominants in certain ways (3) Viable option of Afghanization of this conflict if we take this approach Rachel Reid a) Afghan women hear little about this issue now b) Afghan Parliament is controlled by a generation of current and former warlords whose views are not so different from those of the Taliban Peter Bergen: Give it Time a) if foreign troops pull out then the Taliban can take Kabul very quickly b) Flaw assumptions underlie the misguided argument that the war in Afghanistan is unwinnable c) Having overthrown the ruling government in 2001, the US has an obligation to leave to Afghans a country that is somewhat stable d) A stabilized Afghanistan is necessary precondition for a peaceful South Asia, which is today the epicenter of global terrorism and the most likely setting of a nuclear war
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Karima Bennoune International Law and a Just World Order Spring 2011
Obamas Af-Pak plan has a real chance to achieve stable Afghanistan if it is given some time to work (2) Obamas plan in essence, is a counter sanctuary strategy that denies safe havens to the Taliban and al-Qaeda, with the overriding goal of making America and its allies safer under Obama, the Pentagon has already sent a surge of 21,000 troops to Afghanistan, and the Administration is even weighing the possibility of deploying as many as 40,000 more 8. Leslie Gelb: Turn it over a) Against the full blown counter insurgency b) Strong middle option: put ourselves and friendly Afghans in a position to manage future terrorist threats in that country without a major US combat role by arming, training, dividing the enemy, containing and deterring c) The counter insurgency strategy requires clearing and holding territory, which cannot be done without transforming a corruption-riddled, anarchic, and poverty-stricken state into a functioning market democracy (1) Totally beyond American interests and capabilities and promises only endless war d) Nor does, the all out approach help us in Pakistan, whose leaders continue to nurture long-standing alliances with the Taliban as a counterweigh t to India, Islamabads real worry e) US has never own a classic civil war or a fight against an insurgency in which it bore the brunt of battle and became local villain (ie Vietnam) f) Make it their war, not ours XII. Bases of Jurisdiction A. Generally 1. Jurisdiction a) Refers to the power of a state under international law to govern persons and property by its municipal law (subject natural persons and things to its domestic law) 2. 3 forms traditionally a) Legislative (prescriptive jurisdiction) (1) Create rules of general import b) Judicial (jurisdiction to adjudicate) (1) Authority of the a state to subject particular persons or things to its judicial process c) Executive (enforcement) (1) Authority of a state to use the resources of government to induce or compel compliance with its law 3. 2 levels a) the legislative, judicial, or executive powers of particular institutions are established under national law (constrained by states constitution and statutes) b) once certain types of jurisdiction are established under international law, the propriety of such jurisdiction can be addressed on the level of international law (1) it is important to note that even though customary international law may allow a state to exercise a form of jurisdiction, that does not mean that the state has in fact done so; reference must be made to the national law to see if that state has exercised jurisdiction to the extent permitted under international law (often, it has not) (2) under some treaty regimes, international law requires a state to exercise jurisdiction over a person present in its territory accused of a grave offense, so as to either submit the offender to national prosecution or to extradite the person to another states prosecutorial authorities (Belgium v. Senegal: Belgium alleged a failure of Senegal to exercise national jurisdiction by not prosecuting a former President of Chad who was living in exile in Senegal. According to Belgium, Senegal is obligated either to prosecute him in Senegal or extradite him to Belgium for prosecution, based on both treaty law for committing acts of torture and on customary international law for committing crimes against humanity) 4. Burden of Establishing Relevant International Rule a) Lotus Case: remains the classic international decision addressing the exercise of extraterritorial prescriptive jurisdiction (1) Asserts that international law allows the exercise of national jurisdiction unless a specific prohibition on doing so is identified in in international law (2) hence, the burden of establishing that an exercise of national jurisdiction violated international law rests upon the state or person asserting the violation b) Challenging View (1) When a states seeks to regulate matters extraterritorially, the burden is upon it to demonstrate the existence of all forms of jurisdiction is subject to an overall limitations of reasonableness (also seen in 3rd Restatement 403)
(1)

Karima Bennoune International Law and a Just World Order Spring 2011
Criminal and Civil Jurisdiction a) Concerned with the exercise of national jurisdiction in the form of both criminal and civil jurisdiction, but often concerns arise more in the criminal context because that form of national jurisdiction is seen as especially intrusive into the prerogatives of another sovereign Jurisdiction governing the exercise of national jurisdiction 1. Generally a) Permissible jurisdiction of a state depends on the interest that the state, in view of its nature and purposes, may reasonably have in exercising the particular jurisdiction asserted and on the need to reconcile that interest with interests of other states in exercising jurisdiction (1) Nature and significance: depends on the relation of the transaction, occurrence, or event, and of the person to be affected, to the states proper concerns 2. 5 basis Principles a) Territorial Principle (1) Whatever happens on the territory of a state is of that states primary concern b) Nationality principle (1) Significant interest in exercising jurisdiction over persons or things that possess its nationality c) Protective Principle (1) Interest in protecting itself against acts, even if performed outside of its territory and by persons that owe it no allegiance, that threaten its existence or its proper functioning as a state d) Passive Personality Principle (1) Protecting nationals e) Universality Principle (1) Certain activities are so universally condemned that any state has an interest in exercising jurisdiction to combat them Territorial Principle 1. Generally a) Determine jurisdiction by reference to the place where the offense is committed (all persons or things within its territory) b) Understood to be an extension of sovereignty of the state 2. Restatement 402(1): a state has jurisdiction to prescribe law with respect to a) Conduct that wholly or in substantial part, takes place within its territory b) The status of persons, or interests in things, present within its territory c) Conduct outside its territory that has or is intended to have a substantial effect within its territory (1) Increasingly important in todays world (2) Objective territorial principle 3. Schooner Exchange Case a) The jurisdiction of the nation within its own territory is necessarily exclusive and absolute b) Any restriction upon it would diminish sovereignty c) Any exception must be based on the consent of the state itself d) 1812 Classic view modern view has changed a bit 4. Munaf v. Green a) Reaffirmed primordial nature b) This principle even applies to US citizens who may commit crimes abroad even in nations that country where it is done does not meet US Constitutional standards c) There was no basis for a US court to block the transfer of the two men to the authorities of the territorial sovereign in which they allegedly committed wrongful acts Nationality Principle 1. Generally a) Determining jurisdiction by reference to the nationality of the person committing the offense in question b) Widely accepted by wide spread divergence to the extent to which states seek to assert jurisdiction over their national for conduct carried out abroad c) Conceptual basis (1) Allegiance that Defendant owes to the state he or she is a national to (different sort of expression of sovereignty) (2) Ie Laws seeking to curb participation of nationals abroad in sex tourism, bribery of foreign officials, etc. d) Why might a state exercise jurisdiction in this way?
5.

B.

C.

D.

Karima Bennoune International Law and a Just World Order Spring 2011
Territorial state (where the exploitation takes place) may not be able to take jurisdiction because they: (a) do not have the requisite laws (b) economic incentive to crack down on foreign criminals (c) corruption, or (d) that the criminals will leave the territory 2. Restatement 402(2): a state has jurisdiction to prescribe law with respect to a) The activities, interests, status, or relations of its nationals outside as well as within its territory 3. Blackmer v. United States SC of US, 1932 a) The jurisdiction of the US over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them (continue to owe allegiance to US as citizens) b) Principle suggests that sovereignty of US travels with its nationals overseas c) Relies on US v. Bowman willingness of US Courts to apply statues extraterritorially when Congressional intent can be so implied (1) Some lower courts have understood Bowman as grounded not only in the power of Congress to regulate the conduct of US nationals, but also in the power to protect state interests (thus relying on the protective principle rather than the nationality principle) as evidence in US v. Bin Laden Protective Principle 1. Generally a) Determines jurisdiction by reference to the national interest injured by the offense b) Question to ask (1) Which states national interests are being harmed by the offense in question over which some state is trying to exercise jurisdiction c) Not a central argument (1) Secondary to territorial and national principle (2) Claimed by most states and misgivings by a few other states (3) More subjective and possible controversy on who is to decide which states interests are harmed 2. Restatement 402(3): a state has jurisdiction to prescribe law with respect to a) Certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests Passive Personality Principle 1. Generally a) Refers to determining jurisdiction by reference ot the nationality or national character of the person injured by the defense b) Asserted by some states and US has embraced this concept in recent years (rejected by others) c) Less grounding and inessential to any state if another basis for jurisdiction can be provided for (much weaker than other 3) d) Useful (1) In cases where no other state will be able to exercise jurisdiction or has no interest in the matter (2) Ie US has used it in terrorism where there would not be another state able or with an interest do so where many targets were Americans e) Different take on sovereignty (1) One could argue states have a right to protect their nationals but the thing they are exercising jurisdiction over is the conduct over the non-national that may have occurred elsewhere f) Trends (1) A number of states have statutes asserting extraterritorial criminal legislative jurisdiction based on the victims possessing their nationality 2. Concerns a) This could lead to multiple conflicting claims to jurisdiction where an attack may lead to the deaths of the nationals of many different countries b) There may be fair trial issues given the victims are nationals of the state in question and Defendant is a non-national alleged to do the harm c) Pro: seen as a way to fill in the gap and protect nationals when no other state will be able or have the motive to exercise jurisdiction 3. Yousef Case
(1)

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F.

Karima Bennoune International Law and a Just World Order Spring 2011
Yousef contends that the Government exceeded its authority by trying him in the US for his conduct in the aircraft bombing case he also contends that his prosecution violate customary international law limiting a nations jurisdiction to proscribe conduct outside its borders b) Count 12: charged with conspiring to place bombs on board aircraft and destroy an aircraft (1) Court found that because it had jurisdiction over the substantive crimes charges including attempted destruction of aircraft in the special aircraft jurisdiction of the US it also had derivative jurisdiction over the conspiracy charges (2) Application of Rule in Bowman that Congress presumed to intend extraterritorial application of criminal statutes where the nature of the crime does not depend on the locality of the defendants act and where restricting the statute to US territory would severely diminish the statues effectiveness c) Count 19: Charged with placing a bomb on a civil aircraft registered in another country (1) No dispute Congress intended to apply to attacks on non-US-flag aircracts d) Irrespective of whether customary international law applies US law provides a separate and complete basis for jurisdiction over each of these counts, and contrary to Yousefs assertions, US law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and further, may conflict with both e) Contrary to Yousefs claims, customary international law does provide a substantial basis for jurisdiction by the US over each of these counts, although not under the universality principle f) Counts 12 18: consistent with passive personality principle (1) Because each of these counts involved a plot to bomb US flag aircraft that would have been carrying US citizens and crews and that were destined for cities in the US (2) Also appropriate under objective territorial principle because the purpose of the attack was to influence US foreign policy and the defendants intended their actions to have an effect on and within the US g) Count 19 consistent with and required by US treaty obligations and domestic law 4. US v. Bin Laden a) Concerning bombings of the US embassies in Kenya and Tanzania in August 1998 and a broader conspiracy to kill US nationals anywhere in the world (bombed US facilities overseas) b) Several statutes were justified under international law, at least in part on the passive personality principle c) Although defendants challenged the sufficiency of the indictment on the ground that the US has traditionally rejected the passive personality principle of jurisdiction, the district court disagreed, citing 402, comment g for the proposition that the ppp is increasingly accepted as applied to terrorist and other organized attacks on a states nationals by reason of their nationality d) Statute is no applicable only to US nationals 5. Limit on this principle: Achille Lauro Incident a) Congress adopted a new provision for killing or serious bodily injury committed against a national of the US outside the US b) Deliberately decided not to extent such homicide jurisdiction to all such extraterritorial murders on a general passive personality theory of jurisdiction, but rather only to those of a specified nature to coerce, intimidate, or retaliate against a government or a civilian population Universality Principle 1. Generally a) Determine jurisdiction by reference to the custody of the person committing the offense - determined by the nature of the offense and not by the relationship of the state to that defense b) widely accepted, especially UN Convention Against Tortured c) States do not exercise this very often in practice because they do not see an interest d) ALL STATES have an interest in preventing these crimes e) Controversial when it touches on political subjects f) One argument for jurisdiction not grounded in traditional reasons of sovereignty g) Theoretically understood as a way to fight impunity and having safe havens for perpetrators of international crimes 2. Piracy a) Grounded historically in approach taken to piracy b) General rule and only way to capture pirates c) Other areas: slave trade, genocide and war crimes d) It is also provided for as a matter of law under various treaties and customary international law 3. Belgium: Universal Law a) Universal Jurisdiction Legislation in 1993 granted victims the right to initiate a criminal investigation on the basis of universal jurisdiction
a)

G.

Karima Bennoune International Law and a Just World Order Spring 2011
b)

c)

Plaintiffs came form all over the world to bring their case in Belgium and this created problems financially Following a wave of complaints against high-ranking officials of various foreign states, political pressure led to an amendment of the act in April 2003, removing the right of victims to initiate a universal jurisdiction prosecution, and introducing immunity provisions in accordance with international law Under current law Belgian court have jurisdiction over international crimes only if the accused is Belgian or has primary residence in Belgium; if the victim if Belgian or has lived in Belgium for at least 3 years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case
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Critics Conservative Jack Goldsmith (1) Beyond the limits of idealism b) Brad Roth (1) Concern about expansion which is fundamental erosion of state sovereignty Restatement 404: Universal Jurisdiction to Define and Punish Certain Offenses a) A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attack on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in 402 are present. Restatement 403: Limitations a) (1) Even when one of the bases for jurisdiction under 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. b) (2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate: (1) (a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; (2) (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; (3) (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted. (4) (d) the existence of justified expectations that might be protected or hurt by the regulation; (5) (e) the importance of the regulation to the international political, legal, or economic system; (6) (f) the extent to which the regulation is consistent with the traditions of the international system; (7) (g) the extent to which another state may have an interest in regulating the activity; and (8) (h) the likelihood of conflict with regulation by another state. c) (3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, including those set out in Subsection (2); a state should defer to the other state if that state's interest is clearly greater. (1) Defer is the other state has a greater interest even if first state too could exercise jurisdiction (2) Comity sort this out in a friendly ways Pinochet Case a) Spain is seeking extradition of Try President of Chile for torture who was in the UK to try him in Spain. Spain is asserting universal jurisdiction specifically under Convention Against Torture b) Argument uses treaty on torture (not customary international law) (1) Convention was entirely about facilitating the operation against torturers because it was already illegal under international law and only way to make that happens was to give torturers no safe haven d c) House of Lords: Lord Brown Wilkinson (1) Why is it appropriate for offenses like this? (a) Forum Shopping perpetrator can just fly away and find a safe haven (b) Jus Cogens the idea is that these offenses rise to a level of jus cogens
a)

5.

6.

7.

Karima Bennoune International Law and a Just World Order Spring 2011
Critics of this case: if it is within the confines of a national system of the people to decide as a part of an agreement to democracy that amnesty of the perpetrator of past abuses should be allowed, why should it be revisited internationally? 8. Demjanjuk Case a) Those who torture are common enemies of all mankind and all nations have an equal interest b) Purpose of the Convention Against Torture (1) Facilitate punishment of torturers and giving states a treaty base to exercise jurisdiction 9. Youseff Case a) The court did accept in principle universal jurisdiction as a basis for jurisdiction but in this specific situation there was too much controversy to claim universal jurisdiction for the offense because it depended on how you define the offense of hijacking 10. Rationale a) No safe haven for those who commit some of the most serious crimes in the world and only way to enable them to be brought to justice because then they could just flea b) Values that are supposed to be protected some crimes are so great that they are matters of interest to the entire international community XIII. Immunity from jurisdiction A. Brigitte Stern- Immunity: Where are we now? 1. Since jurisdiction can arise out of the context of legislative, judicial, and enforcement action, immunities may also operate in these areas. B. Classical Approach 1. Schooner Exchange Case SC of US, 1812 a) Facts- Two Americans claimed possession of the ship, claiming that it had been seized on the high seas in 1810 by someone acting on behalf of France, and brought suit to keep the ship from being sailed back to France. The U.S. Attorney of Pennsylvania appeared on behalf of the U.S. Government to state that the U.S. and France were at peace, that the vessel was a public ship of the Emperor of France, that the ship had entered the Philadelphia port due to bad weather and now it was being held there by process of court. The government asked that the suit be dismissed and the vessel released. b) Holding- National ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction. c) The perfect equality and absolute independence of sovereigns, and thus their common interests in such, have given rise to a class (3 classes) of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction: (1) The exemption of the "person of the sovereign" from arrest or detention within a foreign territory. (2) Immunity of foreign ministers (3) Allowing the troops of a foreign prince to pass through his dominions d) The court takes this third option as meaning this is, by extension, open to ports. e) Rule: Absolute immunity of foreign sovereigners and sovereign immunity is inherently tied to sovereignty and can be no limitation except that which it accepts and is grounded in sovereign equality f) Functional Aspect of immunity (1) Different than treatment of ordinary foreign merchant vessel which can be subject of the law of the land but wants to protect things employed for national objects like the French Warship (2) National ships of war, entering friendly power, open to receiving the ship are exempt C. Policy for Absolute Immunity 1. Pragmatic a) Way of avoiding disruptive conflicts 2. Privilege a) Vehicle for sovereign elites to privilege themselves 3. Equality a) All states are equal 4. Theoretical Concerns a) Commitment to a notion of sovereignty and greasing the wheels of diplomacy and allowing foreign exchange of various kinds to occur D. State Representatives 1. Immunity derived from the FSIA (Foreign Sovereign Immunities Act) a) The FSIA provides for the immunity of foreign states and political subdivisions and agencies and instrumentalities of a foreign state. It does not expressly immunize individuals. Should it when they were committing an act in their official capacity? (If it doesnt, then who does it cover? People are the only ones who can take actions on behalf of a state.)
d)

Karima Bennoune International Law and a Just World Order Spring 2011
b) 2.

3.

Restrictive approach to immunity in 20th century and increases over time increasing limitations on international law on way that they interact with sovereignty Split in the circuits as to the immunity of individuals a) Chuidan Case (does not expressly exclude individuals) (1) Rule: Individuals are also protected by immunity under FSIA. (2) Background: Chuidian, a Phillipine citizen, sued Daza, a Phillipine citizen and governmental official who told the bank not to honor a letter of credit so that he could investigate Chuidian's involvement with a former head of state. Daza moved to dismiss the suit on grounds of sovereign immunity. (3) The government in a "Statement of Interest of the United States" claimed that Daza is not covered by the act because he is an individual rather than a corporation or association, but he is nevertheless entitled to immunity under the general principles of sovereign immunity expressed in the Restatement (the Third.) (4) Holding: The Court is not persuaded by the U.S's argument or Chuidian's argument. The section of FSIA does not explicitly include individuals, but it does not expressly exclude them either. Prior to the act, common law expressly intended to include individuals under sovereign immunity, and Congress did not intend to change the common law principles when it codified the act. (5) Greater following that the other view: sovereign immunity also applies to officials acting in their sovereign capacity (6) (NOTE: I think this is a stretch and may be contrary to statutory interpretation) b) Yousuf Case (1) Rule: The FSIA does NOT apply to individuals. (2) Background: Plaintiffs are natives of Somalia and bring the suit under the Torture Victim Protection Act and the Alien Tort Statute, seeking to impose liability and recover damages against Defendant Mohammad Ali Samantar for alleged acts of torture and human rights violations. District court concluded that Samantar enjoys immunity (probably following Chuidian). Circuit court reversed. (3) Holding: Plaintiffs did not bring the suit against Somolia, or a political subdivision of such. The Court noted the line of cases that follow Chuidian, and noted that the 7th circuit disagreed that FSIA applies to individuals. To make their decision, the court focuses on the language of the statute and also on the structure and purpose of the statute. (a) Focuses on the phrase "separate legal person" saying that it is "laden with corporate connotations" (b) If Congress meant to include individuals it would have expressly stated. (c) Construing "agency or instrumentality" to refer to a political body or corporate entity is also consistent with the overall statutory scheme of the FSIA. (d) Section 1608- Service of process on a foreign state or its agencies or instrumentality. (e) Finally, the House Committee Report explained that "separate legal person" was "intended to include a corporation, association, foundation, or any other entity which can sue or be sued in its own name" (4) Often followed in Human Rights Casesd Heads and Former Heads of State a) Regina v. Bartle and Commisioner of Police, Ex Parte PINOCHET UK House of Lords, 1999 (1) Rule: An action that is taken on behalf of a state that is CONTRARY to international law is not one that is protected by sovereign immunity. (2) Background: Spain asked that the UK issue a warrant for Pinochet. The petition alleged that, while the head of state of Chile, Pinochet had conspired with others to take hostage, torture, and kill numerous people, including Spanish citizens. (3) Issue: Does international law grant state immunity in relation to the international crime of torture, and if so, whether the Republic of Chile is entitled to claim it even though Chile, Spain and the UK are all parties to the Torture Convention and therefore "contractually" bound to give effect to its provisions from 8 December 1988 at the latest? (4) Holding: Distinguishes between rationae materiae and rationae personae. (5) Rationae personae- The head of state is entitled to the same immunity as the state itself. This immunity is complete and renders him immune from prosecutions of all actions whether they were for the state or not. After the person leaves post, a different kind of immunity is granted

Karima Bennoune International Law and a Just World Order Spring 2011
Rationae materiae- This is immunity on the actions done while the person was acting on behalf of the state, and this immunity continues on after they are no longer representing the state. (7) Is torture an action which can be done in an official capacity for the state? How can it be an official function to do something that international law prohibits? (a) The definition requires the action in question be taken by agents of the state or with their consent (b) Convention Against Torture is seen as an exception to immunity for former heads of state international tribunals have allowed for prosecution not only of former heads of state but current heads of state (i) Torture is on some ways an official act but not in the same way we mean it for immunity circumstances so greater emphasis on the torture exception or it would undermine the torture convention (8) Pinochet was not acting in any capacity that could be protected by rationae materiae because such actions were contrary to international law. Scope that applies to former and current heads from Pinochet (1) Ex-head of state only has immunity for acts done as a former head of state (on any matter) (a) Enabling foreign officials to do their job without outside interference (2) A sitting head of state has immunity rationae personae (a) Complete immunity with regard to all activities than enable that person to function in their official capacity without outside interference seeking to hinder the functioning of the state (3) A former head of state has immunity rationae material (a) Immunity for official acts conducted while head of state but not for non-official acts while you were head of state and can be sued for those Criticism (1) Sauce for the goose the idea that governments recognize that if you go in this direction, universal jurisdiction is just that and can be used against crimes against a wide range of officials (2) Degree to which it allows outsiders to be the judge of what has gone on in a particular country Arrest Warrant of April 11 (DRC v. Belgium) ICJ, 2002 (1) Rule: There is not an exception under customary international law to immunity for incumbent Ministers of Foreign Affairs where they are suspected of committing war crimes or crimes against humanity. (2) Background: DRC filed an application against Belgium concerning an arrest warrant put out by a Belgian judge against DRC's acting minister of foreign affairs. DRC contended that Belguim was violating international law by purporting to exercise enforcement jurisdiction over another state's foreign minister. (3) Holding: The Court looked at the Functions of the Foreign Minister because immunity is not granted for them personally but in order for them to perform their function. Their functions are: (a) Diplomatic activites in international negotiations (b) His/her acts bind the state (c) He/she travels frequently (d) Must be in constant communication (4) In this respect, no line can really be drawn between "official" act and "private" acts. If there was a risk of arrest, it would hinder the ability of the Foreign Minister to do his or her job. (5) Belguim argues that an exception is made for serious crimes under international law. But DRC answers that there is no precedent for the prosecution of an incumbent minister. (6) Narrow Ruling (a) This is a procedural and not a substantive ruling: The court is not saying that he is innocent. Just that he can't be prosecuted at this time. Once he is out of office, he is open to prosecution under Pinochet. (b) ICJ did not rule on whether Belgiums statute itself was permissible in international law (c) Higgins, Bermenthal, Humal write separate opinion saying the court should have also ruled on universal jurisdiction issues and recognizing customary international law does all for universal jurisdiction over crimes in this case against humanity and serious violations of humanitarian law (7) Difference from Pinochet
(6)

b)

c)

d)

Karima Bennoune International Law and a Just World Order Spring 2011
(a) (b)

He is the foreign minister at the time the arrest warrant is issued There is no exception to sitting ministers even for the gravest violations of international law