International law exam notes

Week one: intro to international law

Optional reading

- Thinking about the character of law (in Canada) 

o Law aspires to certainty, order, persuasion, reason and justice – integral to
understanding and defining society  
o Law has many different forms – central debate about international law is the
source of its authority 
o Start with canada, caught between Queens treaties with aboriginal communities
(equals) and canadian law that sees canada as terra nullus (barren and deserted) 

What is law  

- Law as tradition 
o Both formal and informal  
o Emerges out of expectations about proper conduct 
o Legal tradition is a general aspect of culture, historicaly conditioned attitudes
about the nature of law, the role of law and society, and the proper organization
of the legal system 
o Legal traditions are cultural, legal pluarlism is about the international character
of law 
 Single legal orders with different rules applying to identical situations  

Canadian law 

- Canada has civil law, common law and indigenous legal traditions 
o Overly static interpretation of any one can crush the other (tension over
copyright in Canada) 
o General lack of knowledge about Canadas indigenous law – provides examples
overlooked (great law of peace international treaty that predates westphalia)
- Supreme court of canada recognizes continued existence of indigenous legal traditions 
o Settlement did not terminate the interest of aboriginal peoples arising from their
hisotrical occipation and use of the land  

Law as hierarchy

- Problem with practices 

o Common assertion that indigenous communities were 'pre-lgal'  
o Based on assumptions of savagery, ignorance, stupidity, etc. (colonial) 
- Canada as settled territory in legal literature 
o Too unfamiliar or primitive to compel british obedience (Quebec?) 
 o English colonies = english law in textbooks 
 Except the crown sought indigenous agreement before settlement 
 Only works if indigenous communities didnt have authority recognized by
the crown, which the crown recognized 
 Discovery of land = property would result in indigenous ownership of
canada 
 Is occupation legal grounds for ownership?
- Legal hierarchies emerge from ethnocentricism
o Local judges in India emphasizing universal human rights  

Canada as multi-juridical

- Canadas inherent internationalism?

- Sources of indigenous law 
o Sacred law: (Canada, the queen, god) peace and order clauses in treaties based
mutual recognition of different higher powers (god vs creator) 
 Treaties reflect sacred values 
 Haudenosaunee see an alliance with crown (not part of Canada)
o Natural law: Hobbes, Rousseau, Locke 
 Indigenous are 'natural' = right to dispossess 
 Technical abilities and environmental stewardship and laws and rules
(inuit and arctic sovereignty)
- Deliberative law 
o Revision and implementaiton through practices and debates (due process,
gender equality, economic planning) 
o Choices between civil, political, social and economic rights, on top of, beside, and
in opposition to indigenous rights (human rights on reserves) 
o Indian act 1876 (racist and sexist) still in force 
o 2.7 % of canadas population = 17% of all admissions to federal institutions
- Chief of justice of provincial court of appeal 
o You say indigenous law exists, i dont believe it for a moment
- Positivist law 
o Proclamations, rules, regulations, codes, teachings and axioms 
o Literal reading of texts (constitutional purists) 
 Rare within indigenous traditions – not deliberative enough
- Customary law 
o Central importance to international law  
o Found in common, civil and indigenous  
o Not always explicit, require interpretation and enforcement  
 Canadian courts allowed 30 years old adoption 
 Labrador and nunavut recognize the role of Inuit law as authority in the
region, and their assemblies including, poorly written traditions,
 observances and practices, opinions of elders, consensus and community
based planning  

Introductory conclusion 

- Canadas legal traditions are inherently complicated and inter-national  

o Questions about canada's non-colonial status
- International law is often critiqued based on assumptions about what law is  
o Think about what your cases emerge from (humanitarian law, nuremberg)
- Law stems from many places and interacts with other forms of law 
o International relations are inherent to international law 

Week two: defining international law

Case 1 

- Trail smelter arbitatration  

- International environmental law  
- Analysis 
o No international tribunal has held a state responsible for pollution  
o There is no duty to protect environemnt  

International law challenges  

- The issue of sources 

o Material sense (history) 
 Origin in practices, other legal system (dutch --> roman) 
 Why it is accepted as a rule 
 Practicial/political terms 
o Formal sense (legal) 
 Law as it currently stands 
 No hierarchy or quthority to adopt binding legislation  
 subjects of international law are the ones who create it  

Customs  

- Practices of states that lead to laws 

o Diplomatic relations, law of the sea, laws of war 
 Efforts to underway to codify  
o Still subject to state and customary law 
- Post 1945 
o Increasingly codified multilateral system 
o More confusion about sources/validity of international law 
 - Icj applies to  
o International conventions  
o International custom 
o General principles of law of civilized nations 
o Juridicial decisions of most highly qualified of various nations 
- Does the role of custom make international law eurocentric 

Treaties 

- Icj: interntional conventions, whether general or particular, establishing rules expressly

recognized by the contesting states 
o Convention+ treaty (not british constitutional law or conference)
- Article 102 of UN charter
o 33000 registered (several thousand multilateral) 
- Increased global interactions require more treaties
o Extradition, safety regulations of transport, aid, copyright, environmental
protections
- is international law inherently liberal 
o Forward looking cooperation 
o Replacing custom with explicit rules 

Treatise as contracts (1969 Vienna convention of law of treaties) 

- Lack of higher authority  

o Not like national legislation vs contracts
- Don’t apply to a large number of people (like a rule of law) 
o More about consenting rules between consenting parties 
 Legal transactions?
o Arguments that genocide convention, human rights treaties, are true
international law
- Key differences  
o Treatise can create laws 
o All states have to agree (even genocide) 
o Grey areas (treaties as contracts but weak law making) 

Subjects 

- Only subjects of international law 

o States, international organizations and traditionally recognized entities
- Ngos, corporations, foreign corporations
o Contracts internationally between nations and corps 
o Corporations ability to directly sue states under NAFTA 
o Corporations are not mercenaries (no one state) 
Custom 

- Customs (from ICJ case USA vs Nicaragua) 

o US breached customary international law not to intervene in the affairs of
another state, use force against another state, violate sovereignty of another
state, intervene in its affairs 
 General practice (how is that a law) 
 Accepted as a law (before it is a law?)
- National laws and jurisdictions 
o Legal foundation for national decisions (declassified/wikileaks?) 
o International tribunals 
o Treaties as eveidence of customary law (wary of explicit provisions) 
o Treaties as evidence of customary law (wary of explicit provisions) 
- Extradition (why bother with making explicit if existing rule) 
- Repetition 
o Constant and uniform usage (not perfect, but consistent)
- Custom examples 
o 1969 Vienna convention of law of treaties  
 Bound by customary law not the treaty  
 Treaty overriden if customary law exists
- ICJ case- US vs. Nicaragua
o UN charter was applicable treaty 
o Customary law used as basis of decision 
o Declaration of maritime law 1856 
 Prohibited privateering (enemy goods on neutral ships) 
 Small number of signatories 
 Many followed as customary law 

State practices 

- What states do and what states say 

o Acts less frequent, but now states transmit positions publically and widely 
o State communication takes place in public (Obama on North Korea) 
o Why they act also matters (France vs Turkey p.11)
- What states do not do 
o Silence = acquiescence 
o Canada vs US on devils lake 
o US and NSA 

Does agreement make law 

- Small number of states --> practice --> dont conflict with pther practices = law? 
o What constitutes opposition? 
 o Soviet union- codified national laws = consensual theory of law – treaties make
explicit implied laws  
 Laws are different for different groups of states 
 Divergence from law just means new system forming  
 Problem: new states  
 Normally expected to confrom to existing laws (law of sea, etc.) 
 Post colonial states? Perverse? (South Africa) 

Civilized 

- General principles of law recognized by civilized nations – UN 

o Now peace loving 
o To draw upon national alws or interntional practices in the international system?
- Different traditions in different national systems  
o English systems vs other systems  
o Should the ICJ fill in, or state the 'matter is unclear'  
o International situations often have no precedents 
 Judicial decisions 
 Learned writers (Grotius, Lemkin) 
 Acts of IOs (UN general assembly, secretariat) 
 Soft laws (Forest declaration RIO 1992) 
 Equity/justice/natural law (fill gaps) 

Hierarchy of sources of law 

- Treaty and customs are complicated 

o Can a treaty override a custom 
o Equal authority, latest prevails, unless conflict 
 General later laws dont override early specific laws 
 Special laws prevails over general law
o Hierarchyand equity are in conflict
 Treaty --> custom --> general principles --> subsidiary
- Treaty viod if contrary to morality? 
o USSR was secular – needed a non-natural basis 
o Jus cogens – preemptory norms vs. Local custom  
o Requires recognition at large to be preemptory  
 Use of force, genocide, slavery, racial discrimination 
 Barcelona traction – 'basic rights of a human person nuclear' weapons  

Ergo omnes (toward all) 

- to the concern of all states 

o Consequences of breach – effectiveness  
 o ICJ --> no foundation for action, only violation  
 Vilations are not always crimes (not international criminal law –
Israel/Palestine)
- Codification  
o Efforts to put custom into writing  
o International law commission (34 international lawyers) 
o Draft of general rules, summarize law for GA, how to create acceptable drafts) 
o Harvard creates drafts too, instructive not law 

How effective is international law? 

- Political and policy process 

o More politicized than national law 
o Less certainty than national law 
 But changes less than national law
o Reflects current governments (Bush/Harper/Obama)?
- law itself is relatively stable 
o Referent and marker of policies (Powell UN) 
o Efforts undertaken to make actions conform  

Violation and compliance 

- States admittedly violate 

o Buy american/softwood lumber 
o Detaining foreigners illegally
- States change facts/deny facts 
o Guld of Tonkin, Thorton Affair, USS Maine
- States violate for change 
o Anti-ABM 
o Kyoto 

Society of states 

- Hedley bull 
o Mutual recognition of existence = norms/laws  
o Shapes and determines behavior (diplomacy)
- Norms and obligations 
o Nuclear shields, umbrellas, proliferation 
- Acceptable violations  
o Israel and eichmann
- Minor violations  
o Breaking contracts, nationalizing industries  
 

Delimiting power

- Long term perspective 

o Averts short term gains (seizing property, invasive intelligence) 
o Act against own interests (japan plaza accord) 
o Delay actions (iraq)
- Influences what states say 
o Observing international law (Hitler hiding the holocaust) 
o International law as justification (Syria) 

How much of law is overserved 

- Still gaps in international law 

o Arms races, extradition of criminals (Polanski vs. Assange) 
o Power influence limits (Israel)
- Perception larger than reality 
o Geneva convention 
o Genocide?
- International law important in policy creation  
o Influences policymakers and bureaucrats 
o Impacts low-level officials and officers (snafus, gaffs)
- Violations are sexy but hardly the norm 
o Thousands of treaties observed every day 
o Geography matters (Yemen and Canada – low level of interaction) 

Why do nations observe the law 

- Realism would imply opposite 

o Not observed, just not broken yet 
o Defining nation interest key 
 Narrow – breaking easy 
 Broad – breaking exception
- Observation is normally easier (Iraq) 
o Policies require extensive work – violation much harder 
o Benefits need to outweigh costs (Afghanistan) 
o Lawfulness begins at home 
o Perceptions matter (honor, leadership, influence, canada) 
o Friendly relations are easier  

What are the costs of violation? 

 - Response of victim 
o Punish, retribution, prestige, principle 
o From protest to war (symmetrical) 
o Diplomat arrest, embassy destruction (US China) 
 Shooting down planes (US China)
o Minor violations magnified (Taiwan) 
o Major violations more complicated (Iran, Italy, WW1)
- Other factors 
o Tacit agreements  
 USSR-China-USA 
 China-USA-Korea 
 Kennedy and Khrushchev – Cuban missile crisis
o Multilateral agreements and responses 
 Third party intervention (Canada on behalf of US) 
o Domestic influences  
 Public outcry (Turbot affair) 
 Infrastructure (Universal postal union, fishing conventions) 
 Constitutional structure, colonial legacies (Quebec/France) 

Advantages of violation  

- Improve international position (Iraq) 

o Fund domestic programs 
o Insult bigger power (Venezuela) 
- Unlikely reprisal  
o Too powerful 
o Influence not diminished (Kyoto/Israel) 
o Low costs (kidnapping)
- Domestic pressures 
o Pre-emption 
o Blood lust (cities of refugee/asylum) 
o External threat (Israel) 
o Administrative bodies (CIA) 

Week Three: competing theoretical perspectives/ international economic law   

Review

- Hierarchy vs equity 
o Reason is equitable 
o Privileged by west 
 o Based in secular tradition 
o Underpinned by values
- What is international law? 
o Jurisprudence (origins of the law, practices and rules and procedures) 
o International court of justice = state-to-state (public international law) 
o International criminal court = crimes against humanity (public international
criminal law) 
o International humanitarian law = war crimes (nuremberg trials, ICTY, ICTR,
Lebanon, ICC sometimes) 
o International private law
- Where does law come from 
o Custom, treaties, subjects, state practices, agreements, general principles
- What is the hierarchy of the sources of law 
o General principles override state choices 
o General vs specific 
o Codification for all to access
- How effective is international law 
o Long-term effectiveness 
o Short-term violations 
o Observation is easier, violation undermines long run  

Nicaragua 

- Central issues 
o Jurisdition of ICJ, sovereignty, consent, reciprocity, usefulness of law, S vs N,
compulsory jurisdiction 
- nicaragua arguments 
o Violate sovereignty, interfere, violate UN, charter 
- American arguments  
o No jurisdiction, no law, no direct invovlement  
- Expanding th elimit of ICJ and IL 
o ICJ power, power over US, compulsory jurisdiction forces invovlement, about the
character of law itself (no convitions, judgements) 
- Implications of the international system 
o Prohibition of use of force, power of ICJ, role of ICJ, usefulness of court, power of
UN  
- Compliance 
o Withdrawal of compulsory jurisdiction, inability to use the court, nicaragua
rescinds payment  

Role of theory and practive in the law 

- is ther a need to defend international law? 

 o We know that it functions well 
o If people dont believe, it becomes recurrent interpretations of international law  
- Looking at sources (rather than theories) 
o Norms underpinning the system (civilization)
- Interpretation of the law requires normative frameworks 
o Nuremberg vs victors justice  

Debates on theory 

- Theories of law 
o Kantian (liberal tradition) 
 Abstracted rules and principles discerned from practives 
 Necessary for understanding, context and discussion of issues
- Hart (policy tradition) 
o No unifying foundation for the sources of law 
o No greater truths to be unearthed behind the rules of lae 
o Public, common standards of judicial decision making  

The problem of politics 

- Inherently normative approaches 

o Different assumptions lead to different interpreations 
 Law of the sea and common heritage of mankind  
 Does the regime validate international law (and those who opt out) 
 International cyber-attacks (use of force against other nations – who
responds with what authority)
o Tacit and explicit assumptions about arguments 
 Are there common values in the international system enough to enforce
international consensus  

Case: UNCLOS III 

- Deep seabed mining 

o Beyond state territory 
o International seabed authority 
 Grants permission for exploitation of resources
- China has signed and ratified UNCLOS 
o Has begun exploitation of deep seabed resources, building islands 
o 15 year contract to explore 15000km for polymetallic resources
- Reagan was unable to achieve objectives at UNCLOS 
o Wants private companies right to resources 
 US companies have no recognized title 
o Would have to propose exploration from third country 
 o State-based application makes resources avaliable to states 

Cold war law 

- New haven school 

o Normative duty inherent in law – to liberal democracy as lawful and to stop the
spread of communism (advance human dignity) 
o Law schools should train democratic values in the interests of the american
polity 
 Apply them to every situation, as policy and values permeate law 
 Promote, rather than impose, democratic values, but to reduce and
reject those who do not follow those values
o Problems of vhoice and decision making (how far to go- the matrix) 
o Law constrain and draw upon past decisions
- Soviet theory 
o Objective foundation of law 
 Progressive legal principles, social development to ensure peace,
cooperation and free development of peoples
o Human progress leads to socialism, so international law is necessary to help
oppressed social systems (rules --> proper behavior) 
o Economic base influences law (reject art. 38 of ICJ) 
o Close cooperation of like-minded states engaged in cooperative struggles (joint
defense against internal and external enemies) 
o Breznev doctrine (czech, hungary, afghan, iraq) 

Case: Article 51 of UN charter 

- The right of self degense and the security council position 

- Is cyber attack an armed attack? 
- Pentagon: computer sabotage from another country is an act of war (stucnet and iran?) 
- Should we have an equivalence standard 
- What if the perpetrator cant be specified? What if the damage is monetary? 

Cold war cooperation  

- Different starting assumptions (human dignity vs inevitable goal of socialism) 

o Soviets: human rights are not natural (material) therefore states can determine
how they are achieved (Universal is contingent) 
o New haven: international law cant be mixed with policy (denies norms) justifies
policies that violate law (support policies that support US)
- Fallibility of human decision making (lack of all information, perspectives) inevitably
relies on assumptions (the decider)  

Common ground 
 - Much of the theory is detached from practices and non-instrumental  
o Needs to be to aviod state interests 
 Reject state as authority of international law entirely? 
 Whole is greater than parts? 
 International unsociety (state sovereignty justifies brutal actions)
o Minimally idealistic to achieve best results 
 Ideas important for actions? 
 1917 reussian revolution (terror) 

Decadence 

- Hegemonic theory 
o US is conservative/libertarian - constitutionalists 
o No international law is superior to US constitution  
 Municipal law detemines US itnernational engagements  
 Bush used on Guantanamo and Abu Charib – denying applicability of
Geneva conventions – not sources of constraint on the executive 
 Federal judiciary cant interfere with areas its constitutionally excluded
from (politics) - willful decadence (applies to no other states) 

History and institutions 

- Role of authority in the law 

o 1648 shift from religious hierarchical authority to state-based horizontal
authority 
o Explicitly european in their sensibilites/ civilization/ economic structures
- Industrial revolution increases interaction between states 
o From mercantilist resource grabs to liberal cooperative trading regimes (ITU)
international telecommunications union  

Economic law and economic theory (sic) 

- Mercantilism (zero sum world economy) 

o Pursue the economic interests of your state 
o Reduce the vulnerability of your state by achieving self-sufficiency
- Comparative advantage (growing world econcomy) 
o Each country can specialize (ignore subsistence) 
o Trade equals greater overall outputs 

International law before ww1 

- Only civilized members allowed (Turkey yes, China and Japan no) 
o Everywhere else were colonial possessions
- Ww1 destroys the idea of liberal progress 
 o League of nations propose to prevent war 
o Collective security/failure to prevent aggression 
- Permanent court of international justice 1921 
o Becomes the ICJ  
o UN renames the PCIJ follows decisions  

Great depression and ww1 

- No central regulation of currency 

o Aggressive tariffs and aggressive exports 
o Rampant protectionism 
o Beggar-thy-neighbor policies
- Bretton woods 
o Efforts to regulate internationally  
o Trade agreemetns (GATT) and gold standard 
o IMF (short term loans), IBRB (WB) 

GATT 

- Contracting parties meet in session 

o Nondiscrimination, reduce trade barriers, only use of tariffs (not NTB), regular
multilateral negotiations 
 Dispute resolution and compliance to be worked out
- Colonial powers get exemptions of agriculture 
o Grandfather in existing preferential agreements (colonial arrangements) 
o National security can trump agreement
- Overall: multilateral and bilateral trade agreements reinforce a cooperative liberal
international legal trading system  

Bonus May reading : Ipr  

- IPR as a matter of life and death 

o HIV-AIDS drugs and cost 
 Ghana and Brazil tried to import from Indian manufacturers 
 Merc and US take them to the WTO – theft of intellectual property
helping no one
- Trade-related intellectual property rights (TRIPs) part of the WTO 
o Compulsory licensing can be implemented in case of exceptional circumstnces 

Intellectual property rights 

- The HIV cocktail was created in the US with the use of public funds 
o Are textbooks inheretly unethical 
 o Kenya passes law complying with TRIPS by laying out exceptions
- 1955 TRIPs created with 73 articles, building on long-standing multilateral treaties of the
World intellectual property organization (WIPO) 

What are intellectual property rights? 

- Constructs a scarce rersource from kowledge or information that is not formally scarce 
o Users compete to utilize a material resource 
 Hammer – share the use = scarce 
 Idea of building with hammer nails is not scarce 
 If were both cabinetmakers, construction knowledge might be
important  
 Refuding to teach others, could be anticompetitive 
 Rivalrousness is not necessarilly socially beneficial
- IPR creates: 
o Ability to charge rent for use 
o The right to receive compensation for loss 
o The right to demand payment for transferred to another party through the
market  

Types of intellectual property right 

- Intellectual property (patents) literary or artistic intellectual property (copyright) 

o Should apple have to pay QUALCOMM the % of its total revenue for licensing its
radios?
- Social benefit comes from limiting terms 
o Patents under TRIPS are limited to 20 years 
 Must be new, nonobcious, useful or applicable 
 Should be lodged at a national patent office 
 States establish legal mechanisms to ensure inventors can extract
payment for their ideas when others use it 
- Copyright is concenred with the form of knowledge and info that would be termed
literary and artistic works 
o Expressed in words, symbold, music, pictures, three-dimesional objects or
combination  
o Fiction and nonfiction, musical works, artistic works and pure art
- TRIPS extends protection to broadcasts and typographical arrangement of publications 
o Plots, colour does not receive protection  
o Europe has a moral right to not have work tampered with or misrepresented 
- Copyrights last much longer than patents 
o Life of author +50 years (minimum under TRIPs) 
o Used to be as low as 14 years 
o Should postal codes in canada be in the public domain
 - Trademarks distinguish one company from another  
o Is google a verb 
o Once established acquire commerical value
- Ownable property- limited to 10 years 
o Process rather than an actual machine (CPU fab creation)
- Geographic indicators 
o Champagne, Parma Ham – distinguishes from other regions
- Trade secrets article 39 undisclosed info 
o KFC secret blend of spices 
- all dependent on state enforcement, mechanisms by which actors can make claims vs
public interest 
o Claims about plagarism are as old as recorded history 

Law doesn’t function in a vacuum 

- Constant and explicit justification  

o Property in a sense is the codification of a particular social relations (commodity
fiction) 
o Common heritage of mankind – who should own the moon?
- Intellectual property emerges as a concept in 1855, absent from US federal court
between 1900-1930s 
o 41 times in the 1970s, 287 times 198-s, 800 times in the 1990s
- TRIPS is a symbolic document when created 
o Drafted by 12 US multinational corporations  
o Expansive notion of digital rights management technologies  

Justifications for intellectual property  

- Abours desert- John Lockes influential formulation of improvement of land 

o Ownership of fruits of work (justification of profit) 
o Susceptivle to marxist critique
- Propertys link to the self – hegel 
o Prevent the invasion and attack of others 
o In europe this protection passes through sale
- Pragmatic need for individuals allocating resources 
o Increases efficiency through the use 
o Embed social trust = complex trade relations = economics  

Political tensions 

- Patents are not the consequence of scarcity, they create it 

o Raises prices to scarcity
 - If we say the state is imposing duties, restricting freedoms and inflicting burdens on
individuals = a lot less appetizing  
o Grant some control over resources and deny capacity without permission  

Issues that follow 

- Patent tickets 
o Multiple and overlapping patent rights 
o 100 parties have claimed property to 'golden rice' = more costly, slows down
development 
- Monopolies, cartels and trusts in the early 1900s 
o Consumer goods such as fuel oil, sugar, matches, linseed oil, whisky 
o Interstate commerce act of 1897 and 1890 sherman antitrust act – enforced in
the 30s and 40s 
o General electric forced to stop using shell companies but reatined patents 
o US firms object to German pharmaceutical monopolies 
 Argue that compulsory licensing must be allowed 
 Ww1 promotes self-sufficiency in drug porduction  
 1917 US seixes 4500 german owned patnets 

Key events 

- 1940s US firms restricted from cartels, able to hoard intellectual property 

o General electric and DuPont do aborad to avoid US restriction  
 Providign command of the market, set prices 
 Efforts to obtain as many as possible – then create patent thickets to
protect products 
 Edison  

Key events post- 1945 

- General agreement of Tariffs and Trade (GATT)  

o US efforts to invalidate patents as trusts 
o Reduced costs equals less investment 
o Japan produces VCRs, transistors, integrated circuit as development strategy
- 1980 – new supreme court attitude towards patents 
o Patents are put on the same level as free competition  
o Debate about form shopping (west texas) 
o Patents reemerge as system to protect and exclude rather than compete and
diffuse 
o Polariod corp. The eastman kodak = monopoply to polariod  

The role of international law 

 - US 1980 push for change in international system 
o 1986 Uruguay round  
o US corporations form international property committe (PIC), pushes Europe and
Japan
- US government sues info industries as key sectors (US trade representative) USTR
becomes key advocate  
o Establishes bilateral treaties, divide and rule 
o Draws on G-77 efforts to politicize TRIPS  
o if they want access to patents they have to reform their national economies  

week four: gender and law

review

- politics, theory and the law

o relationship between ideas and international law
o inherent normative framework in interpretation
- inherent tension is the idea of agreement and acceptance of practice
o policy oriented approach – USAUSAUSA
- UNCLOS
o Who should control environmental resourcs
o US  corporations world  states
- Cyber attack
o What are the thresholds for conflict?
should states or law decide
- 1648 – rational legal framework
o between states (zero sum) = mercantilism
o within states (postivite sum = free trade)
- 1945 – need to regulate private/economic transactions
o GATT, WTO, WB, IMF, Gold standard
- 1971 – private international law reemerges
o origins in law merchant
o contemporary finance derivates
- Private transnational governance
o Public good from private action (economic)
o Beyong state regulation
o Ability to suggest/write/implement laws (RIAA)
o Voluntary social regulation (global compact)
o Technical authority, contract based
o Beyond the scope of national or international public law

Preamble
 - Ethics and practices in the classroom
o Issues of discussion
o How we go about it
o Offensive ideas
o Personalization of problems
o Deployment of extreme cases (torture debate)
- Gender pronouns/washrooms

Trigger warnings and platforming

- Do we have a responsibility to non-platform offensive ideas

- What is the responsibility of academics to mental health
- To what extent is academic play titalating
- To what extent does the violence of analytics remove the visceral and real experiences
of bodies
- To what extent do institutions reflect racialized power/violence?
- To what extent is victimhood the only legitimate voice under neoliberal individualism

Framing sexual violence through security

- Securitization theory
o Framed in terms of existential threat (speech art), emergency action, audience
accepts or rejects action
- Spectacle of rape as a weapon of war
o Aid agencies, governments used to justify funding
- Commodity fetishism – eroticization of objects to grant them with value beyond their
objective worth
o Alienation of things from their context and the labor that produces them
o Subjectification which allows them to generate an economy and become the
source of trade
- Is the academy of westerns world source of discovery?

Primer through oprah – natural (WATCH VIDEO)

- Biologically consistent (1/2000)

o Not the same – there is no single intesex condition – non-typical body
- Socially constructed
o Was unremarkable part of human societies (genital ambiguity)
o Start showing up because doctors notice for other reasons, become concerned
(patients not)
o West loves binaries
 Frane – homaphrodites forced into gender roles to prevent deviant
lifestyles
 o Discovery of homosexuality by doctors = search for cue
o Definition in 2000

Gender

- Assigned roles based on assumptions and characteristics

o Inherently oppressive?
- Feminisim as implicating gender in all practices
o Non-discussion in indicative of gender roles
- Framework to assess the frameworks of international law
- Important contributions to international law
o Conventions on status of women
o Alliances with southern/postcolonial movements
o Sexual, gender and violence in international law
o Rape and genocide
- Is gender too broad to be a useful concept? Is wartime sexual violence a product of
social or military norms
- Gender included in the rome statute 1998 for the icc
o Disputed in the process of drafting (refers to the two sexes, male and female,
within the context of society)
 Holy see and vocal conservative arab states concerned about its
conclusions as to genera
o Roles in society vs functions in society
o Refused to recognize more than 2 genders (seen as conservative success)
- Should feminist womens organizations have the right to refuse trans members?

Knop: on origins of law

- 1648 peace of Westphalia

o recognition of sovereign statehood
o authority transfer from imperial/ecclesiastical order to international society of
states
o refusal of recognition of non-werstern law
- Grotius 1625 – de jure belli ac pacis (on the law of war and peace)
o Community of states
o Conduct delimited by rules
o Reason over weak rational faith
 Domination over nature
 Hierarchy of order based in power rather than god

Statism
 - Weber – a state is a human community that (successfully) claims the monopoly of the
legitimate use of physical force within a given territory
o Claims are not always successful (open to contestation and struggle)
o Conceptualizes resistance within the very concept of the state
- In international law legitimacy, becomeskey to recognition
o 1991 – respect for democracy and human rights necessary
o importance of the rights of minorities
o democratically representative (internally, as group and externally as legitimiate
actor)
o there is a shift towards democracy as norm and practice internationally

state as individual (backwars in reading)

1. state as a physical body analogous to an individual

o relations envisioned as male – conflict/cooperation (realpolitik) vs social/ethics

of care (ICRC)
o Violations as penetrations/violation/imagery of rape (US v alvarez-machain case)
o Individuals as non-reproductive (pregnancy in states) normal processes of self
governance

2. State as individual private property

 Home/family vs work/public
 Torture (public) central in post ww2 international law (sexual assault)
o Corporations as private in international law
 Cutler, law merchant
o Humanitarian tradition vs non-intervention
 Domestic abuse vs monopoly of violence
 Facebook as normal progression of non-invasion?
o Should states intervene in genocide, civil war, Syria?

Further impediments to statism

- Kantian ideal
o Respecting human rights and legitimate democratic representation = full
international citizen
o Illegitimate sttes = some rights but not full international citizen
- Intenraitonal law rejects the framework that denies human rights of substate actors and
individuals
o Gender is not explicit, but the structures exist to be utilized
- Are human rights becoming more universal through the advancement of international
law?
Actually existing international practices

- Limited numbers of women in positions of power

o Male norms functioning is the standard
o Few women in foreign service and international organizaitons (application
requirements, lifestyle, traditional societies)
- Gender norms as an impediment to democracy
o Can a structure be democratic if 50% of the populations concerns cant be heard?
o Weak feminism: institute proportional representation
o Strong feminism: the necessity of womens structures/voices/framework(new
structures)

The role of civil society 7:27

- Abstract/ahistorical/unchanging structures cant explain content changes (state

indifferent)
- Issues are bigger than state borders (UN women)
o 1976 Algiers declaration, 1976 international tribunal on crimes against women
o efforts to distrupt the normal functioning of events
o soft law efforts to impact hard law decisions
- post-cold war
o less emphasis on hard power issues (nuclear weapons), more concerned with
genocide/human rights abuses

NGOS as international actors

- UN inclusion as recognized participants

o Business NGOs/environmental NGOs
- More say in the decision-making process
o Canada/US consultation on beyond the border
- NGOs expand the definition of power/consent
o Less hierarchical, more representative
- Customary international law
o Has moments of tacit consent in it
o Follows traditional relationships and treaties
- Are gender segregated societies homo or heterosocial

The little mermain

- Pre-disney little mermaid

o She has to sacrifice her voice, and she would die the next morning if he married
someone else – cant appeal to him without voice, dies
- Central critique of law and sexurity – the inability to speak
 o Missing gender analysis and the role of gender in developing threats
o Highlight the lie at the center of securitization and the law – securitization of
silence happens all the time
- Leaders/actors securitize a referent object that is existentially threatened
o State, environment, economy – voice helps decide what the objects are

Security and law

- Security as silence
o Women cant report rape as risk being securitized
o The existential threat to women is a successful securitization
- International security
o Successful securitization would require as sufficiently powerful group of states,
but states consider these issues domestic/internal/social
- The problem stems from the linguistic character of bofies
o Gender and sexual violence validates authorized forms of security
o Bodily politics are the blind spot of speech – why the disappeared are so easily
excluded (female infanticide consistent 2-4% of the population, or 100m)

Seriousness

- How serious should politics be?

o Gender challenges seriousness, but also risks irrelevance, as taken as secondary
importance
- Rice allowing new feminine subjectivity
o Instead of gender – upset policy makers
o Can men be feminists?
o In a phallogocentric society women get equality as long as they don’t forget to
stay women

Role of women

- Woman question
o Equality = normal, ordinary, natural
o Women hold up half the sky
- Societies do better with equal rights
o Peace-building, quotas, full-partners
o Peace-keeping problem race/sex/gender
o global femicide

the return of policy oriented perspective

- relative to larger context in a preferred world public order

 o has an inherent morality, has authority and control, and is a larger framework of
interpenetrating global processes
- public order decisions secure principal values
o human dignity should apply to 50% of humans
o internationalize transitional, driving substance from the state system as well as
moving beyond it (falk)
o equality vs objectivity, reason, universalism
- how do we prioritize which values are most important?
o constitutionalism

definitions

- gender: covering masculine and feminine roles and bodies alike, and all other aspects,
including the (biological and cultural) structures dynamics rules and scripts associated
with each gender group
- lempkin – genocide: means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group
- convention on prevention and punishment of the crime of genocide: 11 december 1946
that genocide is a crime under intenratinal law, contrary to the spirit and aims of the
united nations and condemned by the civilized world

Raphael Lemkin

- 1920s and 1930s establish framework for conveying the vulnerabilities social minorities
o Armenian genocide
- Vandalism, barbarity?
o Genos (race, tribe) cide (killing)
 Often mass killing but also destruction (cultural formations)
- Used to hang around the halls of the UN
o First published 1944 adopted 1948

Balkans as watershed in research

- Feminist activists prepared

o The ability to explicity target rape as a weapon of war
 Soviet soldiers post ww2, Bangladesh 1971
- Crimes against the female victim needs to be explicit
o 1907 family honor and rights
o high percentage of women in UN refugee camps (UNHCR 20+ million a day)
o often rendered absent by males swept up in conflict
- sexual violence against males is also a regular part of conflict
- rape, castration, mutilation in Balkans and Rwanda
- need a word for the explicit sexualized violence in conflict
 o gendercide – traditionally battle aged men
o Thucydides, homer, Hebrew bible massacre of males, enslavement

Gendered nature of conflict

- Genocides normally target man first and then the subsequent populations second
o Belgian congo, stall and in USSR, Bangladesh 1971, Balkans 1990 (90% men)
- Cleansed populations are predominantly women and children
o Men killed, detained, incaracerted, fled, exile
o Demographic impact on countries, structural violence conflict on societies

Gendercide

- Foregrounding of gender in mass killing

o Institutionally: mass killing of infant girls, girls nutritional and educational
deficits, infanticide/neonaticide/foeticide, the maternal mortality, honor killig,
witchhunts (federici Caliban and the witch)
o Perpetrators: shoah/holocaust: functionalist escalation (vs internationalist),
reserve police battalion 101 (15 out of 500 not participate), impact on
psychology of group led to industrial, modern tactics (gendered organization,
brutalization escalates trauma inducing trauma)
- Is war inherently gendercidal?

What does a gendered approach contribute

- Interplay of gender is part of conflict (very western as well)

o Feminization as tactic, masculinization as cohesive
o Cohn and patting missiles (domesticating them)
o Just war – pacifism vs heroism
- Need to look at how men and women participating in the mass killing
o Performances of gender in order to justify acts/resistance
o Spivak: white men saving brown women from brown men – can the subaltern
speak> can we hear them?

Gender and justice

- ICC and gender justice

o Sexual violence rarely recognized much less prosecuted
o ICC and the prosecutor have pursued gender crimes more prominently
- Addressing the roleof victims
o Largely absent in Yugoslav and Rwanda tribunals: restitution, compensation and
rehabilitation with satisfaction and guarantees of non-repetition
- Should al peace treaties have to include guarantees of non-repetition?
Far enough

- Why only sexual violence in wartime?

- Transformative reparations require systemic change
o Too many investigations end before any changes happened
- Thomas dylio lubanga case 2012
o Enlisting children under 15 to participate in activities in the congo
o Absence of sexual violence charges in courts
o Included only in the reparations, but that reparations should be gender sensitive
and appropriate the different for women, boys and girls
o Currently under appeal
- Can wartime sexual violence be distinguished from societal sexual violence?

Genders impact on international law

- Forgrounding of sexual violence in international intervention

o Congo/UN
o Plural conception of masculinities and feminities
o Gender selective UN policies (srebrinca and battle aged males)
- Making womens right and explicit part of all human rights frameworks
o UN women- like homeland security
o Efforts like R2P, which foreground gender and rape
o Maternal mortality – 600000 per year. Cuba better than the US – large-scale loss
of life

UNSCO 1325-2000

- Security councils comprehensive review in august 2000 and peacekeeping operations

o Only two minor references to women
o Pressure from NGO working group and feminists
- Addressing women and children in conflict
o Womens positive contribution to peace
o Womens equal and full involvement
 Importance of depicting women as peacekeeping personnel, military
observers, civilian police, human rights and humanitarian workers, peace
advocates, pairs of human rights, refugees, ex-combatants as well as
victims of armed conflict
o Demonstrating the complexity of womens experiences
o Refraining from the traditional narrative of women as weak and vulnerable that
legitimates intervention
Costs of 1325

- Danger of being dazzled by inclusive language

o Like translation of policy and action
o Lack of hiring senior managers, poor resources, lack of experience and
marginalization still common
o Language becomes the goal in and of itself
- 1325 validates the ongoing relevance of the security council
o shift from states to civilian oriented politics, and collective good
o also claims to assist the very groups that most SC resolutions will inadvertently
harm (only one reference to conflict prevent)
 omission of disbarment and peace goals of the womens movement
o no oversight mechanism (effectively non-binding)
- is the existence of the security council, a remnant of the cold war and thus an
impediment to peace?

UNSC 1820-2008

- stresses importance of sexual violence in conflict

o omission from amnesty of conflict resolution
o full participation in security matters
- narrows again
o sexual violence in armed conflict
o women as ‘vioable’ – in need of protection
o women and children reemerges
o privileges sexual violence over death
 inequality breeding situations
 oversimplification of military discipline and weapons against defenseless
women
 inequality as natural and armed conflict as inevitable

UNSC 1888,1889,1960 (2009-2010)

- deploying experts who have a focus on sexual violence in UN operations

- role of women in peace and security and disbarment
o focus on post-conflict situations
- sexual violence against women and children
- ending impunity, focus on rome statute and ICC and problems of peacekeeping
o zero tolerance policy of sexual exploitation and abuse by UN personnel
- who should be responsible crimes by UN peacekeepers?
UNSC 2106 and 2122 (2013)

- UNSC resolutions on women, peace and security

o Prevention and protection in conflict and lack of participation in peace and
security agenda
o Explicit discussion of rape and sexual violence
 Sexual violence as aspect of war crimes
o Direct recognition of girls as targets of violence, abuses of womens human rights,
use of gender adivsers in policy creation
- High level review 2015

Modern Sexuality

- Rape as weapon of war

o New target of moral panic
o New source of funding and aid
o New ways to make womens bodies the object of concern
- Panopticon as vision of western surveillance
o Education of desire, through society of normalization
o Settlement as the natural way of disciplining bodies
- To what extent is self-survelliance the goal of the front-facing camera

Men and responsibility

- Brown miller
o From prehistoric times to the present, I believe, rapists played a critical function,
is nothing more or less than a conscious process of intimidation by which all men
keep all women in a state of fear
- Collecgtive responsibility
- To what extent is rape linked to masculinity

The imbalance of gender

- 9% of the victims of rape and sexual assault were men

- assertation that rape is common in war
- all the categories of men, women, rape, violence, acts are disputed
- men who do rape and women whose rape is done to
- focus on male perpetrators
o how much is the responsibility, mens
o to what extent collective responsibility is applicable

dealing with responsibility

- moral, legal, casual, political

 - legal: appropriate subject to prosecution and sanction in systems of law and justice
o to what extent is sexual violence a prohibition or a taboo?
o Prima nocta/droit du deigneur?
- Moral: social practice? Hidden? Normal?
- Casual: how events came about
- Political: responsibility for particular wrong as a consequence of their public role
- Which is most appropriate? Which is most realistic?

Distributed collective responsibility

1. Direct perpetrators
2. Facilitators of the climate, especially with younger men
3. Potential stand-in,would act if they were there
4. Responsibility by omission and not stopping when its possible to do so
5. Beneficiaries to the extent it maintains social advantages over women

Constructing individual legal responsibility

- Serb stand in for single and identity which is linked to sexual practice
- Individualist view of politics and suffering – no emphasis on gender dynamics and
gender power
- Legal framework still functions in an abstract individual with free choice framework
o Command responsibility, oversaw, ordered or were in a position to prevent
- Are all women in wartime potential victims of rape
o Does gendered work function through tacit implication?
o Are men culpable because of the implication?
o Is sperm a biolgocial weapon?

Dangers

- Tautology – for the standings

- Possibility – involvement in hypothetical scenarios
- There is no such thing as men
- Concrete collections of men such as violent mobs, groups of soldiers or corporate
entities – not the same as men
- Collective responsibility is difficult to determine – problems of collectives, structure or
agency problem
o Associations may change behavior but don’t necessarily dictate it

Whole is not the sum of its parts

- Command responsibility is different than collective responsibility

- Danger that if we are all guilty, no one can be held guilty
- What is the point of reparations?
 - Patriarchy is responsible but men in patriarchy are not?
- Theory versus analytics versus contingency
- Agent of culture of male socialization – not real

Catherine mackinnon

- Male is social and political concept, not a biological attribute.. it has nothing whatsoever
to do with inherent sex, preexistence, nature, inevitability or body is such
o Both conscious and unconscious
o Pornography and saturation in Yugoslavia prior to the war, dehumanization of
women

Treating rape as a weapon (arms control)

- Icc
- Definition sex/gender neutral – Abu ghraib
- UNSC 1820 – rape as war tactic
- Security studies as the study of threat, use and control of military force
- Is rape a weapon?

Theory debates

- Positivism vs peripheral studies

o Relapse into neo-neo-neo… positivism
- State security is starting point, power a central
o War is:
 Material and therefore studied using positivism
 Force and domination are power over
 Zero-sum game of relative gains
- Rationality underpins research

Self help

- Sovereignty is the monopoloy over the legitimate use of violence

o Rape undermines monopoly

1. Available to everyone
2. No monetary or labor costs
3. Available repetitively, not rely on nonrenewable resources
4. Dan note: is this totally repugnant?

- As embodied weapon it escapes traditional control and embargo

o Not continued by state borders, part of interstate civil war, cross territorial lines
– DRC, Darfur
 o Does rpae have a material character?

Asymmetric strategy

- Power over – zero-sum situation?

o Asymmetric strategy
- Male bodies are more readily equipped to rape
o Do we agree with this
o Overwhelmingly perpetrated by men
- Systemic strategy to take power away? DRC
o Darfur, humiliate men

Rethinking

- Rape as weapon of war – not a legal concept, legal significance

- Used against women in peace and war time
- Systemic, pervasive or officially orchestrated aspect – deliberate policy – political event
- Akayesu – mariner of wanda convicted of aiding and abetting rapes committeed as acts
of genocide
- Committed with the intent to destroy in whole or part a particular group
- Actual prosecution of rape disaapointing in Rwanda
- Only 5 convincted
- Investigators office not trained, poor investigations lack of diversity among investigators,
poor indictements and lack of coordination

Systemic vs individual

- Rape foregrounded and popular in pop culture

o Grotius – raped women – used as a symbol of civilization
o Hyper visiblebut low individual outcomes
- Western legal systems have a rape script gendered grammar of violence
o Easily dealt with systemically, difficult in the specific
o Both sides raped conflict, little space for hutu narratives

week five: rising constitutionalism

review
- Gender and the law
o Not just women, men as well
o Intersex – regular = normal = binary norms can be oppressive
- Inherent masculine statism (individual as island/property in the law)
 o International law creating a larger role for social movement actors = women
o Onlyway out of impasse to reject large concepts althogether
- Gendercide
o Mass killing has an inescapably gendered component
 Men targeted first, pacifists killed
 Heroism, bravery, machimsmo
o Genocide conventiosn explicity exclude gender and sexuality
- Feministm
o Controversy around the term
o Equality is staus quo, everything else is more complicated

Primer: international agreements

- Treaty
o An international agreement embodied in a single formal instrument made
between entities both are all of which are subjects of international law
possessed of an international personality and treaty making capacity and
intended to create rights and obligations or to establish relationships governed
by international law
- Bilateral treaties
o Between two states dealing with specific issues
o Extradition treaties
- Multilateral treaties
o Agreements with more than two parties, can expand existing bilateral treaties
o NATO, OAS, WTO, WHO
- Declarations
o Legal principles applying to a region
o General agreement before a conference, published widely
- Executive agreements
o American agreement without the sentates explicit approval
o Made solely by the executive branch (but how can it be accpmplished without
congressional support/funding)
- General principles of all treatise
1. Necessary obsevations of treaties and obligations
2. Binding only on those states that have signed and raified them
3. Among states not governments
4. Registered with the UN