Search for content, post, videos

International Law: stream of consciousness notes

The Concept of International Law

Definitions and Considerations

International Law (IL) in Historical and Contemporary Perspective

Historical Perspectives

General Factors

Spread of Roman Law through Europe

Revival of trade/commerce during Middle Ages

Formation of Leagues of Trading Towns for protection of trade and citizens engaged in trade

Development of Maritime Law made necessary by spread of international trade on the seas

Growing custom of States to send/receive permanent legations

Establishment of permanent standing armies

Renaissance and Reformation

Plans for maintaining International Peace

Discovery of America

American Revolution

David Bederman

Natural Law = something intrinsically part of humanity/society (especially human rights)

Positivism – states subject to no moral authority above them

Views:

IL is whatever states say it is

Natural Law is all well and good but
who gets to say what Natural Law is?

Rules:

Multipolarity good for development of IL

Anarchy or unipolarity bad for development of IL

Responsive to conflicts only, not preventative

Sovereignty → states are independent and autonomous; IL would not develop without independent states

Evolution: Unquestionable power of Monarch

Claim of particular authority to a territory

Power of state over citizens

Sovereign equality (freedom of states with other states freely at international level)

Popular sovereignty (power of people within State)

Limits: Globalization, neo-liberal economics, development of legal constructs like human rights, epidemics (i.e. AIDS)


“Disaggregated Sovereignty” → great control over own territory but all states face global issues *Current Status

Richard Falk

Successful areas of IL:

Management of Complexity → resilient capacity by sovereign states to contrive mutually beneficial ways of dealing with implications of interdependence

Problem areas of IL:

Containment of Conflict within Tolerable Limits → Procedures for prohibiting aggressive uses of force

Promotion of Decency in the World:

Equity (Poverty/Mass Misery)

Development (Increased quality of Int’l Life)

Avoidance of Catastrophe → failed because no political will to achieve restraint

Some Success: promotion of decency → defining equity and encouraging development

Contemporary Perspectives

TWAIL I: Anghie & Chimni “Third World Approaches to IL…”

Generally: Focus is getting voice heard (embrace 3rd World)

Focus on sovereignty and non-intervention

Historically developed during emergence/anti-colonial forces of 3rd World

GOAL: Democratic formation of IL

Reasoning:

Indicted colonial IL for legitimizing the subjugation and oppression of the Third World peoples

Pre-colonial 3rd States were not strangers to idea of IL

Non-rejectionist stance towards IL → IL could take steps to incorporate needs/aspirations of newly independent states

Principles of sovereign equality of states and non-intervention

Political independence in itself insufficient to achieve liberation, since economic structures which linked 1st and 3rd World continued to disadvantage South (therefore needs reform)

TWAIL II: More critical of system (expands success of TWAIL I)

Critiques:

3rd World State and global system as repressive → resort to violence and authoritarianism

align with 3rd world people, not 3rd world states

IL inherently colonial → Colonial expansion developed “Universality” characteristics of IL

Thus, Doctrine for assimilating non-euros into IL inevitably shaped by relationships of power and subordination inherent in colonialism

“Civilizing Mission” – characterization of non-euros as “others” who must be civilized creates crucial role for Race

Justifies “humanitarian” violence for saving non-euros from themselves

Northern Scholars and Northern Institutions set standards of understanding and approach to IL

Differences between 3rd World areas (i.e. gender, class, race, religion, etc)

Kohler

Global Apartheid

Poorer half own <1% of wealth

90% of household wealth in North America, Europe, and Select Asian Pacific nations

Structure

De Jurais Regime → SA Apartheid legally designed inequality

De facto results of global legal system

Did not account for important power centers in 3rd World (BRICKS)

POI → “North” has many sectors of extreme poverty, “South” has many sectors of wealth/power

North Policies: Violate justice and fairness, basic needs, human rights, equality, democracy, racial nondiscrimination

Feminist Approach

Organizational Structure of IL:

Women invisible, male perspective dominates

Men primary law makers

Impacts content of IL

Overlooks needs of women → regulation of conflict and trade/economics

Lack of Representation on IL Bodies

Normative Structure of IL

Assumption that law norms are neutral fails to recognize that law may impinge differently on men and women

Women’s experiences tend to be silenced or discounted

Private/Public Divide continues

Private sphere territory seen as hands off

i.e. Labor → home work not accounted for, despite enormous amount performed

Falk – “The World Order Between Inter-State Law and the Law of Humanity: The Rule of Civil Society Institutions”

Transnational Non-government (i.e. Amnesty International) → voluntary associations of citizens using information of abuses of citizens to further Law of Humanity

Activation of Peoples to pursue their emancipation from oppressive structures of government?

Is IL really law? → Yes, but functions differently from domestic legal order

Vertical:

Domestic legal order has enforcement capacity , legal decisions can be enforced

Horizontal:

IL not hierarchical as a de jure matter

Legally, IL is a State system based on formal relations between states

IL obeyed most of the time in ways we don’t think of

Non-Compliance Issues:

Sanctions → Difficulty, should it be codified?

Failure to systematically address sanctions remains

Mobilization of shame

Unilateral/bilateral sanctions by states, institutions, companies, UN

Int’l Criminal courts → direct responsibility of individuals

Viewpoints:

Critics → real forces behind IL is politicas

Positivists:

John Austin → no such thing as IL because no 3rd party “command” that is routinely enforceable

Hart → set of rules w/o rules of recognition therefore not law

Caveat: not lacking “primary rules of obligation” therefore Law in content, but not necessarily form

Koh – “Why Do Nations Obey IL?”

Rational Interests → obtain interests in wealth/power/etc

Kantian

Franck’s notion of Rule-Legitimacy

Causal Role of National Identity

Constructivists: identify formation and Int’l Society

Transnational Legal Process

Process:

Interaction

Interpretation

Internalize

Evolutionary Process

Compliance Theory based on trans-national legal process

U.S. → IL part of OUR law i.e. recognizing treaties

Sources of International Law

Overview:

*Article 38 of Statute of Int’l Court of Justice*

Sources:

Int’l Convention Rules

Int’l Customs

General Principles of Law

Other

Primary Sources: Treaties, Custom, General Principles of Law

Formally equal, but not equal in effect

Secondary Sources: Judicial Decisions, Teachings of the Most Highly Qualified Publicists of the Various Nations

Judicial decisions strange since many countries don’t follow precedent

Not Included: General Assembly Resolutions

Article 21 of Rome Statute

Compared to Article 38

More specific, clearer about hierarchy of sources

Logical for a criminal court

Civil and Criminal Law compromised by drawing judges from both speres

Specific to ICC, Art. 38 still the Keystone

TREATIES

Definition: Int’l agreement usually concluded between states in written form and governed by IL, can be embodies in a single or multiple documents, can be called many things (protocol, covenant, pact, etc) – 1969 Vienna Convention

Essentially:

Writing

Between states

Covered by IL (not a contract)

Strength: Exceptional → usually result of extensive deliberation and negotiation

Agreements freely made between states should be “binding”

Generally

Types: bilateral, multilateral, multilateral open to Ratification by every State in the world

Types of Regimes (obligations):

Law making → broad norms

Contractual

Legislative Treaties → create legal obligations to states that are non-parties to a treaty

Positivists – love treaties because state not bound by a treaty unless they choose to be party to the treaty

Creation

bi-lateral: come together, negotiate

multilateral: come together (usually the UN), expert text by non-state read, “1st reading” used to go over and create a first draft with bracketed text (unsettled issues), adopt by consensus (bad b/c lots of power if dissenting→ waters down the purpose)

Can take years, Sausage Metaphor applies, sometimes works fast if issue seen as urgent or emergency

Adoption: agreed upon text that is considered the treaty, not yet entered into

How to be Bound:

State signs the treaty

All you need in some cases

Sometimes – signature pending ratification i.e. Senator

Article 18: States that have signed but not ratified cannot take concrete steps to defeat the treaty

Sort of an Interim Status

Exceed/Accept to the Treaty → simply express desire to be bound to treaty

Recap

Once bound, must follow treaty practice sum suvante

If in need of ratification after signature, interim obligation not to take steps against the treaty

Treaty law tries to promote stability → if state enters into treaty, cannot renege when new regime enters domestically

Entry into force → treaty actually representing a set of legal obligation for the consenting parties

Usually set within treaty

Amendment of Treaties: formal process similar to original process

Takes time to change, which is good for stability purposes

Some protocols can be enacted to make amendment swifter

Prolectic event can be placed in a treaty so a future event triggers a change in obligation

Termination

Sometimes limited lifetime

Sometimes decided out of date

Rules for denunciation and withdrawal

i.e. fundamental change of circumstance, “higher law norm”

Protocol creates fairness and stability → all states give up something and get something

Interpretation

Ordinary Meaning Textual Approach → literal language of the treaty

Pro: no judicial activism

Con: Can be hard

*Ordinary Meaning Contextual Approach*

Mainstream approach, ordinary language keeping in mind the purpose of the treaty (negotiations, agreements, etc)

Teleological or Ultimate Purpose Approach

Interpret Language so as to make it work

Pro: Function

Con: Judicial Legislation (Judge deciding what treaty meant)

New Haven School of IL → Policy goals drive treaty interpretation

**Professor B does not like this approach to interpretation

Importance

Malanczuk, Akehurst’s “Modern intro to IL”

States more interdependent than ever

Treaties are the major instrument of co-operation in IR therefore instrument of change

McDougal, Lasswell, & Miller “The Interpretation of Agreements and World Public Order

Agreements are indispensable for establishing a stability in people’s expectations → lessens predisposition to arbitrary violence

Modest Minimum World Order → “constitutive process” develops through agreement including whole of people’s behavior

Agree to base values → allows work towards global goals in producing/distributing new values

Agreements even more important as world becomes flat

Definitions, Nature, and Significance

Ott,“Public Int’l Law in Modern World”

Types of Treaties: Natural, Contractual, “Law-making,” “Legislative”

Kelsen, “Principles of IL” → contractual, creates norms (through contractual obligations)

Kaplan & Katzenbach, “Political Foundations of IL”

Contract of various domestic legal systems

Bi-lateral and not legislation

Mutual advantage/reciprocal rights → “bargain concept,” governments subject to politics and therefore double as international legislatures

K overcome if not in government’s best interest (or an individual(s) political interest)

Legislative analogy helps see how treaties are more than a K

Bilder, “Managing the Risks of International Agreement”

Agreements result of centuries of human norm evolution

If countries didn’t think important, would not enter into so many and spend so much time

Often viewed as foreign policy told (broader than legal thinking)

Different degrees of commitment → view agreements to be performed in Good Faith consistent with the realities surrounding it

Consider Long Run policy

Constantly changes as circumstances and expectations change

Charlesworth & Chinkin, “Boundaries of IL: A Feminist Analysis”

Consent as basis of obligation → “male” in contrast of communitarian value alternatives

Low level of women in treaty making process ensures International matters of concern defined by men

Not many women in IL making body → ideas consistently being considered and evaluated from single gender perspective

NGO’s make limited progress:

Excluded by some governments

Not consistently present

Not allowed at drafting sessions unless specifically invited

Many governments use reservations to limit women’s rights

Conclusion/Acceptance

Starke’s International Law

Negotiation and Adoption

Authentication, signature, and exchange of instruments

Ratification

Ratification and Municipal Constitutional Law

Absence of duty to ratify

Obligation not to defeat the object and purpose of a treaty prior to its entry into force

Exchange or deposit of ratifications

Accessions and adhesions

Entry into force

CUSTOM

Role:

Helps define legal rights and wrongs not covered by treaty

Paves way for codification of standards

Facilitates treaty interpretation by filling

Helps define rights & duties of states not party to treaty-based Int’l Organizations

Give International Tribunal jurisdiction where lacking under conventional law

Scholarly Opinions

Venkata Raman

Legislation and adjudication do not exhaust process of “law”

Even where formal institutions provide guidance, lawmaking process can’t be described w/o acknowledging customs

*Lawmaking is “comprehensive and continuing process of communication comprising primarily of:

an agreement process

a process of formal enunciation through parliamentary organs, AND

the customary process”

**Legal assumptions based on uniform practices

Judge Hudson → Distinguishes law making customs from rules of courtesy/convenience customs

Practice

Concordant Practice by a # of states

Continuation over considerable period

Conception that required by IL

Acquiescence in the practice by other states

Opinio Juris → what states “think”

Ott, “Forming Customary Law” (Positivist Position – states don’t have to follow rules it has openly objected to)

Customary Law = habitual activity observed as a matter of goodwill at the discretion of the particular state. Find customary law by:

Examine the evidence of state practice

Sources:

Foreign Relations conduct documents

General expressions of state’s view i.e. official manuals

Both:

Actual government decisions

Legislation/judicial decisions of higher state courts

Both:

Comments on draft treaties

Voting in international bodies

Both:

Language used in treaties

Pattern of treaties

Problem: states may act out of momentary interest that causes variance from the norm

Determine whether required elements present and combined to general law

Element 1 → Opinio Juris: belief that certain practice is obligatory as a matter of law

Asylum Case Rule: practice if expression of a right belonging to one party and a duty to the other

Lotus Case Rule: cannot infer opinio juris (legal obligation) unless states involved are “conscious of having a duty”

 

Lotus Principle: sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition e.g. custom w/ force of law that restricts discretion of State re bringing an alleged criminal in the high seas to trial for killing its citizen.

 

Problem: Forms new laws based on assumption that the law is already legally binding

Practicality: infer opinio juris unless clear indications to the contrary

Element 2 → Duration (something totally accepted, something brand new)

Short duration may be offset by strong showing of other elements

Element 3 → Uniformity and Consistency

Possible for SOME and still be a RULE

Practice of states not varied and no discrepancies

Element 4 → Generality and whether practice is fairly widespread among a majority of states

Universality not required

Persistent objector – not bound by particular custom

Subsequent objector – not able to escape being obligated unless other affected states acquiesced

If no persistent or subsequent objection, then bound w/o acceptance

D’Amato

Claim is not an act → articulates legal norm by not material component of custom

Claim not act until it takes enforcement action

No precise number of acts or restraints necessary to satisfy material element of custom formation

Persuasiveness depends on number of precedents

Higgins

3 Views

Rules Based – IL dependent upon power (get away with rule breaking)

Process Based – authority & control = law → non-compliance over time removes normative status as a norm

Grey Area – if no higher rules (i.e. No Torture), cannot be treated differently from ordinary rules in practice

Analysis Tools of Custom

New Norm Requires both:

Practice → forms, changes, and kills norms

No “high normative status” needed

Opinio Juris of normative status

Norm doesn’t die unless majority of states withdraw both practice and opinio juris

Higgins believes customary law is a Process, not a set of rules (Jus Cogens → preemptory norms (“the very big no-no’s”)

Uses torture to show custom recognition despite violation since opinio juris still exists

Legitimacy Issue? – acting outside law changes law itself.

Process Based: violations of customary norms way of changing the law

Higgins Claims Practice of torture is illegal, not actual practice of committing the act

Rules Based: violations reflection of power politics

Cases

North Sea Continental Shelf Case (ICJ 1969)

Facts: Denmark and Netherlands want Shelf divided according to equidistant principal of Geneva Convention on Cont. shelf

Issue: Does treaty give rise to customary law?

Consequence would be to bind non-signing parties

Argument: Article 6 accepted by opinio juris (binding on non-convention parties)

Problems with Argument:

Equidistant principal comes second to agreed upon boundaries

Contains special circumstances and controversies

No opinio juris → no justifiable interest of mandatory rule

*Not settled practice

**No evidence of belief that practice is obligatory by the existence of law requiring it (legal obligation)

Holding: Treaty possible starting source of customary law, but must satisfy Practice and Opinio Jurisrequirements

Nicaragua v. U.S.

Facts: U.S. used military and paramilitary forces in Nicaragua

Issue: Do non-aggression pacts (both U.N. and OAS) create or deny opinio juris? Does custom law supercede the U.S.’s reservations to the U.N. Charter?

U.S.’s Claim: Custom Law & UN Charter are same therefore U.S. rejection of ICJ jurisdiction etc prevents suit

Nicaragua Claim: Customary law not necessarily identical in context and application of conventional rule

RULES:

Court must find existence of opinio juris confirmed by practice to establish customary law

When conduct inconsistent with rules, treat as breach of rules, not new rule

Holding: Principle of non-use of force is customary law unconditionally. UN/OAS does not limit UN Charter codifies Customary Law against force

“universal international law”

Scholarly Opinions Related to Universality

D’Amato

Universality of Custom – “Objectivist” or “Sociological” View

Principle: Reliance on precedent drives universality of custom → sets expectations

Restrictiveness of Custom – “Participatory” or “Volunteerest” use

Principle: only nations that participates in custom formation process obliged

Favored by 3rd World

Problem: Typically, conflicts arise b/c states haven’t participated in custom formation process

Leaves us w/ little relevant IL

Wang 3rd World advocates gradual rewriting of IL to reflect global post-WWII change

Janis

IL Faults:

Diverse state practices makes consistency hard to find

No assurance different decision makers (i.e. judges) will reach same conclusions

Process of making customary law creates conflict

Chinkin, “Gender Deficiency”

IL Leaves out many and varied practices

No customary law condemning violence against women since non-conferring states disregarded

Violence against women

Kelly

Roberts

General Principles of Law

Article 38(1)(c)

Janis’s Views of different General Principles

Natural Law – beyond state consent

Positivists – requires state consent/practice

Comparative Law – found in all systems of law (most common)

Lauterpachy

Residuary source for rules that are unwritten

Custom difficult to find (Practice & Opinio Juris)

General principles just have to find Codified Law

Gap Filler → when no principle found in customary law or no treaty is on point

i.e. no existing rule, country free from a rule, or existing rule incomplete

“Civilized Nations” – subjective language → now means organized sovereign states of the world (not non-state entities)

Reality → courts cite when principle in question found in most every country in the world (Civil, Common, Islamic)

Usually procedural, not substantive

Scharter → Principle must make sense in Int’l arena

i.e.. specific crimes (murder) not appropriate at International level in their simplest state

Certain types of these crimes appropriate (Genocide)

Generally Accepted IL Noted:

Intrinsic Law: Engagement Violation requires reparation, Can’t take advantage of own wrong, Can’t transfer more than you owe

Municipal Law: Res judicata, indirect evidence, prescription

Distinction between General Principles of Law and Equity → general notions of equity takes extra-legal notions (fairness & justice) into legal decision making (not codified)

Jus Cogens → preemptory law accepted by states as whole with no deviation allowed unless restructured

*Extremely important values, yet no list

Legal Consequences: Trump persistent objectors, voids an already established Treaty, can raise a General Principle in the adjudication process

Charlesworth

Deficiencies:

Gender principles of states biased against women therefore using it as a basis for IL institutionalized gender bias

Women’s rights not part of jus cogens

Potential Uses

International organizations can step in to make gender roels part of general principles/jus cogens

Response to emerging contemporary issues

Approaches to solving  Problem:

Identify gender problems

Make feminist rules universal, not state specific (i.e. Food, reproductive freedom, violence, equality, etc)

Incorporate female rights into jus cogens

Highlights problem between Naturalists and Positivists

Overarching law vs. what states consent to

Subsidiary Sources of IL

Judicial Decisions

Compromise between Civil and Common Law Counties

Art 59 → no binding force of Judicial decisions except between the parties

Reality → World Court follows own jurisprudence to create expectations etc

ICJ Judgments, ICC, International Criminal Tribunaals …etc and even some domestic court decisions

Critique: Reality is the courts are making law

Teachings of Highly Qualified Publicists

Works of writers helps understand primary sources of law → direct evidence, not speculation, taken into account

Historically important

West Rand Central Gold Mining → authors more often write about what the law should be and not what it is

Schachter → writers represent their own state, get around be citing very broad sources

Section 38(c)(2) → if parties agree court could decide what is fair according to the facts and not the law rarely happens. Different from equity since fact specific.

Equity

Article 38(2) – Article 38 “shall not prejudice the power of the Court to decide a case ex aequo bono [according to what is right and good], if the parties agree thereto”


Equity = Justice therefore shaped by norms of society

Changes with the changes in society over time (fluid)

Legal determination shaped by general principles of equity that may be part of law but not codified

Shacter

5 Uses of Equity

Equity as a basis for “individualized” justice tempering the rigours of strict law

Equity as consideration of fairness, reasonableness and good faith

Equity as a basis for certain specific principles of legal reasoning associated with fairness and reasonableness: to wit, estoppel, unjust enrichment, and abuse of rights

Equitable standards for allocation and sharing of resources and benefits

Equity as a broad synonym for distributive justice used to justify demands for economic and social arrangements and redistribution of wealth

Upside: Fairer result from flexibility in the law

Downside: Subjective

Lapidoth

Diversity of opinion on “justice” etc hinders equity’s role between nations

General principle or form of interpretation?

Other “Sources” of International Law

UN Charter and Other Intergovernmental Organizational Resolutions

Note: all countries represented with equal vote and no veto power, gives everyone an equal voice

Ott

Possibilities:

No legal effect for UN Charter Resolutions

Authoritative interpretations of UN Charter → enforceable as a treaty

Helps create customary law → agreement shows opinio juris or creates practice that leads to customary law

Quasi-Legislative Effect → if so unanimous in an area devoid of law (i.e. 1960s space resolutions)

Strength of status depends on:

Language

Voting records

Whether resolution repeated or not

Higgins: Security Counsel Resolutions not strictly sources of IL but ad hoc sources

Security Counsel may create obligations, not necessarily law, unless leads to customary law

Norms to Consider

subject-matter of the resolutions in question

whether binding or recommendatory

the majorities supporting their adoption

repeated practice in relation to them

evidence of opinio juris

Tunkan: when security counsel repeats over time, becomes law

Van Hoof – “Other Source” approach

Resolutions constitute a separate, independent source of international law

Sohn: unanimously approved General Assembly declarations may be seen as “leading to the creation of new international law applicable to all states” and representing “a new method of creating customary law.”

Van Hoof’s response: drops the requirement of “usus [i.e. practice]” and that therefore one is faced here with “not just a new method of creating a customary international law, but rather a new method of creating international law altogether

Soft Law approach (middle ground between hard law and non-law)

General Assembly resolutions and other such prescriptive communications do not create full-fledged rules of IL capable of fitting into the traditional “sources” categories but nonetheless fulfilling “at least some, if not a great number of the criteria required for rules to be considered rules of IL and [which therefore] cannot be put aside as non-law” van Hoof

Downside: challenges legitimacy of IL sources

Upside: Useful if no other standard on point

*Reveals legal value of ambiguity

Indicates potential for IL to change over time, also reveals incompleteness of IL

Recap-

Practical Questions to consider:

Who is going to decide the case?

Who is making the law?

Purpose: Legal norms do not simply exist; they were manifested in a continuous process of evolution and hence emanate from several different sources

Non-Conventional Concreted Acts and Declarations

Aust: “Lawyers practicing in foreign or other ministries deliberately utilize instruments which employ carefully chosen terminology to indicate that, rather than create international legal rights and obligations, the intention of the participants is to record no more than mutual understandings as to how they will conduct themselves.”

“such instruments have been variously described as ‘gentlemen’s agreements,’ ‘non-binding agreements,’ ‘de facto agreements’ and ‘non-legal agreements’”

The Application of International Law

Application of IL at the International Criminal Court

Tribunals: Rwanda and Yugoslavia

Weakness: dealt mainly with actions of mid or low level personnel, most leaders responsible for war crimes escaped being brought before the court

Strength: reaffirmed/advanced principles of criminality and individual accountability laid down at Nuremberg

Not triggered by massive human rights violations, but by “threat to international peace and security” under Chapter VII of the UN Charter

ICC

Creation

Rome Statute

U.S. signed and subsequently unsigned

U.S. “Hague-Invasion Act” allows U.S. to rescue any soldier held by the ICC

State on territory offenses allegedly happened, if ratified ICC, extends ICC jurisdiction

Procedural Limit:

Can only hear cases which occur after 1 July 2002

Operates on Principle of Complementarity

ICC will have jurisdiction only when national legal system is unable or unwilling to carry out a genuine investigation or prosecution of persons alleged to have committed international crimes.

Safety Net, in effect

Fears: use for a political advantage (especially against powerful countries like the U.S.)

Dusko Tadic Case

Facts: Serbs attacked Croats and Muslims, put them in concentration camps, where they were tortured/murdered/sexually abused

Tadic accused of being part of violations:

1991 – banned Muslims from his pub, lead Serb party in town.

Bosnia breaking away from Yugoslavia, has slim Muslim majority, then Bosnian Serbs trying to break away from Bosnia, Tadic’s village is in the middle and has 15,000 Muslim residents

2,000 Muslims killed in artillery siege, then round up rest of Muslims, 5,000 subsequently executed

Tadic pointed where to bomb and who to execute (intellectuals etc)

Tadic spends a lot of time in camps because pub destroyed economically

Charges: Crimes against humanity, Grave Breach, Violation of the Laws or Customs of War

Crimes Against Humanity – Customary IL – attack on civilian population, widespread and systematic

Grave Breach – Treaty IL – certain heinous violations of the Geneva Conventions, comes from IL that applies only to certain types of conflict

Applicable Articles of ITCY Statute:

Article 2 – Grave Breaches regime of the Geneva Conventions

Applies only to:

Armed conflicts of an international character

Offenses committed against persons or property regarded as “protected”

“Protected” = civilians in the hands of a party to a conflict of which they are not nationals

Article 3 – Customary International Law that compromises ‘laws or customs of war”

Acts committed within the context of an armed conflict (international or not)

Acts have a close connection to the armed conflict

Acts are committed against persons taking no active mart in hostilities

Article 5 – Crimes Against Humanity (Customary Law)

Must occur in context of an armed conflict, whether international or non-international in character

Prosecution must prove:

Armed Conflict

Acts occurred within the context of that conflict

Acts committed against protected persons

Holding: guilty, except for Article 2

Majority: Article 3 & 5

Armed Conflict existed at all times in relation to offenses

Victims were members of protected group

Offenses charged committed within context of Armed Conflict:

Actions part of ethnic cleansing goal

Prisoner policy determined by  Republika authority

Dissent: Article 2 applies

“at all times relevant to the indictment, the armed conflict in opstina Prijedor was international in character and the victims of the accused were persons protected by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War” → find guilty of Grave Breach

The Federal Republic of Yugoslavia (Serbia and Montenegro) “effectively controlled” the VRS

Final Holding: Guilty on Articles 2, 3, and 5

Crux: What kind of conflict was it?

Dissent: International armed conflict since Bosnian-Serbs surrogate for Serbian army

Majority: only domestic law can be applied since within own country

Policy on International Necessity: limit inter-state conflicts so large conflict doesn’t result

Yet most post-WWII conflicts have been internal Sovereign state issues

Test: Does Yugoslav Army still have effective control of new Bosnian-Serb Army?

Appellate Decision Dissent:

Evidence supports that the Yugoslav Army had effective control of the military group → Yugoslavia vs. Bosnia becomes Bosnia-Serbs vs. Bosnia

Yugoslav army supplied, paid, communicated with, and essentially continued there presence in the region, just under a different name

Advocated Test: Dependency and Control

Individual Criminal Responsibility

Culpability Requirements:

Planning

Prepping

Executing Actions

ICTY Article 7 Requirements: Planned Instigated, Ordered, Committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime… shall be individually responsible

Look to Neurembeg & Tokyo: Knowing Standard

Principal

Accessory or aided/abetted

Consenting part

Connected w/ plans

Member of organization or group connected (not adopted by ICTY)

Academics

Meron: Todic advanced law, interest in Humanitarian Law, put War Crimes into IL scene

Drumbl: less optimistic than Meron

Victor’s Justice

International Criminal Law a collective problem, not an individual problem

Individual responsibility not appropriate

Some justice or all justice?

International criminal tribunals may allow attention to be deflected from the deeper causes of the conflict

Discussion

Truth and Reconciliation Commissions: confessions in exchange for amnesty

Universal Jurisdiction: invoked to deal with alleged perpetrators of mass atrocities

Victim Nationality/Location of the crime supposed to be irrelevant (i.e. torture)

Difficult to enforce (i.e. Pinochet)

Application of International Law In General

Application of IL in International Plane:

Generally:

Diplomatic Arena → foreign office to foreign office

Parliamentary-Diplomatic → through recourse to formal conferences

Parliamentary Arena → legislative/quasi-legislative assemblies

Executive Arena → secretariats of International Organization

Measures of  Self Help

Academics

Chen

Diplomatic negotiations (bi-lateral) generally the accepted method of solving differences

Third Party Procedures exist when bilateral deadlock:

Good offices, Mediation, and Conciliation; Pre-emptive regulations; judicial processes

Limit – Consent of both parties (ICJ)

UN obligation: peaceful resolution

Once reaches security counsel (Peace Threat) level, 3rd party solutions have generally failed

SELF HELP → Unilateral coercive measures

Requirements:

Necessity → all good faith efforts to solve peacefully failed

Proportionality → appraise by all relevant factors

Last Resort

Current Trend in International Legal Norms: prevention rather than correction (treaties, intergovernmental organizations)

Parton: ICJ

Peaceful settlement

Progressive development of IL

Jurisdiction

Contencious (State vs. State)

Meant to be binding, but no enforcement

All parties to UN Charter party to Statute of ICJ automatically

Party to ICJ not enough → counties must consent to ICJ jurisdiction

Article 36: ¶1 → Both parties refer case to ICJ

Ratifying treaty that directs dispute to ICJ (subject to Reservations) -? Considered consent

¶2 → states regard ICK as compulsory in certain situations ➔ noth countries have made declation opening themselves to jurisdiction

Option Clause → agreements to compulsory jurisdiction

U.S. → interpretation of Treaty of IL, existence of potentially significant Fact, nature/extent of reparation

Reservations → agreements with other countires to settle issues via tribunals, disputes determined by U.S. to be within domestric jurisdiction of U.S., disputes over multi-lateral treaties unless all are party to or U.S. consents

¶5 → Declaration of compulsory jurisdiction of ICJ predeseccor that have not been revoked

States acquiece to case (Reply to complaint w/o contesting jurisdiction)

“Forum Proragatorum”

Advisory → respond to legal questions from authorized UN agencies (not binding, but usually authoritative)

Many different international courts

Problem: no hierarchy for these courts

No precedent/stare decisis requirement

People’s tribunals where NGO’s and Individuals putting together non-judicial tribunals giving press to issues

Application of IL on the National Plane

Generally:

Issue = how do states rationalize interaction between International Law and Domestic Law

Monism → IL and DL part of same legal system. Within that legal system IL is hierarchically superior

Dualism → IL and DL separate systems, IL only part of DL if codified by national structure’s municipal law authority

Academics

Starke: defines monisim and dualism

Brownlie

Dualist: IL and DL regulate different subject matter

Neither legal order has the power to create or alter rules in the other

When DL provides that IL applies in whole or in part, merely an exercise of authority of DL

Monism:

Lauterpachy – supremacy of IL even within the DL, coupled with well-developed views on the individual as a subject of IL

Antipathetic to the legal corollaries of existence of sovereign states

Reduces DL to status of pensioner of IL

IL best available moderator of human affairs

Logical condition of the legal existence of states and therefore of DL within the sphere of legal competence of the states

Borchard: IL enforced through domestic practice

IL enforced via restitution and damages if inconsistent with domestic law

Executive/Legislature responsible for application of IL

McDougal – New Haven Approach – IL as a process, not a set of rules

IL Problem: “reciprocal impact or interaction, in the world of operations as well ass of words, of interpenetrating processes of international and national authority”

Effective power is the factor which actually shapes authoritative decisions

Individuals, private associations, parties, and pressure groups have authority

Little respect for state boundaries

Interrelation between IL and DL in practice:

Monist approach: Germany

IL takes precedent over DL

Strict Monism → also encourages German action in creating IL

Civil Systems tend to be more monist

Problem: prevents equitable remedies in some situations

Local action can be more fair based and flexible

Dualist approach: Australia

IL not effective unless codified by domestic law

Strict Dualist → Common Law tradition

Yet Mabo v. Queensland gives IL an influence

Teoh: Ratification of IL creates expectation that executive will act in accordance with convention

Limit: not legislatively enacted

Response: legislature codified requirement of codification of IL to be applicable

Solidifies sovereignty

Mixed Dualist-Monist Approach: The United States

Generally: treaties supreme law of land yet subject to Constitution and Subsequent Federal Statutes

Pact sunt servanda → good faith duty to comply with treaty obligations

Pro: establishes expectations

Con: limits sovereignty

Charming Betsy Presumption: where possible, U.S. courts to read IL as close to DL as possible

Anti-democratic? → criticism of sovereignty trumping

The Impact of International Agreements upon U.S. law

Weston – “Treaties”

Treaty – usually denotes only those international agreements that are concluded by the federal government and ratified by the President upon receiving the advice and consent of the Senate (2/3 Majority)

RUDs contingencies → president can/may decline to Ratify a treaty

(ii)    President able to suspend/terminate treaties w/o Senate

Reid v. Covert – treaties may not controvene any constitutional prohibitions like Bill of Rights and 13th, 14th, & 15th Amendments

Treaty binds courts when self-executing or codified

Self-executing → U.S. concept, require no legislation to be operative in the United States

Weston – “Executive Agreements”

Types:

Treaty Based – same validity and effect as the treaty itself

(ii)    Congressional Executive Agreement – based on either a prior or a subsequent act of Congress authorizing the making of the agreement or providing general authority for the executive action needed internationally to implement the legislation in question

(iii)   Solo – entered into exclusively on the basis of the President’s constitutional powers as chief executive and commander-in-chief

Issues:

Can congress legislate to prohibit or otherwise limit sole executive agreements

(ii)    Whether president alone may make an agreement inconsistent with an act of Congress, or alternatively, whether a sole executive agreement may supersede earlier inconsistent congressional legislation – prevailing view = solo executive agreements inoperative as law to the extent they conflict with a prior act of congress in an area of congressional competence

Customary IL before U.S. Courts

The Paquete Habana, The Lola

Facts: U.S. took fishing vessel as spoil of war

Issue: with no treaty/federal stance, can IL govern?

Holding: Ancient uses of civilized nations used (customary law), fishing vessels traditionally exempt from prizes of war

Garcia-Mir v. Meese (11th Cir. 1986)

Facts: refugees detained under authority of Secretary of State

Background: Castro let Cubans out → 124,000 undocumented migrants got out, 23k had criminal records (though some for politics)

(ii)    Two Groups: 1 never given parole; 1 given parole but subsequently revoked

Plaintiff’s Claim: Executive Act from Secretary of State not sanctioned by President himself therefore against Paquete Habana

Issue: whether an affirmative legislative grant of authority to detain has been granted

No affirmative grant to justice department to detain without headings since applicable statute did not expressly authorize indefinite detention

Court: Look to Executive Act(s)

Holding: Constitution provides president with ability to delegate his authority to executive departments to act on his behalf

Group 1 → specific congressional authority granting authority to detain

(ii)    Group 2 → Executive Act (Secretary of State) deemed sufficient to find IL not controlling

Distinguish between Paquete Havana: executive actors complied with IL but lower officials ignored, versus unilateral act by executive

Theme: DL and IL conflicts create problems

 

PROBLEMS OF INTERNATIONAL LAW AND WORLD ORDER: ambiguousness of answers to current problems is a result of the worldwide controversy created by unprecedented peril of our time; universal solutions have yet to be found

 

Problems of Conflict Prevention – Main Issue: the legality of outside intervention in “internal” conflict and the role of the United Nations and regional organizations in reacting to such conflict

Recognition of States and Governments

Frowein – “Recognition”

Recognition of States

Typical Requirements

Permanent Population

Defined Territory

A Government

Capacity to enter into relations with other states

Modern Requirements: effectiveness of the separation of forcible separation from a mother-country

Requires independence in relation to some State which for political reasons wants to use the new State which it has helped come into existence

Must not gain independence brought about by a white minority government in a former colonial territory (Rhodesia)

Modes of Recognition:

RULE: only unequivocal act that forms full recognition is establishment of full diplomatic relations

De facto (implied): implies hesitation on party of recognizing government either as to the coming into existence of the new state or its territorial situation

De jure (express)

Legal Consequences

RULE: Recognition does not create a state. It only confirms that an entity has reached statehood.

Anzilotti & Kelsen → constructive meaning based on legal consequences of a specific factual situation

Lauterpachy → recognition constitutively settles dispute of statehood

Impact of UN on Recognition of States

UN membership weight cannot be denied

UN a forum to coordinate non-recognition

Recognition of Governments

RULE: There must be a special reason to question recognition of a new government

Requirements:

Control → “effective control” not brought about by foreign intervention (if revolutionary government, only legally recognizable if conflict outcome clear and former government’s authority reduced to negligible area)

Consent or Acquiescence of People

Comply w/ International Obligations (does not have to create new obligations/relations) → simply “diplomatic recognition”

Modes: more likely recognition is implied → i.e. continuation of diplomatic relations

Legal Consequences: Upon recognition, cannot question right to represent the state

Evaluation: Abuse possible if recognition based on ideological and political motives

Tinoco Case arbitration decision by Chief Justice Taft

Rule: non-recognition by other nations usually appropriate evidence of in deciding status of govt. but other evidence must be taken into account too – are there any objections or power disputes to the status of that govt internally?

Exception: Recognition vel non determined by illegitimacy of origin, not de facto sovereignty

Requirement: Government established in such a way that all within its influence recognize its control and no opposing government assuming to be a government in its place.  Note: Principle of the Continuity of States – state bound by obligations entered into by govt that has ceased to exist.

Notes:

Effective Control: accepted as guide to recognition of governments

Tobar Doctrine: Governments that come into power w/o benefit of elections or by extra-constitutional means should not be recognized

Estrada Doctrine: change of government an internal matter for each state, foreign states should ignore revolutions and keep their diplomatic missions accredited to whoever may effectively operate the government at any given moment

Trend: abandon recognition → “establishment of relations does not involve approval or disapproval but merely demonstrates a willingness to conduct affairs with another government directly”

UN → has changed from accrediting Effective Control Regimes to a Democratic Requirement

Civil War

Three Levels of Crisis

Rebellion – challenging faction seems capable of rapid suppression by normal internal security procedures

Implications

External help to the “rebels” illegal

Foreign assistance to incumbent government legal

Insurgency – more sustained and substantial intrastate violence than “rebellion”, less sustained and substantial intrastate violence than “belligerence”

Implications

Permits outside states to participate in the internal conflict without finding themselves “at war”

“Insurgency” classification often used to protect the economic and private interests of nationals and to acknowledge political facts arising from particular successes of insurgents

Belligerency – essentially the same as a war between independent sovereign states, giving rise to definite rights and obligations under IL

Implications

Outside state has formal option of joining one of the “belligerents” against the other(s) or to remain strictly neutral

Compatible with UN system’s fundamental commitment to peaceful conflict resolution?

Requirements (Lauterpacht)

Armed conflict of a general character (not purely local) within the State

Insurgents must occupy and administer a substantial portion of national territory

Insurgents must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority

There must exist circumstances which make it necessary for outside States to define their attitude by means of recognition of belligerency

Academics

Cassese “IL in a Divided World”

States prefer classification as NOT International Conflict

Existence of tribunal feuds or other forms of conflict in many 3rd world states, particularly in Africa, where the arbitrary borders decided upon by colonial powers are likely to lead to secession

The growing tendency of Great Powers to replace direct confrontation with war by proxy, through support for “loyal” or “friendly” political and military groups in small or middle-sized countries

States view of Insurgents

Currently: rudimentary

Theory: If all members of the international community were to decide that a certain insurrectional party is devoid of the requisite conditions, that party would not acquire any international status

Reality:

There will always be one or more States inclined to recognize certain rebels

Even other states may at a certain point find it useful to concede that a group of insurgents has become a legally independent subject 95

Duty bound to refrain from supplying assistance to rebels

International regulation looks on insurgents with disfavor

International regulation grants incumbent Government right to enlist foreign help for wiping out rebels

Only very few rules address themselves equally to rebels and to States

The Point:

Insurgents state-like, BUT

Transient and have limited international capacity in two respects:

Only a few international rights and duties

Only “associated” to a limited number of existing states

IL Regulations of fighting between incumbent governments and rebels

RULE: rebels are not granted the status of lawful belligerents → remain criminals infringing upon domestic penal law

Effect: recognition of belligerency obsolete → rebels in a greatly inferior position in relation to central authorities they fight

Effects of Recognition:

Enabled to enter into international agreements and send/receive diplomatic missions

Duty-bound to respect foreigners living in the areas under their control

Right to demand respect for certain international humanitarian rules on armed conflict

Obligation to abide by humanitarian rules

Rules mostly aim at protecting non-combatants only

Methods of combat not regulated (except for sparing civilians aim)

In practice, almost no restraints on armed engagements of Governments and rebels

Customary Law (Result of Spanish Civil War ruinous effects)

Customary Rules of Armed Conflict:

Ban on deliberate bombing of civilians

Prohibition on attacking non-military objectives

Precautions must be taken when attacking military objects

Rule authorizing Reprisals against enemy civilians and consequently submitting them to the general conditions exacted for reprisals

Required Characteristics of insurgents:

Organized administration effectively controlling a portion of the territory of the State

Organized armed forces capable of abiding by IL

Reality → governments and rebels rarely protect non-combatants

Possible explanations:

Civilians often take sides in domestic strife and actually contribute, at various levels, to the struggle

In many states (chiefly Africa) the population is split into conflicting ethnic and cultural groups which consequently do not share the feeling of belonging to one and the same country

Charlesworth

Theme: Women disproportionately affected by armed conflict


Human Rights Abuses

Problem: Women as needers of protection

Language: protection rather than prohibition of the violence

Rape not included in category of grave breaches of international humanitarian law

Progress: ad hoc tribunals and ICC

Limit: engages sexual violence only when aspect of the destruction of the community

Problems:

Distinction between state/nonstate actors

Focus only on sexual violence

Obscures protection of economic, social, and cultural rights of women

Economic sanctions significantly impact women and girls

Internal Conflict

Theme: legal protection to combatants (men) and ignores civilians (women)

Individual Accountability

Take Away: tremendous advancement, but running criticism

Statutory Sources

Geneva Convention

Common Article 3

2nd Additional Protocol

Unilateral Intervention

Higgins

Definitions

“Intervention” = impermissible use of force

“Aggression” = military use of force and unlawful military use of force

Practice: neutrality not realized

Reasons to support existing government

Argue that what is going on in the country concerned is at the moment mere insurgency, mere rebellion → neutrality not required

Must keep in mind contemporary doctrine of self-determination

Arms may continue to be sold to the lawful government provided that the belligerency has not been recognized

Notes:

Intervention at Request or with Consent of Legitimate Government (Brownlie)

Consent Request vs. Self-determination of People

Consent Request → legality confirmed by subsequent practice of UN members giving consent or acting in response to such a request/consent

Self-Determination → external assistance of rebellion may be lawful provided the rebellion is in pursuit of the exercise of the right of self-determination

Authority to request can be questionable

Government set by IL as “effectiveness”

Intervention Grounded on Right Conferred by Treaty

Concerns:

What government represents treaty?

Conflict between IL duty of non-intervention and assisting thru treaty

Treaties a result of unequal relationship?

Humanitarian Reasons (i.e. Kosovo)

Nicaragua v. U.S.

Sources of non-intervention

sovereignty → respect for political integrity

Opinio juris → non-intervention backed by established substantial pratice

ICJ → unilateral intervention tool of the powerful that limits international justice

Holding: regardless of fact, unilateral intervention violates IL

Kosovo (Henkin)

Theme: collective yet non-multilateral action appropriate when human rights violated and Security Council politics cause inaction

Henkin’s View: illegal

Not because of human rights

Rather, justification for humanitarian intervention is often ambiguous

Uncertainties of fact and motive

Difficult questions of degree and “balancing” of needs and costs

No individual state can be trusted with authority to judge and determine wisely

Solution: multilateral intervention

Precedent: Iraq and Somalia

Not justified as “humanitarian”

Internal war that threatened international peace and security

Within jurisdiction and responsibility of Security Council

Kosovo

Threatened International Peace without Security Council action

Multilateral intervention without Security Council authorization is still viewed as unilateral

NATO action → “collective” humanitarian intervention “in common interest,” carrying out the responsibility of the world community to address threats to international peace and security resulting from genocide and other crimes against humanity

Effective ratification by Security Council through approval of settlement

Security Council

Strengths: ability to use force “in the common interest”

Weakness: current structure/procedures render Council seriously defective and may be unavailable to protect common interest

New Practice in Kosovo

States/Collectives will act and challenge the Council to terminate the action → permanent member in favor of the intervention could frustrate a termination resolution

Problem: Responsible action often not practical through Security Council

Solution: “gentlemen’s agreement” among permanent members, or by self-restraint and acquiescence

Elshtain

Views

Realists: POWER

Just War Thinkers: recognize good and bad in people

Doing bad usually reaffirming basic good

Cultures innately good but at war with eachother

Differences

Power Calculations/National Interests VS

Mix of power/pathos

Just war

Total War VS

Calculated Just War

Wheeler

RULE: where there is only one case of past practice in support of a new rule, states can easily nullify it by acting against it in future instances

Kosovo-like practices needs repetition to reach opinio juris support

Unilateral Intervention

Still illegal because of ambiguity

Unlikely permanent members of Security Council will become a humanitarian ‘coalition of the willing’ in future cases of gross human rights abuses (Russia/China)

Limited Cases Justified → exceptional cases

Problem: license for powerful to impose their values on the weak

Bowett

Humanitarian Intervention more likely to:

Rescue nationals or permanent residents of the territorial state

Aliens have greater protection

Article 51 → allows self-defense where nationals require protection

Extends to property of nationals

UN Intervention

Blackletter Law

Article 2 → requires peaceful solution of problems

Article 4 → prevents threats etc to any sovereign state

No absolute ban on use of force

Only undisputed legal exceptions to use of force:

Article 51 → allows states self-defense if victim of an armed attack

Chapter 7 → allows security council to authorize force to enforce charter, must be explicit

Franck

Charter Law Pertaining to States’ Autonomous Use of Force

Failed because of following assumptions:

Security Council expected to make speedy and objective decisions as to when collective measures were necessary

States would enter into arrangements necessary to give an effective policing capability

Optimism:

Negotiations

Never took place

Result: system adapted through:

Uncoupled Article 43 from Article 42

Broadened authority of states to act in self-defense under Article 51

Collective Force Without Article 43

Korean War first example

Council authorized unified military command headed by U.S.

“Coalition of the Willing”

No such provision exists in Charter → Council got creative in finding legal use of collective force

The Viability of Article 51

Attempted to fix flaws by authorizing self-defense until Article 43 help arrives

Failed:

Article 43 forces were not forthcoming

Conventional armed attacks envisioned never occurred

Threats:

Subversive Warfare

Weapon Capabilities

Trend for Human Rights overcoming Sovereignty

Self Defense Against Anticipated and Indirect Aggression

Definition: inherent right of self-defense only exercised “if an armed attack occurs against a member state”

Wait until fired upon

Dramatically changed with advent of nuclear weapons and ICBMs

Problem: anticipatory self-defense may be necessary considering weapons capabilities

ICJ – ambiguous

Prohibition of unilateral attack would be nullified if each state free to determine itself whether a perceived danger of attack warrants anticipatory action

Yet, law that seeks to prohibit a state from protecting its very survival until the threat to it has eventuated is irrational and ineffectual

Ultimate Question: in a particular instance, does extreme necessity exist so as to justify a military action?

Humanitarian Intervention Issue

Not all violations of Article 51 are precisely the same

UN approaches on case-by-case basis

Possible Solutions

UN tolerates, ultimately cooperates with, or commends military action by states when action taken to avert a demonstrable catastrophe

Consent/Acquiescence when “good”

Take Away: it is possible to conclude that the use of force by a state or regional or mutual-defense system is likely to be tolerated if:

There is credible evidence that such first-use was justified by:

The severe impact of another state’s indirect aggression; OR

By clear evidence of an impending, planned, and decisive attach by a state; OR

By an egregious and potentially calamitous violation of humanitarian law by a government against its own population or part of it

Stedman

Normative View: UN needs to change by acknowledging

The limitations imposed by civil war

What can be realistically accomplished by outside forces in violent internal conflict

The limitations imposed by its own organizational makeup and procedures

UN Function

Pre-1989 → Peacekeepers, Observed strict neutrality

1989 → started elements of “peacebuilding” in Africa

Getting an Agreement in Civil War

Theme: create favorable alternatives at the negotiating table and lessen the desirability of alternatives away from the table for the antagonists

Methods to overcome disunity:

Define a structure for decision making, with clearly delineated responsibilities and powers

Create a coherent strategy

If the Choice is to pursue a negotiated settlement, then a mediator must be informed by his or her superiors as to what terms are acceptable beforehand

A negotiated settlement demands a workable solution

Identify leverage and link it to the strategic goal

Plan for failure

Negotiations vs. War Crimes

Theme: don’t threaten with war crimes if trying to achieve goal of peace. Only use war crimes where a party reneges on negotiated agreement

War Crimes only make sense when international community judges the war to be total and that the offending party must be defeated

War crimes only appropriate when international community has judged a negotiated settlement with the present leadership as impossible

Falk

Developments accounting for intensity of debate of humanitarian intervention:

Response stimulated by the developments

Statist Response → Commission Reports and Perspectives of Eminent Persons

Con: Precedent for Recourse to war outside scope of self-defense AND w/o UN approval

Pro: Moral/political desirability to act effectively in face of Humanitarian emergency

Independent Commission on Kosovo (Sweden) → Kosovo War legitimate although illegal

Options:

Leave decision to intervene with Coalition of the Willing

Prematurely abandons Charter

Suspend Security Council Veto

Not politically accepted currently (ideological/humanitarian/sovereignty differences

Critical Argument: regardless of legitimacy, international response won’t occur unless political will

Strategic motive makes more likely an effective intervention (incentives)

Canadian Commission on Intervention and State Sovereignty

Circumvent fears of colonialism by replacing “responsibility” language with “rights”

Shortcomings: does not account for geopolitical dominance

Doubters: Civil Society Perspectives

“Collective Daydream” = post-colonial imperialism

Falk → proceed forward with both perspectives in mind

Teson –

3 Types of Collective Humanitarian Intervention

Soft – discussion, examination, and recommendation of action

Reasons:

International Effects Test

Human Rights Violations

Hard – Coercive w/o force (mostly Economics)

Forcible and Use of Force

“Prohibited Intervention” → action aimed at influencing government over issue target state has legal discretion

Human Rights: No longer within domestic sphere → use soft intervention

Form of Government

International Law → origin of government not of outsider’s concern

Problems:

International Framework requires International Community to recognize nation state when government REPRESENTS state

Democracy is the only way of showing People’s REPRESENTATION

Democratic rule REQUIRED for enjoying human rights

Democracies are inherently more peaceful (Kant)

Build in mechanisms to avoid war

Collective Humanitarian Intervention

Anti-interventionalists – armed intervention strictly prohibited

Only permissible with Security Council action

Teson’s Argument – war as last resort for extreme circumstances

Mwagiru: Cold War Paradigm Shift → “New gloss on old design”

Argument: Old UN constructs state-centered and therefore outdated, need to increase UN’s ability to negotiate, not act forcibly

Somalia: Operation “Restore Hope” not humanitarian intervention since relied on UN

Security Council characterized Somalia as a threat to International Peace and Security

Argument: This classification shows the outdatedness of the UN Charter; Change UN to more effectively address modern problems (non-state entities)

Negotiation is UN’s best resource

Orford

Robertson → 3rd Age of Human Rights = Enforcement as a rule of law

NGO support of Humanitarian Intervention i.e. East Timor

Tony Blair → principle of mutual self-interest and moral purpose define foreign policy decisions

IL Features of Interest

“Revolutionary” classification of claim that a right or duty of humanitarian intervention

International effects of humanitarian intervention

Fear of colonialism → uncivilized people unable to govern themselves

Falk → rejects legitimacy of collective humanitarian intervention but admits to a fear that advocating non-intervention may equal advocating inaction

Argument: strike a balance yet ensure “humanitarian intervention” = more than state-based capitalist and militarist world order

Criticism: IL/News only responds to CRISIS

Arguments:

For Unilateral Intervention (Henkin): System does not work, UNSC dysfunctional, Politics, morally justified, collectively good

Need to make sure people are protected

Against Unilateral Intervention (Wheeler, Elshtain): who defines “humanitarian” (ambiguous), balancing of interests and rights, means (protecting soldier’s lives not civilians), sustainability, undermines IL system

Need restraint for unlawful unilateral use of force

Professor B: we look at this dilemma only in moments of crisis

Need to take a longer view for judging use of intervention in armed conflict

Dangers: grim colonial history, International System still fails to protect people

Language

Moore – “intervention” used in at least 4 different senses

Synonym for transnational interaction or influence

Statement that a particular transnational interaction violates community expectations about permissible international conduct

Personal policy judgment that a particular transnational interaction is wrong, and

Specialized sense as a definition of a problem for study

McDougal: intervention “refers with indiscriminate abandon to the facts to which decision-makers are responding, to the policies invoked before decision-makers, and to the particular responses of decision-makers which are sought to be predicated or justified

Multilateralism

Problem: smokescreen for unilateral intervention?

Creates difficulty for U.S. foreign policy goals

Intervention as Helping Self-Determination

Ronzitti – armed struggles by indigenous peoples against colonial rule, racist regimes, and governments which, even if not colonial or racist, are nonetheless unrepresentative or subordinating of certain clearly identifiable national constituencies

Reisman – “human dignity” test

Charney – Three conditions for self-determination outside colonial context

Bona fide exhaustion of peaceful methods of resolving the dispute between the government and the minority group claiming an unjust denial of self-determination

Evidence that the persons asserting the self-determination claim represent the will of the majority of the group

And a resort to force taken only as a means of last resort

Unilateral Humanitarian Intervention

Bronlie – a rule allowing unilateral humanitarian intervention is a general license to vigilantes and opportunists to resort to hegemonical intervention

Henkin – a humanitarian reason for military intervention is easy to fabricate. Every case of intervention has been justified on some kind of humanitarian ground

Cold War

U.S. exclusively preoccupied with helping anti-left political forces regardless of their credentials as democrats and refused to challenge rightist modes of oppression, however severe

Intervention for Democracy

Teson – valid basis for intervention

Collective Humanitarian Intervention

Falk, Mwagiru, Orford → skeptical about the legitimacy and moral objectives of collective humanitarian intervention

Teson → intervene to uphold basic human rights

Mwagiru → use negotiation to combat failures of UN

Mercenaries

UN framework did not account for guns for hire

Problem: accountability

Definition:

recruited locally or abroad to fight in conflict

desire to fight motivated by material gain(more than state’s armed forces)

Not citizen of state attacking

Violates UN Charter → do not receive combatant status under Geneva Convention

U.S. Jurisdiction

Pro: taking accountability

Con: actions take place in combat, Iraqis (not Americans) suffer the related harm

IRAQ

Sovereignty vs. Suffering

Evolving Definition of Sovereignty

Claim to Territory

International Action

Power vis-à-vis its citizens

Represents “will of the people”

Evolution: progressive concept that becomes misused

Exclusivity of Monarch to Narrowing of Soveriengty

Views:

Holocaust

Decolonization → factors transcending borders

Limiting → helps advocate Human Rights

Bathist Party Use of Sovereignty → sovereignty prevents intervention based on Human Rights violations

US Sanctions severely limiting Iraqi sovereignty

Limited ability to provide basic needs

No responsbilitiy to provide basic needs

KEY QUESTION: Human Rights Violations OR No Basic Needs Met?

Do the Human Rights violations warrant the sanctions/force used to limit Iraq’s sovereignty?

Central Paradox = Rhetorical Convergence → invasion of Kuwait caused limit on sovereignty, yet large amount of justification based on Human Rights violations

Taft/Buckwold → 2003 invasion extension of first gulf war

Resolution 678 extended by Resolution 1441

Did not require Security Council recognition of violation of Cease Fire Agreement

Same reasoning legally for periodic strikes (i.e. Desert Fox)

Criticism: Limits UN’s purpose overall

Franck → Critical of Taft

No imminence

Kuwait was purpose of Use of Force resolutions

De minimus arguments are fact specific to Iraqi occupation of Kuwait

Relates back to problem of Rhetorical Convergence

Who decides UN violations?

Resolution 1441 creates security council recognition of violation, not unilateral

Criticism: Resolution needed to recognize breach, subject to veto regardless of objective factual breach

Role of Lawyer: don’t take sides, work on legal framework to design rules needed to move forward

General assessment of Legality

War was illegal, not within 2 exceptions to use of force