International Law Subjects
1)
States:
a. Assumption that if a state exists it is valid. It is not allowed to question the legitimacy of a state.
b. Does the state deserve to be held in such a high position? Can you ask if a state speaks for its people?
c. Concept of Nation-State: The State was assumed to be its people. The assumption is that states and people are the same.
d. Monopoly of creation of laws: treaties & customs
e. Hegemonic powers of a few: small club Europe & North America.
Recognition of States
Constitutive theory of recognition: If a claimant to international legal personality was accepted by other existing states then it could be considered as a state Objective criteria for the existence of states: Montevideo Convention: 1) Permanent population 2) Defined territory: 3) Government: exercising control over, at least most of the territory a. Island of Palmas Case: there had to be independence for a state to exercise authority. Independence is the exclusive right to exercise the faculties of a state. 4) Capacity to enter into relations with other states Declaratory theory of recognition: In 1989 the doctrine of recognition of states changed radically. Charter of Paris for a New Europe (1992) European states will not recognize a new state unless it complies with the following: democracy, protection of Human Rights and protection of minorities. In 1999 this shift ended because Germany immediately recognized the state of Croatia even if it did not observe the Paris criteria. Now recognition is essentially a political decision
based on the objective criteria but because these criteria are loose States
may recognize as they see fit. However, they recognize a state when it
exists, when a government is in control over its population. |
Primary sources
·
Treaties
o
Essential elements: (a) parties must be subjects of
international law; (b) they must intend to create binding obligations under
international law; (c) their agreement must be governed by international law.
o
Effects of a treaty:
§ It exists within a framework which may be said to be Pacta Sunt Servanda, i.e., a shared expectation that the treaty obligations will be performed.
§
Good faith obligation: Treaties must be performed and
interpreted in good faith (internal law may not be invoked before a Treaty).
o Treaty Interpretation:
o No single golden rule of treaty interpretation
o 3 categories:
§ plain meaning
§ intention of the parties
§ object and purpose of the treaty
o A preference for ordinary meaning if terms in light of the context and the object and purpose.
o Inter-temporary rule: Meaning at the time of conclusion rather than at the contemporary meaning.
o
With respect to the interpretation of peace treaties
the Court adopted a restrictive ordinary meaning method.
o
Reparations case: purposive interpretation of the UN
Charter.
o
An
international agreement creates obligations binding between the parties under international law.
Ordinarily, an agreement between states is a source of law only in the sense that a
private contract may be said to make law for the parties under the domestic law
of contracts. Multilateral agreements open to all states, however, are
increasingly used for general legislation, whether to make new law, as in human
rights (Introduction to Part VII), or for codifying and developing customary
law, as in the Vienna Convention on the Law of Treaties. For the law of
international agreements, see Part III. "International agreement" is
defined in § 301(1). International agreements may contribute to customary law.
o
Binding
resolutions of international organizations. Some international agreements that are
constitutions or charters of international organizations confer power on those
organizations to impose binding obligations on their members by resolution,
usually by qualified majorities. Such obligations derive their authority from
the international agreement constituting the organization, and resolutions so
adopted by the organization can be seen as "secondary sources" of international law for
its members. For example, the International Monetary Fund may prescribe rules
concerning maintenance or change of exchange rates or depreciation of
currencies. See § 821. The International Civil Aviation Organization may set
binding standards for navigation or qualifications for flight crews in aviation
over the high seas.
o
The
United Nations Charter. The Charter of the United Nations has been adhered to by
virtually all states. Even the few remaining non-member states have acquiesced
in the principles it established. The Charter provisions prohibiting the use of
force have become rules of international
law binding on all states.
o
Article
103 of the Charter provides:
In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail. Members seem to have read this
article as barring them from making agreements inconsistent with the Charter,
and have refrained from making such agreements.
o International agreements codifying or contributing to customary law. International agreements constitute practice of states and as such can contribute to the growth of customary law under Subsection (2). See North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark & Netherlands), [1969] I.C.J. Rep. 3, 28-29, 37-43. Some multilateral agreements may come to be law for non-parties that do not actively dissent. That may be the effect where a multilateral agreement is designed for adherence by states generally, is widely accepted, and is not rejected by a significant number of important states. A wide network of similar bilateral arrangements on a subject may constitute practice and also result in customary law. If an international agreement is declaratory of, or contributes to, customary law, its termination by the parties does not of itself affect the continuing force of those rules as international law. However, the widespread repudiation of the obligations of an international agreement may be seen as state practice adverse to the continuing force of the obligations.
o Conflict between international agreement and customary law. Customary law and law made by international agreement have equal authority as international law. Unless the parties evince a contrary intention, a rule established by agreement supersedes for them a prior inconsistent rule of customary international law. However, an agreement will not supersede a prior rule of customary law that is a peremptory norm of international law; and an agreement will not supersede customary law if the agreement is invalid because it violates such a peremptory norm. A new rule of customary law will supersede inconsistent obligations created by earlier agreement if the parties so intend and the intention is clearly manifested. Thus, the United States and many other states party to the 1958 Law of the Sea Conventions accept that some of the provisions of those conventions have been superseded by supervening customary law.
o Peremptory norms of international law (jus cogens). Some rules of international law are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law having the same character. It is generally accepted that the principles of the United Nations Charter prohibiting the use of force have the character of jus cogens.
·
Customs:
o Practice as customary law. "Practice of states," Subsection (2), includes diplomatic acts and instructions as well as public measures and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states, for example in organizations such as the Organization for Economic Cooperation and Development (OECD). Inaction may constitute state practice, as when a state acquiesces in acts of another state that affect its legal rights. The practice necessary to create customary law may be of comparatively short duration, but under Subsection (2) it must be "general and consistent." A practice can be general even if it is not universally followed; there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity. Failure of a significant number of important states to adopt a practice can prevent a principle from becoming general customary law though it might become "particular customary law" for the participating states. A principle of customary law is not binding on a state that declares its dissent from the principle during its development.
o Opinio juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions.
o
Treaty and custom operate in parallel (Nicaragua
case). Treaty law does not fully displace custom. You must always look at
whether there is a customary international rule apart from the Treaty.
o Dissenting views and new states. Although customary law may be built by the acquiescence as well as by the actions of states and become generally binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures. Historically, such dissent and consequent exemption from a principle that became general customary law has been rare. See Reporters' Note 2. As to the possibility of dissent from peremptory norms (jus cogens). A state that enters the international system after a practice has ripened into a rule of international law is bound by that rule.
o General and special custom. The practice of states in a regional or other special grouping may create "regional," "special," or "particular" customary law for those states inter se. It must be shown that the state alleged to be bound has accepted or acquiesced in the custom as a matter of legal obligation, "not merely for reasons of political expediency." Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep. 266, 277. Such special customary law may be seen as essentially the result of tacit agreement among the parties.
·
General Principles
o A principle must be recognized in substance by all the main systems of law. By applying it the judge would not be doing violence to the fundamental concepts of any of those systems. A principle of law is a general one, it was felt, "if it is being applied by the most representative systems of municipal law. What is usually required is that the principle pervades the municipal law of nations in general.
Subsidiary sources
· Precedents (in practice primary)
· Doctrine (writings of publicists)
CAUSES OF
INTERNATIONAL CONFLICTS
The world is a crazy place, and it seems to get crazier by the moment. If Islamic extremists are not attacking the US, the US is attacking Irak, Palestinians and Israelis are killing each other or Protestants are blowing up Catholics.
Many of these conflicts are well known and some others are less so. At any one point more than 33% of the world is usually engaged in conflict.
Not only is the world getting crazier but it is also getting smaller. So the need to understand it is ever increasing. E.g., a few years ago, Thailand made some economic mistakes, which affected the entire Southeast Asian economy and the whole word. As a result, North Korea became more aggressive towards South Korea. Also, the Sep. 11 attacks had a direct effect on the Arab countries’ economies.
There are 192 countries. And in the half past century almost every one of them has been involved in more than one conflict. Some have had many.
But Middle East, Africa and Asia are the parts of the world where most wars take place.
War and conflict are part of modern life.
US exports of arms $18, Russia, $4.5, France $4. So war is big business.
Why do wars occur?
Most of the armed conflicts today occur within a country’s own borders, whereas in the past most wars were fought between different countries.
Poverty is the major cause about 80% of all major wars today. Most were fought by countries with severe economic problems.
Ethnicity is another factor, but not as big as you may believe. It is when ethnicity is tied to poverty that war often results.
Fewer than 20% are ethnically homogenous.
For the UN, lack of equality and power which many social groups face in the world today. It is this inequality, rather than poverty, that seems to be the critical factor. Regardless whether the inequality is based on ethnicity, religion, national identity or economic class, it tends to be reflected in unequal access to political power.
War to control the resources, oil in Irak.
The 20th century was the bloodiest and most violent of all human history.
WWI caused 30 million and WWII caused 60 million.
Every internationally wrongful act of a State entails its international responsibility
International wrongful act: conduct, act or omission, attributable to a State under IL, which constitutes a breach of international obligation of the State.
International crime: an international wrongful act which results from an international obligation so essential for the protection of fundamental interests of the international community, such as (a) international peace and security, (b) the right of self-determination of peoples, (c) human being, e.g., slavery, genocide, apartheid, and (d) environment, e.g., massive pollution of the atmosphere or of the seas.
It is not definitely settled whether state responsibility is based on risk or fault.
The Jessie, Thomas F. Bayard and Pescawha case (American British Claims Arbitration, 1926) is cited in support of the view that the presence of intention or negligence on the part of the actor is not a condition precedent of state responsibility which arises from the commission of the prohibited act alone.
Under International Law the Canadian government is responsible for the acts of officials at all levels of government, including at the provincial level.
A state is under a general obligation to prevent the use of its territory by persons or groups planning to commit hostile acts against a foreign state. This responsibility is measured by the degree of due diligence.
A state can only be held responsible when acts, omissions, or other wrongful events are attributable to it.
Conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law, provided that organ was acting in that capacity in the case in question (ILC Draft Articles on State Responsibility article 5).
Irrelevance of position of organ in the organization of the State (art. 6)
Attribution to the State of the conduct of entities empowered to exercise elements of government authority (art. 7) and of the conduct of persons acting in fact or on behalf of the State (art. 8).
Espousal of claims
Only States have the authority to claim compensation to another state.
No double compensation but there can be coordination of claims. There is no mechanism for coordination. It is just the good will of the parties.
There is no norm against expropriation. But there must be reasonable compensation against expropriation.
Obligation of states not to create statelessness.
1. General Principles
· Reparation: restitution or damages.
· Satisfaction: compensation for moral or non-material consequences, i.e. an apology.
International Law Commission, Draft Articles on State Responsibility, Part II
[Tentative drafts by the Rapporteur, not formally adopted]
Article 6: 1. (a) discontinuance of act, release and return of persons and objects held through such act, and prevention of continuing effects of such act; and (b) application of remedies provided for in injured state’s internal law; and (c) re-establishment of the situation as it existed before the act; and (d) provision of appropriate guarantees against repetition of the act.
2. “To the extent that it is materially impossible to act in conformity with para 1(c), the injured State may require the State which has committed the internationally wrongful act to pay to it a sum of money corresponding to the value which a re-establishment of the situation as it existed before the breach would bear.”
Article 8: “Subject to ars 11-13, the injured State is entitled, by way of reciprocity, to suspend the performance of its obligations towards the State which as committed an internationally wrongful act, if such obligations correspond to, or are directly connected with, the obligation breached.”
· Still a very fluid and uncertain area.
A person is individually responsible for the commission of a war crime if he or she commits a war crime, aids and abets in the commission of a war crime, is complicit in the commission of genocide, or has command responsibility for individuals or organizations that commit war crimes and if he fails to prevent or punish the commission of war crimes by those individuals or organizations.
The military tribunals in the Nuremberg and Tokyo war crimes trials established substantial precedent relating to the prosecution of suspected war criminals. Building from this precedent, the United Nations Security Council and the Yugoslav Tribunal itself have chosen to create a self-contained set of rules of procedure and evidence for the indictment and prosecution of suspected war criminals.
On the international level, this works pretty much the same. And the ruling class is not surprisingly a small group of states. So, we will see what those norms are.
Until the end of the First World War, resorting to armed force was regarded not as an illegal act but as an acceptable way of settling differences.
Covenant of the League of Nations & Treaty of Paris sought to outlaw war.
United Nations Charter:
So, two basic norms:
Jus ad bellum vs. jus in bello
Jus ad bellum
UN: abstain from use of force, except:
o Chapter VII of the Charter establishes that force may be used for this purpose when the Security Council has determined the existence of a threat to peace, a breach of peace, or an act of aggression; and efforts to address the matter using measures short of force have failed or would be futile. The Charter originally envisaged that states would make their troops and facilities available for Security Council use pursuant to Article 43, essentially creating a standing force; but that arrangement never materialized. Instead, the Security Council delegates its authority to willing states on an ad hoc basis.
Self defense: Individual and Collective
Article 51 of the Charter provides in part: “Nothing in the
present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a member of the United Nations,
until the Security Council has taken measures necessary to maintain
international peace and security.” The use of “inherent” acknowledges that the
Charter does not create a right to self-defense; rather, the right preexists
the Charter and is fundamental to the system of states. But the Charter also
strictly limits self-defense, in that the triggering condition for its exercise
is the occurrence of an armed attack.
This limitation prompted an ongoing debate whether the right
to use force in anticipation of an attack, which existed prior to the Charter, remains
in effect. Some scholars believe Article 51 should be read literally and
therefore the right of anticipatory self-defense has been terminated. Others
believe that Article 51 is an expression of intent not to limit the right of
self-defense under customary international law. States generally have been
reluctant to acknowledge a right of anticipatory self-defense under the
Charter, preferring if necessary to interpret “armed attack” broadly to include
actions incident to launching an attack.
o The right to self-defense applies when an armed attack has not yet taken place but is imminent. Nations need not suffer attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of anticipatory self-defense on the existence of an imminent threat-most often a visible mobilization of armies, navies, and air forces preparing for attack.
National
Security Doctrine (not grounds for use of force)
A novel doctrine articulating a right to take preemptive military action against threats arising from possession or development of weapons of mass destruction and from links to terrorism, “even if uncertainty remains as to the time and place of the enemy’s attack”. The US government claims the right to act militarily against states based on potential threats arising from states’ possession or development of weapons of mass destruction and from links to terrorism. Although the doctrine has been in gestation for over a decade, it was given great impetus by the September 11 terrorist attacks. This is true even though expanding the scope of self-defense was not necessary to legitimize the military operations undertaken in Afghanistan in response to the attacks; these are generally acknowledged to fall under the existing right of self-defense. The Bush administration, however, contends that September 11 demonstrates that threats facing the United States, especially from weapons of mass destruction, have reached a magnitude that demands a far-reaching revision of jus ad bellum.
Jus in bello:
· Distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives.
Enactment of domestic legislation. Prosecute or extradite.
Canadian jurisdiction: tag, victim or perpetrator a Canadian citizen or the person was a citizen of a state that was engaged in an armed conflict against Canada.
Exception to double jeopardy if trial to protect the perpetrator or not conducted independently & impartially.