Public International Law, Professor Blum SPR 2012

UNIT I: THEORETICAL UNDERPINNINGS OF PUBLIC INTERNATIONAL LAW

Historical Approach to International Law International norms used to be guided to by religion. Moral beliefs were rooted in shared

customs, and these were exported through the Crusades, the rise of the Roman Empire and the Christian Church

Natural law was thought to be given by God. Jus gentium is the law of the people, which man decides upon. Later, natural law was thought to be derived not from God but from reason. Jus gentium supplements natural law.

As territories expand, so does commerce and trade. This requires new perspectives and international understandings of consistent trade principles and customary law

Hobbes’ Leviathan introduces the concept of voluntarism which is the idea that sovereign nations can only be bound by international law then they willingly submit to be bound. Once nations submit to be bound however they are not free to change their minds all willy-nilly.

The nation-state begins to take precedence in the late 18th and early 19th centuries Positivism is a doctrine that is a call it what it is kind of doctrine. This theory of

international law is not about morals; it is about formal rules and standards. Around this time, international law becomes like a science. Multi-lateral agreements are

written and signed. Studies are conducted and the field expands. The first international organization comes into existence

New industry and technology breeds competition which leads to WWI and WWII. The League of Nations is created to help prevent these catastrophic wars but without the membership of the United States and Russia, the League is doomed to fail. Of course, WWII losers Italy, Germany, and Japan were not permitted to join.

In the place of the League of Nations, the United Nations comes up. The idea is that we can no longer afford to adhere to the Westphalian system of international law because it means ignoring what a country does within its own borders

In 1948, Eleanor Roosevelt provides the international community with a menu of rights that must be respected. What happens in one country affects us all

o Principles of self-determination. De-colonization. Independence, particularly for African nations. Women’s and minorities’ suffrage movements. Race and gender critiques of international law emerge.

o Feminist jurisprudence argues against the current structure and language of international law

Today multilateral treaties govern everything from human rights to trade to commerce to intellectual property

International law includes bilateral and multilateral treaties, declarations from international organizations, customary law, and international and regional court rulings.

The thought is that sovereignty doesn’t just mean power over a people—it means responsibility to those people. If you fail to meet those responsibilities then someone else will step in and handle it

The Role of Law in International Relations and Politics: Comparative Views Realism. This is a Hobbesian theory that focuses on competition among states. It is

premised on the belief that the foundation of civilization is anarchy. Every state must therefore do what is in its best interest by relying on itself and building alliances. International law will only ever be a reflection of existing power structures

CDR=common but differentiated responsibilities. Everyone has to do something to make the world a better place, but your country must do more (or less) based on its wealth, impact, resources, etc.

Institutionalism. There is an information-gathering program that will allow you to conduct investigations and learn if other countries should be viewed as a threat or suspected. Belief that international law can be useful to build strong regimes. Realists will not trust the veracity of this information

Liberalism. States are influenced by their people, domestic politics, and news as well as by their corporations, executives, and government

Constructivism. There is the belief that the currency of power is that of ideas. Ideas have power and they can affect how we act. International law can be a vehicle to promote and spread powerful ideas throughout the world

Some believe that international law isn’t real law because there is no real enforcement mechanism; there is no legislature to respond to issues; it is a voluntary and consent-based system; and there is no separation of powers because those that create the rules also adjudicate the issues

Overview of the United Nations

UNIT II: THE LAW OF TREATIES

The doctrine of sources tells us how law is created and where it comes from. Article 38 of the ICJ statute is the most authoritative on this point. Sources of international law include treaties, customary international law, general principles of international law, judicial decisions, and scholarly commentary.

Treaties are the most important source of international law. They may be referred to as treaties, conventions, agreements, covenants, charters, statutes, or protocols. The important thing is not the name but the nature of the document. International organizations are created by treaty.

The vast majority of treaties are bilateral treaties. About 2,000 treaties are multilateral and several hundred are open to the entire international community.

Bilateral treaties often govern things like extradition, taxation, and borders.Regional treaties include things like the African Union?Multilateral treaties cut down on the total number of treaties in existence but they also require more negotiation and compromise

Treaties are both contracts and legislation. They only bind those states that are parties.

Treaties can be created for purposes of coordination or collaboration. Treaties of coordination seek to put a section of the international community on the same page i.e. aviation codes. Treaties of collaboration seek to unite the international community to achieve a common goal i.e. an agreement to reduce harmful environmental emissions.

The Vienna Convention on the Law of Treaties (VCLT)This document governs how treaties can be entered, enforced, and dissolved. It is a treaty itself and it entered into force in 1980. The US is not a party to the VCLT but we are a signatory and we generally comply with its provisions. In addition, the VCLT is now customary international law so we are bound anyway.

What is a Treaty?Article 2. “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

Article 2 establishes that treaties can only be (1) formalized between states, (2) must be written documents, (3) are binding international documents and (4) are governed by international law.

Determining whether a document is a treaty is essential to your analysis! If it is not a treaty, it is not governed by the VCLT.

According to the Restatement on Treaties, treaties are NOT essentially commercial or intended to be governed under national law.

Treaties CAN be unilateral (no consideration). Sometimes, unilateral, oral statements can be legally binding, even though they are not treaties. Typically these statements are only binding when they are addressed to a particular audience and show intent that the speaker meant them to be binding.

Agreements intended to be voluntary, rather than legally binding, are not treaties, but they may be political commitments.

These political commitments can have strong support and if they are violated, international law may provide a remedy

Entering and Enforcing TreatiesArticle 18. Once a state signs a treaty, they are bound not to defeat the object and purpose of the treaty.

ALWAYS ask yourself what is the object and purpose of the treaty!Signing a treaty is different from being a party to a treaty. Being a party to the treaty means that the state will comply with all of the treaty’s terms. It is not always clear what the “object and purpose” requirement means.Much of the time ratification of a treaty will also require domestic action, but this will be stipulated by each particular treaty

Article 26. This article contains the principle of pacta sunt servanda--all treaties that are in force are binding upon their parties and are to be performed in good faith.

Article 27. A state cannot rely on internal, domestic law as an excuse as to why they have failed to uphold their international obligations. This will not preclude international liability.

Articles 31 and 32. Interpretative methods for treaties—the ordinary meaning of terms governs unless it would be found to be ambiguous, obscure, absurd, or unreasonable. Only then can legislative histories (travaux preparatories) be consulted for supplementary meaning. Prior agreements and treaties in connection with the treaty and accepted by the other parties to the treaty can be used to help interpret the meaning of a treaty. Subsequent practices and agreements concerning the interpretation of the treaty among the parties can also be consulted. Finally, any relevant rules of international law binding upon the parties can also be consulted.

When the treaty provisions and the VLCT are in conflict, the treaty wins.Treaties are to be interpreted in good faith. Analyze what would make the treaty most effective.The VCLT puts a premium on the text of the treaty above intent. (Intent will be more important for bilateral treaties. It will also be easier to figure out with only two parties involved).When there are multiple versions of the same treaty, the narrowest version will govern i.e. sometimes the treaty may be written in several languages.Look to the text of the treaty as a whole. Are all provisions general or are some very specific?

Article 53. This article defines those international norms that are jus cogens. A treaty in violation of a norm that is jus cogens is invalid. These norms do not derive their power from

international law but rather are so widely accepted as basic rights that no state can contravene. These are peremptory norms deemed to be so fundamental that they are inviolable.

For example, genocide, slavery, racial discrimination, war crimes, unauthorized use of force, and torture are prohibitions that are deemed to be jus cogens.

Article 64. If a new principle emerges as jus cogens, then existing principles in a treaty that are in conflict with that principle are automatically void.

Does humanitarian intervention count as a new norm?

Article 102 of the UN Charter requires that treaties be registered with the UN. If the treaty is not registered, the states are not able to rely on it during ICJ proceedings.

Many multilateral treaties require a minimum number of ratifications before they will come into effect and become binding.

There is a presumption that treaties are not retroactive and that they are territorial.

Can a state un-sign a treaty? The US has tried…

Special Understandings: RUDsReservations

Reservations are unilateral statements made by a state to modify or exclude certain provisions as applied to that state. They are expressions not to be bound by a particular provision and they purport to change the legal effect of the treaty.

Article 19. Reservations are allowed under the VCLT so long as the specific treaty does not prohibit reservations i.e. the Rome Statute to the ICC. The state can make a reservation only when signing, ratifying, accepting, approving, or acceding to a treaty (cannot be made after joining).

Reservations promote the doctrine of voluntarism After a reservation has been tendered, other states have the option to accept the

reservation, denounce it, or do nothing. o If the country accepts the reservation, it will apply reciprocally to the agreeing

parties. The provision will be modified for the state that submits the reservation and for that state’s interactions with all other countries that accept the reservation.

o If the reservation is deemed impermissible because it undermines the purpose of the treaty, then there is no need to accept the reservation or denounce it because it is invalid anyway.

o A state can include in its reservation its intention to be bound by the treaty whether or not the reservation is accepted or it can condition its accession on the reservation’s acceptance.

o When a reservation is made but objected to by another state, or deemed to be an essential provision of the treaty, is the state still a party to the treaty or is acceptance of the treaty conditioned upon the reservation? Can other state choose to ignore the reservation and view the state as a party anyway? Who decides this?

Traditionally, when an impermissible reservation is made, the party is not seen as a party to the treaty (voluntarism—no willingness to be bound). However with respect to human rights treaties, the state will be bound anyway and their reservation will just be ignored.

Understandings and Declarations These do not change the legal effect of the treaty. They merely signal or clarify what a

party believes the meaning of its obligations to be. Either of these statements can be added after joining a treaty.

Effects on Third PartiesRights can be conferred to third parties but obligations cannot be imposed on third states without the states’ consent (Article 34). A treaty that has adverse effects on a third party does not rise to the level of obligations. An obligation is more like an affirmative duty.

Amendments and modifications to a treaty are not allowed to worsen the rights of third parties. (Article 41). This is at a lesser level than that stipulated for above.

Dissolution of TreatiesA treaty may be invalidated due to

error (Article 48), fraud (Article 49), corruption (Article 50), coercion (Article 51), or threat or use of force (Article 52).

o This is limited to physical force only i.e. economic coercion doesn’t count, and neither does use of force authorized by the UN Security Council, or in self-defense.

Article 60. A treaty can be terminated in whole or in part in the event of a material breach. When the treaty is bilateral, the wronged party will decide how to proceed. When the treaty is multilateral, all the parties may agree to terminate, only the party affected by the material breach may choose to terminate, the offending party may be terminated from the treaty, or any other party believing that the breach radically changes the positions of the parties going forward may choose to terminate. Some treaties will require a court to adjudicate to find that there is a material breach before any action can be taken.

Articles 61. Treaties may be terminated due to impossibility of performance. It is a very narrow exception i.e. you have an agreement about a river and the river dries up. Not to be invoked when impossibility is the fault of the invoking state.

Article 62. Treaties may be terminated due to a “fundamental change in circumstances.”A fundamental change in circumstances doctrine is known as rebus sic stantibus. The doctrine is not to be used when the change is the result of the invoking party’s breach or when it is due to the omissions or acts of the invoking party, or due to a subjective change in the attitude or policy of the invoking party. The change must be unforeseeable and it must go to the object and purpose of the treaty.

Article 54. Withdrawal occurs when a treaty is still valid but a state no longer wants to participate. Sometimes the parties will merely agree to dissolve the treaty. Sometimes there are specific treaty provisions on how to withdraw. Sometimes the treaty will be silent but there will be a presumption against the ability to withdraw. Generally, withdrawal or denunciation of a treaty goes into effect six months after written notice is given. Usually withdrawal is predicated upon “extraordinary events.”

There can be no withdrawal from a human rights treaty. The rights invest in the people and cannot be withdrawn by the state.

UNIT III: CUSTOMARY INTERNATIONAL LAW

Customary international law is defined as “general practice” or “accepted as law.” The country asserting that there is a customary international norm bears the burden of proof of its existenceGeneral practice can be found by looking at sources including treaties, agreements, statements, armed commanders, letters, court decisions, etc. It is important to look to the practices of the relevant state actorsHow consistent must the practice be and how many countries must practice it? How long must the practice be around? Are dissenting and non-practicing states bound by this law? Do treaties count as sources of customary international law?

Opinio Juris

To show that there is a customary international norm, you need to show that there is opinio juris. Opinio juris is distinct from general practice—it shows that the practice is undertaken out of a belief that it is legally binding. Increasingly, there is less emphasis on the presence of general practice and more emphasis on whether states think they are supposed to be doing something (opinio juris).

The Paquete Habana (1900) SCOTUS. The question is whether fishing vessels and their crews are protected during wartime from capture as prizes of war. The Court says that the crews and their ships cannot be taken as prizes of war according to the history of customary international law. Civilized nation shave recognized fishing vessels as exempt at least since 1403 and the US has recognized and complied with this rule with Prussia. The Court notes that there have only been a few variations from this custom—a couple during the French Revolution and when the fishing vessels were thought to be feeding the army of the enemy.

Sources that are cited as sufficient to indicate a state’s practice include treatises, scholars, and armed commanders’ letters and instructions

Use of Nuclear Weapons. ICJ Advisory Opinion (1996). Court determines whether customary international law prohibits the use of nuclear weapons. They decide (in a 7-7 tiebreaker vote by the president of the court) that there is no definitive answer on whether the threat or use of such weapons would unlawful in all circumstances, particularly those implicating the fundamental right to self-defense to protect one’s survival. In general, because these weapons inflict useless suffering and do not distinguish between civilians and soldiers, the threat or use of nuclear weapons violates international humanitarian law. Under customary international law, there is no specific authorization or prohibition of such weapons. Resolutions of the General Assembly denote growing concern about nuclear weapons but not enough to constitute opinio juris on the topic. The policy of deterrence is in effect (basically mutually assured destruction theory) but this is not the same as a customary norm.

Why not come out with a decisive answer? Possibility that the Court realizes that no country powerful enough to obtain nuclear weapons would really listen to an ICJ ruling that told them they couldn’t use them if they came to that conclusion? Possible that the Court thinks the deterrence policy is doing alright?

Germany v. Denmark/The Netherlands—Continental Shelf Cases (1969) ICJ. Denmark and The Netherlands want to use a method of equidistance to settle a dispute concerning the Continental Shelf but Germany disagrees. They argue that the custom is an international norm under the doctrine of opinio juris. The Court says it is not. The phrasing of the language does not meet the requirement that States have begun to follow the norm out of a supposition that it is legally binding. The language of the agreement says use equidistance only if another agreement hasn’t been made. Plus it’s only been a short time (5 years) since this law came into effect, so even if more states were following the practice, including those with a special interest, they’d need to do so out of a feeling of legal obligation. Dissent: Legal obligation is a fiction here. General practice should be enough to constitute opinio juris.

When a document allows for reservations to a provision, there is a suggestion that the provision is not legally binding and thus not opinio juris.

When a law has been around only for a short time, there needs to be near-universal adherence to that rule by specially affected parties to constitute opinio juris.

Question of whether opinio juris is only ok when states have made statements about their legal obligations or whether looking to general state practice is the correct method?

Nicaragua v. US (1986) ICJ. The question is whether the principle of non-use of force can be deemed a principle of customary international law through opinio juris. The US says no; this is identical to the treaty provisions under which we agree that the ICJ has no jurisdiction. The ICJ determines that there must be state recognition of the rule and that general practice must also be present to create opinio juris. However, the practice need not be perfect to be sufficient. Some deviations may occur but that is not presumed to negate the rule. Further, state offerings/explanations of how the deviation is an exception to the rule will reinforce the rule’s validity (why would the state need to explain its behavior if it wasn’t expected to follow a certain rule?). Here, the US attitude toward the validity of the General Assembly resolutions on this issue suggest that there is customary international law. Opinio juris is present.

Notice the missing practice analysis? There is an idea that when there is agreement on the validity of the law (as the US conceded here) there is less emphasis on the general practice prong of analysis

Objections to Customary International Law and Jus Cogens Norms

There is an idea that customary international law can be formed even if there are some states that object to the law. The law will not bind those objectors but it will bind everyone else, even passive states that have recorded no opinion on the issue.Objections to a norm must be lodged while the norm is still developing not after it has already been instituted. Otherwise pacta sunt servanda kicks in. Those that object to the norm are neither bound by it nor benefit from its application to them; reciprocal in the same way that reservations to treaties are reciprocalThe persistent objector rule is not always helpful in application i.e. reluctant states may eventually be forced to accept the international norm anyway (US, UK, Japan had to accept coastal boundary rules that they objected to). This strategy has of course been deemed inapplicable to norms that are jus cogens, like apartheid in South AfricaFrequent violations of existing law can lead to the emergence of a new customary international law based on (1) the extent, frequency, and consistency of the departure (2) the relations of the states involved to the rule’s subject matter (3) the duration of the process.

Do new states get a say in customary international law? Can they persistently object to existing customary norms?

Filartiga v. Pena (1980). 2d Circuit. Filartiga brings suit in the US against Paraguayan nationals that were accused of committing the torture, kidnapping, and murder of his son in Paraguay. The suit is brought under the Alien Tort Statute which gives American courts jurisdiction over civil tort suits arising under the law of nations or through violations of treaties to which the US is a party. Noting the near universal acknowledgement that torture is unacceptable under international law, the wide adherence to such a principle in the UN General Assembly Universal Declaration on Human Rights, and the preservation of this principle in both American and Paraguayan constitutions, the court finds that a prohibition on torture is a jus cogens norm of international law that has been implicated (and probably violated). Because this suit arises under the law of nations, jurisdiction is proper.

Customary international law vs. jus cogens norm. Both require proof of acceptance throughout the international community but jus cogens norms cannot be objected to. Even when the general practice of a jus cogens norm is full of violations, no new norm can emerge to change the rule, which would be possible with frequent violation of customary international law.

Sosa v. Alvarez-Machain (2004) SCOTUS. Alvarez was a Mexican doctor alleged to have participated in the torture and death of an American DEA agent. American forces kidnapped Alvarez and brought him to trial in the US. After Alvarez as tried he brought suit under the ATS to sue the US for his cowboy-like detainment. The Court believes that there is no jurisdiction for the suit.

The ATS is viewed as providing grounds for jurisdiction not for creating a private right to action. The US doesn’t want nationals from all over the world flocking to the US to bring these kinds of lawsuits; the jurisdiction needs to be limited to narrow circumstances.

Soft Law

Soft law is non-binding law that expresses a commitment to some norms but not enough for states to bind themselves. This is like having a treaty without the essential requirement that parties intend international law to govern the agreement. Soft law can grow into customary international law or later be codified as real law in a full-fledged treaty. Soft law includes reports, standards, and expressed commitments. This is called global admission law by some legal scholars.The soft law approach is attractive for making compromises and adopting norms that would be difficult to ratify in binding, treaty form. For instance, foreign bribery laws started as soft law in the 1970s but are now binding on many states.

Another source of law includes the “general principles of law recognized by civilized nations.” This is mostly referenced for procedural laws like res judicata, circumstantial evidence, etc.

To change customary international law states may negotiate a treaty to formally change the custom (unless the norm is jus cogens). You can also opt to change the custom by ignoring the law and engaging in frequent violations (but you probably open yourself up to liability).

International Law and the United States

The President has authority under Article II, Section II. of the US Constitution to enact treaties with the advice and consent of 2/3 of the Senate. Article VI provides that treaties are the supreme law of the land, placing them on equal footing with federal law, and above state constitutions and laws.

Treaties cannot be used to change the Constitution or reallocate powers already delineated through the separation of power doctrine.

Missouri v. Holland (1920) SCOTUS. The question is whether a treaty with Canada (Great Britain controlled) was valid on the grounds that it impeded the states’ 10th Amendment power. The treaty governed the hunting and killing of migratory birds. The Court ruled that the treaty was valid. Although an earlier act of Congress seeking to regulate this very issue had been invalidated, this was a treaty and treaties can sometimes do what Congress cannot. The treaty itself is a constitutional use of power so the act is merely in furtherance of the treaty. Any state authority on this issue cannot be superior or exclusive.

Reid v. Covert (1957) SCOTUS. There is a question of whether a treaty must comply with the Constitution. The answer is a resounding yes. Court declares that two US citizens cannot be court martialed in Great Britain and sentenced to death without a jury trial pursuant to an international agreement known as the UCMJ. The language of Art. III, Sec. II clearly states that crimes committed outside the US are still subject to be tried as Congress has directed by law, and law of course includes the US Constitution. Jury trial is a fundamental right and the Constitution still applies even overseas.Harlan Concurrence: For a capital punishment case a jury trial is required but not necessarily so in every case. Not all of the Constitution has to apply every time—it will depends on the facts.

Since these two cases, the Court has held that the 4th Amendment doesn’t apply abroad.

Self-Executing and Non Self-Executing Treaties

It is important to remember that some countries take a dualist approach to international affairs: the country must work with two systems—the domestic system and the international one. UK has a monist approach where international law is given immediate domestic effect. Most countries, like the US, have a mixed system.

Self-executing treaties are domestically enforceable upon ratification by the Senate. Non self-executing treaties are only enforceable upon implementation of legislation by Congress. Usually the treaty will state whether it is meant to be self-executing or not. Absent written provision, the intent of the President or the ratifying Senate will indicate the nature of the treaty.If the content of the treaty falls within the lawmaking power of Congress, then there must be legislative action to bring the treaty into effect.The question of self-executing or not can be made as to the entire treaty or to specific provisions

Asakura v. City of Seattle (1924) SCOTUS. The court invalidates a city ordinance that prevented the petitioner from operating his business because he was not a US citizen. The petitioner was Japanese and claimed that the ordinance violated a treaty between the US and Japan allowing citizens of each nation to enter the other country and conduct business. The Court noted that the treaty trumped state law and accordingly found the ordinance to be invalid.

Crosby v. National Foreign Trade Council (2000) SCOTUS. Court reviews and invalidates a MA law that restricts trade and business with Burma. After the state law was enacted, Congress delegated authority to the President to set the business policy toward Burma. The Court rules that the inconsistent MA legislation was preempted due to the federal policy enacted by the President under congressional power. Federal preemption was implied and automatic—there need not even have been a federal statute for the state law to be invalid.

Medellin v. Texas (2008) SCOTUS. The Court considers whether an ICJ decision is a self-executing decision that is binding upon US domestic courts. The Court believes it is not. The ICJ had ordered the US to reconsider the conviction of several defendants who had been denied the protections of the Vienna Conventions because the defenses had not been timely raised under state law practice. The text of the UN Charter, Art. 94 shows that ICJ decisions are not meant to be automatically effective. The language states that the country must “undertake to comply” with the decision, which denotes future action i.e. of implementation by Congress. No other country in the world implements ICJ decisions in this way. An order of the President to give effect to the treaty is not sufficient because such an order is beyond his constitutional authority—Congress must implement the treaty first. Therefore, the ICJ decision provides for diplomatic remedy only (US will still be liable for the failure under international law—domestic practice is not an excuse VCLT Art. 27).Breyer Dissent: The majority puts way too much emphasis on the “undertakes to comply” language. The UN Charter cannot be more definitive about implementation than it is because there are some 70 other countries that are party to the treaty and each has its own way of implementation. This has been seen as self-executing and should be here. The language of the Protocol calls for “compulsory settlement of disputes” = binding; the Vienna Convention provisions themselves are self-executing; binding decision + self-executing provisions = self-executing decision; nature of the language must cover 70 other countries; the decision speaks

directly to judicial rather than legislative enforcement; there is no constitutional threat her because there is no need to create a new private right of action; and the President has already ordered this to be enforced.

A defining aspect of the self-executing nature of treaties seems to be whether the treaty protects individual rights or if it speaks only in terms of national interests. If the treaty speaks to individual rights, that suggests that the treaty is self-executing. If the treaty speaks to national rights, that suggests the treaty is non self-executing.

Because treaties and federal statutes are on equal footing, whichever is enacted last governs in the event of a conflict. This is known as the last-in-time rule.

Breard v. Greene (1998) SCOTUS. Breard was a Paraguayan national who had been convicted and sentenced to death in the US. He then alleged a violation of the Vienna Convention which requires arresting police to give foreign nationals the chance to contact their relevant consulate or embassy. VA ignored the defense because it was not timely raised. Paraguay then initiated proceedings against the US in the ICJ but the Court declined to stay the execution. Subsequently, Congress passed a law that required these Vienna Convention challenges to be made timely or be forfeited. Federal law is on equal footing with a treaty (Vienna Convention) and because the congressional statute came later, the Vienna Convention was subject to the new stipulations. Thus, the prisoner could not invoke the rule.

When a provision of an international treaty is invalidated under domestic law, this does not discharge the US international obligation to its treaty partners (Art. 27).

Use of a federal statute to invalidate a treaty is rarely done. If another construction of the later statute is possible, the Court will apply the Charming Betty principle and construe a statute so that there is no conflict.

Can the President unilaterally rescind a treaty that required the advice and consent of the Senate? SCOTUS has ruled that this is a non-justiciable political question.

US v. Noriega (1992) FL. The Court looks to the Geneva Convention III (POWs) to decide if it is applicable to Noriega. The government contended that the Geneva Conventions were non self-executing and thus not applicable in domestic courts absent congressional implementation. The Court disagreed, finding that it would violate the intent and nature of the treaty to prohibit individual POWs from invoking it in court. That would mean that the treaty is self-executing. When a treaty implies a private right of action it is probably self-executing.

Idea that this is one of those rights that has been invested in the people rather than the state?

Hamdi v. Rumsfeld (2003) 4th Cir. Hamdi, a US citizen captured in Afghanistan while supposedly doing illegal things in a theater of war, is not entitled to certain constitutional protections simply because he is American. He lost some of those rights by virtue of the circumstances of his arrest. The Geneva Convention he seeks to rely on is not self-executing because it emphasizes the diplomatic resolution of violations between state entities rather than by individuals. Whether or not he is a lawful or unlawful combatant, he can be detained until the end of hostilities (Quirin principle). Hamdi’s citizenship allows him to challenge the detention but nothing more.

Kucinich v. Bush (2002) DCC. The question of whether the President can unilaterally terminate the Anti-Ballistic Missile treaty is a non-justiciable political question under the precedent of Goldwater (this is an issue of foreign relations firmly within the executive power). Of the Baker factors (which lay out the six kinds of political questions), this issue would invoke a lack of respect for the political branches, there is an unusual need to adhere to precedent, and deciding the case differently could lead to embarrassment (the international community has been on notice of the termination for a whole year now). Additionally, Congress hasn’t acted so why should the Court? Foreign affairs are an inherently executive decision outside the purview of the court. In any case, the 32 congressmen that brought this suit don’t have standing.

You must also remember that treaties are different from executive agreements. Most of the agreements that the US enters into are executive agreements rather than treaties. The difference is only significant domestically.

Executive Agreements

International agreements made by the United States that are not treaties are called executive agreements. An agreement based on congressional action or statutory authority is called a congressional-executive agreement (idea that these agreements can only be valid if they involve delegation of a power that Congress actually possesses). An agreement based on the President’s constitutional authority is called a presidential or sole executive agreement.

Three Constitutional Bases for Executive Agreements:(1) Pursuant to a treaty that provides for unilateral executive agreements(2) Pursuant to existing (ex ante) or pending (ex post) legislation from Congress—often

equated with treaties(3) Pursuant to the Presidential constitutional authority as long as it is not inconsistent

existing federal statutes—usually only used for housekeeping or other minor issues but can be used when Congress is deemed to moving too slow. (Presidential constitutional authority includes foreign relations, authority to receive ambassadors and public ministers, duties as commander in chief, and the take-care clause.)

The Case Act requires the President to inform Congress of any international agreements, other than treaties, to which the US is a party as soon as practical and in any case within 60 days of entering force.

Executive agreements vs. treatiesgenerally non-commercial agreements and major military issues are viewed as treaties. Both will have the question of whether they are self-executing. Either can be superseded by subsequent treaty or federal action, except for those enacted pursuant to the President’s constitutional authority (there the President retains full authority).

UNIT IV: STATES AND OTHER INTERNATIONAL ENTITIES

Statehood includes sovereignty over territory and nationals; legal status as an entity that can make contracts, own and transfer property, enter international agreements and be a member of international organizations; and the capacity to join other states in making international law.

Montevideo Convention on Rights and Duties, Article 1 defines a state as having (1) A permanent population(2) A defined territory(3) Government(4) Capacity to enter into relations with other states.

A permanent population means both significant and permanent i.e. not AntarcticaThe territory requirement can be met even though there is a border dispute, unsettled boundaries, or when some territory is claimed by another state or occupied by another state entirely. Territory includes the subsoil, air space, coastline, and 12 nautical miles into the sea.Government need not be a specific type of government but needs to be a representative entity for international purposes. A news ate cannot emerge until an effective government exists.Relations with other states implies political, technical, and financial capability to competently conduct international relations. This responsibility can be voluntarily delegated to other entities without losing statehood.

Recognizing a state before these threshold conditions have been met can be bad for the internal affairs of that state and can be deemed to be unlawful intervention into domestic affairs [UN Charter 2(7)].

The US advocates additional factors to determine if a state is a state including peaceful and democratic; rule of law; safeguarding of human rights; respect international legal obligations; non-proliferation; resolve disputes peacefully; respect existing boundaries; no recognition of emergent states that come about through use of aggression.

Typically a state comes into being when other states decide to treat it as such. In the US, the President has the sole discretion to decide whether or not to recognize an entity as a state. Recognition of a state is a political choice that has no actual bearing on whether the entity is or is not a state.

Non-recognition means the state is denied access to US courts, denied title to property held in the US, and acts of that state on the international level are not given effectThere are two kinds of state recognition: (1) Declaratory recognition doesn’t impact whether or not a state exists. (2) Constructive recognition is needed to legitimize an otherwise legally defined state (practical because you need interactions with other states to use any state power).

Changes in the government or leadership of a nation can have an effect on whether or not a state formally recognizes that state’s government. This will usually become an issue when the change in government or leadership comes about in a way that violates domestic law. There are two approaches to deal with this issue

(1) The traditional approach bases recognition on the effectiveness of the control; stability and permanence; acquiescence or popular support; and the ability of the government to fulfill its obligations

(2) The Estrada Doctrine doesn’t care about how a new government comes to be. Only new states present an issue

When there are competing governments claiming power over a state, how do you choose who to recognize? The government that controls the most people? The one with the best interests of the people in mind? Some other criteria? Always the need to avoid interfering in another’s affairs.

Even if a government comes to power unconstitutionally it is still responsible for the state’s existing legal obligations—this encourages international stability.

New States

State succession occurs when one state replaces another with respect to capabilities, rights, and duties. This can occur when one state absorbs another, becomes independent of another, takes part of the territory of another, or results from the dissolution of one state into two or more.

Does a new state have the same obligations as its predecessor? For instance does the new state have to pay the old state’s debt? The US has refused to do this when acquiring new territory. There are three approaches to this issue:Restatement Approach. Burdens, obligations and property, etc. pass to the new state or absorbing states. International agreements are largely terminated as to the new state with the exception of pre-existing boundary and territorial agreements.

Vienna Convention Approach. A newly independent state is not bound by any of its predecessor’s treaties (except with respect territory and boundaries). A newly independent state is defined as a successor state of a territory that was previously dependent on the predecessor. The Convention only applies to states that have been created in conformity with international law.

A state’s declaration of independence may or may not be legal but it can be legitimized by subsequent political processes like ascension to the UN or recognition by the international community.

Advisory Opinion on Kosovo (ICJ). Recognition of a state and statehood are two distinct processes. Recognition is largely political and creates only a bilateral relationship between the new state and the other state. An illegal unilateral act by cannot produce legal consequences. In fact, the unlawful act may produce a duty not to recognize the entity as a state. Recognition cannot change the status anyway. The court rules that Kosovo is not a state.

New state vs. new government: A new state has a new territory. A change of the state’s name does not mean there is a new state. A new state is a radical change, not just in the way the state is run but even as to its composition.

Self-Determination

Self-determination is the right non-self-governing territories (colonies) to freely determine their political status. It can be achieved through political status, incorporation into the national community, or the creation of a new state. The right is recognized in the UN Charter Article 1(2), has been deemed a customary international norm, and some also consider it to be jus cogens.

Does political status mean entitlement to statehood? What constitutes a people—an entire territory, an ethnic minority within a state, a fringe political group?

East Timor. East Timor was a territory of Portugal until 1975 when Portuguese forces withdrew and Indonesian forces stepped in. The UN called for Indonesia to withdraw to give East Timor a chance at self-determination but they refused. Portugal, still East Timor’s formal administering power, brought suit against Australia (who was contracting with Portugal for East Timor’s resources) as a way to get the ICJ to declare that Indonesia had to leave. The ICJ didn’t exactly answer the question because Indonesia wasn’t a party to the court but they did acknowledge that the right to self-determination exists. They claimed instead that UN Resolutions don’t necessarily mean that Australia couldn’t legitimately recognize Indonesia as the ruler of East Timor. In 1999, the people of East Timor voted for their independence and Indonesia recognized their autonomy. They are now called Timor L’este.

Secession of Quebec (1998) Supreme Court of Canada. Court reviews the legality of Quebec’s attempt to unilaterally secede from Canada. The court believes that international law provides no

express right of unilateral secession. Quebec responds that they are exercising their right to self-determination or alternately that whatever is not specifically prohibited by international law is allowed. The Court believes that international law points toward deference to domestic law on the question of secession and Canadian domestic law does not allow for secession in this way. As for the self-determination argument, the people of Quebec are not deemed to be able to assert this right. Secession undertaken outside the policies of domestic law is reserved for extreme cases, namely colonial/foreign rule, oppression, or arguably when domestic law affords no meaningful way to secede. Finally, the court addresses the idea of effectivity—recognition by other states to legitimize an emergent state—but believes it has no relevance here. Effectivity may result in de facto statehood but it does not mean that there is a right to unilaterally secede.

UNIT V: STATE RESPONSIBILITY FOR BREACH OF INTERNATIONAL LAW

Commonly held norms state that when a state breaches international law, they incur international responsibility. The state is responsible for making reparations to injured parties. In this framework, the rules of international law are called primary rules and the rules governing breach of the primary rules are called secondary rules.

The ILC Articles on State Responsibility are most influential on this topic. To analyze under the ILC ask yourself

(1) How do you determine if there has been a breach and how can it be attributed to a state?(2) What are the consequences of the breach i.e. what reparations may be due?(3) What happens if the reparations procedure doesn’t work? Self-help? Countermeasures?

Self-contained regimes are those regimes that create both substantive obligations and special procedures for if those obligations are breached. These regimes are intended to govern issues entirely without aid or supplement from other documents or treaties.

Determining Breach

There is no requirement of culpability or fault for a breach to occur.

When a treaty concerns only states, an actual violation is required for a breach. When the treaty governs and creates benefits derived from the activity of independent operators, any action which has a tendency to create a chilling effect can be deemed a breach.

Right to Bring Suit

Sometimes a party other than the wronged party can bring suit. This is appropriate when (1) The duty was owed to a group of states with a collective interest in the agreement OR

(2) The duty was owed to the international community as a whole. These rights are known as erga omnes. Human rights and environmental obligations are generally deemed to be erga omnes.

Precluding Wrongfulness

The ILC Articles (DASR) allow several conditions that will preclude wrongfulness for breaches or acts taken outside of conformity with an agreement. These conditions include consent [Art. 20], necessity [Art. 25], distress [Art. 24], force majeure [Art. 23], and self-defense [Art. 21]. They cannot be invoked as an excuse for failing to observe a norm that is jus cogens.

Rainbow Warrior (1990) New Zealand and France. French nationals blew up a ship in New Zealand’s territory and pursuant to an arbitration agreement between the parties, the culprits were to be detained on an island prison for three years. France allowed both inmates to be removed from the prison, without New Zealand’s consent, under conditions of medical emergency and compassionate grounds when one inmate became pregnant/father was terminally ill and the other required surgical care. Neither was returned to the detention facility after these conditions. France claimed that there was no wrongfulness due to claims of force majeure and distress. The court believed that neither of these claims was apposite. Force majeure (Article 23) required higher stakes than these—it is involuntary conduct undertaken due to an unforeseen event or force making it materially impossible to comply with an obligation. The distress (Article 24) claim had merit but could only be invoked under limited circumstancesexistence of extreme peril and exceptional circumstances that requires an act not in conformity with an obligation in order to save the state itself or someone under the state’s care, to be undertaken with a good faith effort to secure prior consent and to reestablish compliance when the exceptional conditions have passed. These conditions were not met (no consent and no reestablishment of the incarceration).

Distress, unlike force majeure, involves loss of life if there is compliance. Some states have invoked distress on the grounds that if they pay the debt funds will have to be diverted such that living conditions will be diminished and cause starvation.

Hungary/Slovakia Project (1977) ICJ. Hungary invokes a defense of a state of necessity to preclude the wrongfulness of their failure to comply with an agreement. Necessity (Article 25) requires an essential state interest to be in grave and imminent peril such that the state’s sole recourse is to act outside of the agreement. Additionally, the state cannot be the author of the condition and the action cannot seriously impair the interests of other states. Here, the harm was not deemed to be imminent and there were other measures the state could take other than breaching the agreement. The court suggests that when the danger is not imminent, the states should renegotiate around the impending danger.

Necessity, unlike force majeure, involves a deliberate decision not to comply. Force majeure is not about a choice—it is the result of impossibility.

CMS v Argentina. Argentina falls on harsh economic times and is unable to efficiently meet the demands of its energy contract with CMS. Argentina argues that its breach is not wrongful because of the defense of necessity. They claim their economic interests are in imminent peril, which is different because necessity is usually only invoked in life and death situations. The court decides that economic interests can be a grave interest but that Argentina has contributed to this situation through the adoption of its particular economic policies and that in any case there were other means to be taken besides breach.

Wrongfulness can also be precluded through the consent of the state (Article 20), so long as the consent is valid (no recognition of consent to violate human rights norms) and the acts of the other state do not exceed the bounds of that consent. Also consent does not mean that liability to third parties will not arise.

There is also the claim of self-defense under Article 21. This is a limited right to use force and it must be in accordance with the Convention.

Attribution of Wrongs

An act must first be proven to be attributable to a state and then it must be proven that the act is a violation of international law.

ILC (DASR) Articles 4 provides that actions of state officials and state organs are attributable to the state. Article 5 further provides that individuals and other entities acting on behalf of the state i.e. a contractor can have their actions attributed to the state. Article 8 states that an individual or group’s conduct is attributable when the individual or group is acting on the directions or under the control of the state.

US v. Iran (1980) ICJ. Suit arises based on the hostage crisis in Tehran and the legal implications of the Iranian response. Court considers Iran’s responsibility both before and after the crisis. First, the original act of hostage-taking (Embassy in Tehran) was done independently and without the state’s knowledge so this is not attributable. However, subsequent public approval of the events and complicity in the situation could establish responsibility (extensive statements by the Ayatollah Khomeini and other government officials accepting state responsibility). Second, the lack of response by the Iranian government to protect and aid the hostages (demonstrations at Tabriz and Shiraz) violated a number of international obligations to foreign nationals, embassies, and consulates. The alleged criminal activities of the United States do not provide justification. Iran is required to make reparations.

Nicaragua v. US (1986) ICJ. Nicaragua argues that the US has organized, directed, supplied, and controlled the paramilitary operations of the contras. This group had been acting to subvert the

Nicaraguan government and to injure its citizens. The court believes that the US has provided support but has not done enough to show control. The acts of CIA members in Nicaragua can be attributed to the US but they do not constitute control of the contras. The US will be liable for its actions only, not those of the contras at large.

This case involved three different groups of actors. There was the US, there were the contras, and there were UCLAs (unilaterally controlled Latino agents who were trained, paid and instructed by the CIA). Payment and more importantly the instruction of the UCLAs made the US responsible for their actions. The contras posed a more difficult case and it was analyzed under Article 8. The court requires effective control or complete dependence of the group for attributionthe contras were not assembled by the US; they were already in existence. Ultimately, the US was found to be responsible for the CIA controlled UCLAs and for their own interventions in Nicaragua’s domestic affairs but they were not responsible for all of the acts of the contras such that the contras could be viewed as US agents.

Prosecutor v. Tadic ICTY. Court reviews and rejects the effective control test of Nicaragua. The Court believed that this test was too restrictive and was not realistic in all contexts. It was important to distinguish between actions undertaken by groups and those taken by individuals as well as between those that constitute unlawful performance of lawful instructions and those that are actions undertaken pursuant to unlawful instructions given by a state actor. Liability can be found in any of these situations. When the conduct is of an individual or non-military group, there must be specific instructions issued to the group by the state OR the conduct must be endorsed or publicly approved after the fact. For armed military or paramilitary groups, the control required need only be of an overall control, not necessarily specific to each action. This control must be greater than mere financial assistance or military training; it can be met when the state has aided in organizing, coordinating, or planning the military actions of the group in addition to financing, training, equipping, or providing operation support. When the conduct occurs outside of the controlling state’s territory, then additional evidence is required through proof of the general direction or planning of actions. A third means of liability occurs when individuals act in such a way as to be part of a military group.

The VRS was a Serbian militia in Bosnia and Herzegovina that committed the genocide at Srebrenica. The question is whether the acts of the VRS could be attributed to Serbia. If Serbia was in control of the VRS then this would be an international armed conflict, but if not, this is more like a civil war. The court believed that Serbia had control of the VRS. They institute an overall control test instead of the effective control test. Overall control consists of organizing, planning, financing, training, supplying, and other activities. The court believes this test is more in line with actual state practice. Individuals must be given specific instructions—groups must be under overall control.The Bosnia and Herzegovina v. Serbia case limits the Tadic holding by claiming the case was only about determining whether there was an international armed conflict.

Serbia is not found to be responsible for the actual genocide committed by the VRS but it is responsible for intervening in the domestic affairs of B&H and for failing to prevent the genocide. This court doesn’t like the overall control test because it expands the responsibility of a state too much. They do not actually overrule the test they just claim it is inapplicable when deciding whether a specific act of a group is attributable to a state.

Reparation

Reparation is an umbrella term for various remedies. It requires the reestablishment of the status quo before the injury and can take several forms.

Restitution in kind means reestablishing the status quo.Compensation can be awarded for direct harm and for future lost profitsSatisfaction involves merely making a formal apology or expressing regret. Sometimes the court’s finding against a state is all the acknowledgement of a breach that is required. Occasionally specific performance is required to stop violations from occurring.Interest may be added to orders of reparation from the principal date until payment.

Countermeasures [DASR Art. 49]

Countermeasures are self-help actions an injured state may take unilaterally to ensure another state’s compliance. There are three types of countermeasures:

(1) Reprisals are acts that would be unlawful if not for the prior unlawful act(2) Reciprocal measures are non-performance by the injured party of other international

obligations that correspond to or are directly related to the breach(3) Retorsion includes acts that generally permissible under international law regardless

of the original breach i.e. cutting off diplomatic relations.

Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 (ICJ). There are four criteria to determine the lawfulness of a countermeasure. First, it must be taken in response to a previous wrongful international act and it must be directed at the offending party. Second, the injured state must demand that the offending party discontinue its wrongful act or make reparations. Third, the countermeasure must be proportional to the harm done (this criterion failed in this case). Fourth, the act must have the purpose of inducing compliance, meaning that it must be reversible.

Article 49(1) limits countermeasures to be taken by states in order to induce compliance. Article 51 requires a countermeasure to be proportional. Article 49(3) requires the countermeasure to be reversible. Article 50 states that violations of human rights norms and humanitarian law are never acceptable countermeasures.

Article 52(3) states that countermeasures may not be taken or must be suspended if the wrongful act has ceased or if the dispute is pending before a court or tribunal with binding authority over the parties. Other courts have required the use of arbitration first.

When the breach is of a multilateral agreement the injured party may suspend performance as to the offending party so long as it does not harm a collective interest and is not a measure specifically prohibited by the agreement. Where there is a collective injury, the injured states may take collective countermeasures against the offending state.

Air Services (France and US) 1978. Suspension of French flights to LA in response to French suspension of London Paris Pan Am flights was deemed to be a proportional countermeasure. There is no international duty to refrain from countermeasures simply because there were arbitration proceedings provided for in the governing agreement. Countermeasures were deemed to be available as long as the injured state did everything possible to speed the arbitration along. Once the proceeding actually begins the right to take countermeasures disappears, but they allowed in the interim.

UNIT VI: THE INTERNATIONAL COURT OF JUSTICE

Art. 94(1) of the UN Charter states that all member states agree to comply with ICJ decisions, the decisions being binding only on those states that are party to the action (Article 59).

Article 34(1) declares that only states can be parties in cases before the ICJ and Article 35(1) opens the court to all members of the UN.

Jurisdiction before the ICJ

Article 36 of the ICJ Statute:

“1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach of an international obligation.3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

States can agree by special agreement to submit an issue to the jurisdiction of the court by a document known as a compromis.

States may also include a clause in a treaty agreement that allows for any disputes arising from the treaty to be submitted to the ICJ.

A dispute about the appropriate remedy following a breach of the treaty is a dispute arising from the treaty [LaGrand Case, Germany v. US]Attacks and use of force may be relevant to a treaty such that the ICJ can issue opinions on the appropriateness of use of force stemming from its jurisdiction based on disputes arising from the treaty [Oil Platforms, Iran v. US]

States may adhere to Article 36(2), known as the Optional Clause, which allows for compulsory ICJ jurisdiction over any claim arising from an international legal dispute. It extends automatically only to cases in which both parties have accepted the Optional Clause. Some 66 states have accepted the clause.

International legal disputes include interpretation of a treaty, a question of international law, existence of a breach of an international obligation, or nature or extent of a reparation for a breach.

UNIT VII: JUS AD BELLO—USE OF FORCE

Prior to 1914 recourse to war was deemed an inherent right rarely invoked for reasons other than self-preservation, self-defense, necessity to protect vital interests, or due to injury to rights/honor. In general it was a restricted right of nations.

The Caroline. There was evidence that the crew of the Caroline fired shots into British Canada. The British responded by attacking and sinking ship, wounding several man and killing at least one. They later claimed necessity of self-defense and self-preservation but then they went ahead

and apologized. There is a notion that the immediacy of the threat must be such that no other action is possible and the action taken must be proportional to that threat.

Reprisals

Reprisals were a way for nationals that had been harmed abroad to bring actions against their wrongdoers with the support of their home state. By the 19th century, all reprisals were state endeavors, not merely individual actions taken by private citizens. To be legitimate, there must first be a breach of international law, then an unmet demand of redress, and then a reprisal would be ok. Cases of accidental injuries to other states (Germany and Portugal in Naulilaa) do not count. Finally, the reprisal must be proportionate to the harm done.

Movement Away from the Use of Force

The Kellogg-Briand Pact states that war in condemned and that all international disputes should be resolved by pacific means. It has been ratified by more than 60 countries including the US. The Pact contains no enforcement provision and doesn’t delineate between the use of force generally and entry into a state of war.

The use of force and WWII. The Nuremburg trials established by the US, UK, France, and the USSR had a major impact on the way that use of force was viewed. The charter for the tribunal defined war crimes, crimes against humanity, and crimes against peace as offenses.

Crimes against peace were a totally new kind of crime at the time. The crime involves planning, participating, initiating, or waging a war of aggression or any war in violation of international law.

The other important impact of the trials was the adoption of the UN Charter’s use of force regime. The document is treated as a quasi-constitution and its articles are held to be superior above any other treaty its members may be party to (Article 103). The UN Charter seeks to forbid war and instead focus on collective security measures i.e. use of diplomatic and economic sanctions with reliance on political forces. Articles 42 and 43 define and detail the guidelines for these international police forces. When the UN says that “all necessary means” may be used that means they are authorizing the use of force.

The key articles of the Charter are Article 2(4) and Article 51.

Article 2(4)—Use of ForceAll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The force mentioned in this article is only outlawed so far as it is inconsistent with international law. Of course, the state will argue that the use of force was permissible but it will probably need to be reviewed to determine its legitimacy.

This article creates questions of what constitutes force. It was directed at wars but “force” is much broader than that. As broad as it is, it does not include economic coercion.

Any use of force must be proportional and necessary (unresolvable through pacific means). The validity of the response will be determined after the factDoes the proportionality requirement mean proportional to the armed attack or proportional to the perceived threat of future attacks?

Article 51—Right of Self-DefenseNothing 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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

This right is a unilateral right and states do not require outside approval to invoke it—the action may however be challenged in court afterwards. The provision also provides for collective self-defense such that other states may join the self-defense efforts of an ally. This tight is be invoked only until collective security measures are taken and the right may only be invoked in response to an armed attack.

What constitutes an armed attack? An armed attack is different from use of force—the difference is scale and effect. The decision rests with courts as to whether an action taken in self-defense is legitimate or not.

Individual actors and small scale skirmishes or incidents are not armed attacks. State ordered attacks are armed attacks. State-sponsored attacks i.e. providing funds and weapons are not armed attacks (Nicaragua).

Dropping bombs? Yes Sending armed troops/elements/insurgents? Yes Arming groups? No Funding groups? No A string or compilation of singly insufficient acts taken together?

Sometimes

Collective self-defense means that a state intervenes on behalf of a victimized state. The victimized state must have actually suffered an armed attack for this to work. Also, the attacked

state must make a request for aid in defending itself before other countries are allowed to jump in and use force.

Potential Invocations of the Rights to Self-Defense: In response to terrorist attacks or other insurgents Against ideological subversion (highly disfavored) Against attacks on citizens abroad (case by case basis—usually justified when the UN is

incapable of acting and the political context warrants intervention to aid credibly endangered citizens)

An important question is whether there is such a thing as anticipatory self-defense. Use of this defense is tricky but it does exist. The idea is that it is illogical to require a state to wait until after it has been attacked to respond with force when the initial attack may be decisive in the conflict or debilitate that state. At the same time, this justification cannot be invoked anytime a country feels threatened.

Countermeasures and self-help are available when the international community has failed to enforce a law and the country is a victim of this failure—it is available generally for norms that are erga omnes. By law however, this right is limited so that it does not infringe on the right to self-defense.

Self-help may be seen as a right of last resort—it will inevitably be reviewed by a court. The legitimacy of the act will be reviewed based on the facts, the proportionality, and the necessity.

Responding to terrorism invokes several issues. Is terrorism an armed attack under Article 51? Often it is not—many terrorist groups are non-state actors. This will also create an issue as to whether the state that harbors or sponsors these groups can be attacked legally—can the acts of these groups be attributed to the state? Under either an effective control or overall control test, attribution would be difficult to prove. There is of course an international duty not to allow such terrorist activities to occur within one’s borders but this is distinct from attributed liability.

Difficult Cases under the Charter’s Use of Force Regime

Reprisals. These are measures taken after citizens are attacked abroad. There is an idea that there needs to be a continued threat and responsive force is only allowed until the Security Council acts. The object and purpose should always be peaceful resolution through collective measures. Armed reprisals are unwarranted when there is no use of force.

Taking of hostages. Is this an armed attack? If hostages aren’t harmed, then it is not an armed attack. Also, the hostage-takers could be non-state actors acting individually. Even if the hostage-taking is deemed to be an armed attack response with force could not be necessary

because there are a number of diplomatic means, negotiations, complaint to the Security Council that can be taken. The argument in response is that negotiations take too long, the armed attack infringes on the state’s sovereignty, and necessity is definitely at stake.

Insurgency and Civil Wars. Generally there is no right to intervene unless you have been given consent by the state. Progressive argument: humanitarian intervention. Creative argument: assisting a rebel group promotes self-determination of a people. Novel argument: your intervention would help to promote regional security. Whatever the argument you must overcome the UN Charter’s prohibition on the use of force [Article 2(4)], and its prohibition on intervention in another state’s domestic affairs.

Restoration of Democracy. Could this be justified under an argument of promoting regional peace and security? There could be an argument of collective self-defense if the ousted democracy was the victim of an armed attack. Here there is a direct conflict between the Reagan Doctrine (intervention for the promotion of democracy) and the Brezhnev Doctrine (intervention for the promotion of socialism).

Terrorism. There is the argument that attacking a terrorist group is not a use of force against an actual state’s independence/territory (this is a losing argument but it should be made). The better argument is that the state has a right to use self-defense against an armed attack by a terrorist group but it should be countered with the argument that the terrorist activity does not amount to the level of an armed attack but is rather a “border skirmish” or whatever. There is also the suggestion that the Charter only governs state-state relations and not armed rebel groups. Still, there is always the belief that recourse must be made to the Security Council first, then negotiations, etc.

Anticipatory Self-Defense. According to the Caroline (1837), anticipatory self-defense could be warranted, but the situation must be “instant, overwhelming, leaving no choice of means and no moment for deliberation.” Has this sentiment been incorporated into Article 51 or is it simply overruled by the requirement that there must be an armed attack before force is used? The issue of nuclear defense—there is an idea that the promotion of international peace and security requires the possibility of anticipatory self-defense because a nuclear threat would have huge international repercussions. There is a plausible argument that Caroline is old and outdated from a time when war was permissible and even celebrated. But Article 51 does mention an “inherent” right so this would imply that historical notions are incorporated in the article. Then of course there’s the fact that nuclear weapons change the game entirely.

Uniting for Peace Resolution

This document was passed in 1950. It authorizes the General Assembly to recommend collective measures on behalf of its members when there is a threat or breach of the peace or an act of

aggression and the Security Council is deadlocked among its permanent members. The Security Council is to authorize intervention with Uniting for Peace Resolution coming in as a backup, followed by regional bodies of authority.

This was tested in 1956 with the Suez Crisis (Britain, US, and France, deadlocked so Yugoslavia invoked the Uniting for Peace Provision to suggest an emergency force) as well as in 1960 with the Congo (France, Russia vetoed and the US invoked the resolution to create ONUC). The ICJ later declared that these missions were ultra vires as secondary acts of the Charter and could not mean that states were force to financially support the acts without their consent. Primary reliance must be on the Security Council.Still in effect but not invoked much in these days

DRC v. Uganda (2005) ICJ. The DRC brings suit against Uganda alleging a violation of Article 2(4) claiming an unlawful use of military force in DRC. Court reviews assertions by Uganda that it has lawfully been present in the DRC by virtue of the DRC’s consent or on the grounds of self-defense. The Court is not persuaded by either argument. For consent, the ICJ believes that DRC consented by that Uganda went beyond the limited scope of the consent that was granted (Uganda could be present in Eastern DRC from May 1997 to September 1998 to combat anti-Uganda rebels). However, when DRC began accusing Uganda of invading its territory in August 1998, whatever consent had been granted was obviously withdrawn. The Lusaka agreement for withdrawal could not be seen as a means of consent just because it laid out a certain timeline of events. Finally, there could be no self-defense because (1) the attacks were not committed by or attributed to DRC (2) self-defense must be against an existing attack and there was none here (3) anticipatory defense was not raised as a defense by Uganda. Uganda is responsible for human rights violations in DRC.

This case was the first time that the ICJ found a violation of 2(4). But what about the US in Afghanistan? Weren’t we responding to terrorist activity, not necessarily attributable to the state, within another state’s borders, without their consent? No one questioned the right to self-defense there…is it because of the larger scale of the initial attack? The Uganda responses were not deemed to be proportional…is that the same thing?Does it matter how much control the state has over its territory to suppress or stop the terrorist activity? Is intervention more warranted when you are dealing with a failed or helpless state?

The Responsibility to Protect

Three duties are to prevent, react, and rebuild. Prevention is most important and preventative measures should be exhausted before resorting to intervention. Measures should be least intrusive and coercive before increasing in force. Military intervention warranted only in extraordinary circumstance of serious and irreparable harm to human beings with an

imminent threat of large scale loss of human life (the product of deliberate state action, inability, or failure or neglect) or large scale ethnic cleansing (exercised through killing, forced expulsion, terrorism, or rape). Only the four crimes of war crimes, crimes against humanity, ethnic cleansing, and genocide warrant military intervention.

Military intervention must have the right intention (primarily to avert human suffering—this intention is presumed when the intervention is multilateral); must be used as a last resort; must be proportional; and must have a reasonable chance of successfully averting the harm perceived.

The UN General Assembly more or less endorsed R2P in 2005 via a declaration in the World Summit Outcome Document—seemingly some conflict between the duty to intervene and the requirement to submit to the Security Council first. The scope of R2P is limited to genocide, crimes against humanity, war crimes, and ethnic cleansing.

Three pillar strategy of state responsibility, assistance to states, and timely/decisive action by the international community. Collective action is mandated over unilateral action.

Humanitarian Intervention

Humanitarian intervention occurs when a state intervenes in the affairs of another state when that state is committing human rights abuses against its own citizens. The UN Charter does not expressly provide for the use of force in the context of humanitarian intervention. Yet, the Charter also does not deny it altogether, even with the general prohibition on the use of force. The Charter wants to strike a balance between complete prohibition and free license the use of force, collective measures and unilateral action.

Yugoslavia v. Belgium. When NATO intervened in Kosovo, Yugoslavia later challenged the action as being against international law in violation of Article 2(4). Only Belgium asserted that there was a right to humanitarian intervention as well as an argument of collective self-defense—they argued that the conflict was upsetting international peace and security (refugees flowing into their nations and they could end up starting their own rebellions to assert self-determination rights). There was also a potential argument of anticipatory self-defense (same reasons as above with the rebellions) and consent (if Kosovo could be seen to be an autonomous nation asking for the help of these other nations). The US and others merely cited their concerns about the people and the typical justifications of legal precedent and general security. Four responses to the intervention have emerged:

There can be no use of military force to respond to human rights atrocities unless it is authorized by the Security Council or unless it qualifies as self-defense. This is the status quo (Russia and China endorse it).

Military intervention on humanitarian grounds is technically illegal but it is both morally and politically justifiable. Because of the background and because of its limited use only in extraordinary circumstances, such intervention would be unlikely to be condemned. This is the excusable breach approach.

Customary international law has evolved to allow humanitarian intervention. This is an argument of legality.

There is an absolute right to humanitarian intervention. There is reluctance to recognize this right absent a Security Council Resolution.

UNIT VIII: JUS IN BELLO—LAWS OF WAR (IHL)

The Law of The Hague governs the permissible means and methods of war while the Law of Geneva governs the rules for prisoners of war, war victims, civilians, and soldiers and land and sea—this includes protection of enemy civilians in occupied territory, the inhabitants of enemy territory, and other protected civilians.

The Additional Protocols of 1977 encompass the information in the above sets of law and are more purposeful for uses of this class. Additional Protocol 1 governs international armed conflict. This Protocol is controversial and has not been endorsed by the United States although most of its provisions are customary.Additional Protocol 2 governs non-international armed conflict.

There are four Geneva Conventions. Two of them are for wounded soldiers/sailors. There is one for prisoners of war. There is a fourth for civilians.

Four Principles of the Laws of War(1) Necessity. Can only inflict harm that is necessary to achieve military objectives. It does

not permit cruelty or superfluous actions.(2) Distinction. Cannot target civilians or civilian objects. (3) Proportionality. Realizes that civilian casualties will occur and says that these deaths are

ok when the military advantage is significant, and where the collateral damage is not excessive to the military advantage to be gained.

(4) Humanity. Must seek to minimalize the damage to civilians.

There is the idea that the laws of war must be applied equally—they are to be applied regardless of whether the jus ad bellum laws have been violated. Belligerent reprisals i.e. if you torture my POWs I’ll torture yours have been highly disfavored in modern times. The idea now is that the right of the individual cannot be violated on these grounds.

The US and UK believe that they have the right to reprisals.

The Law of The Hague forbids the use of weapons “calculated to cause unnecessary suffering;” attacking undefended towns; poisoned weapons; destroying enemy property unless “demanded by the necessities of war,” etc.

Soldiers are afforded “combatant’s privilege” which allows them to lawfully kill enemy soldiers and destroy property where this would otherwise be illegal.

Common Article 2 of the Geneva Convention

“…the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

It therefore governs all international conflicts—it is not triggered when a conflict arises between a state and a non-state actor.

Common Article 3 of the Geneva Convention

“ In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for. 

The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

This article addresses conflicts that are not international, occurring in the territory of one of the parties to the Convention. The Geneva Conventions don’t apply to these conflicts, only Common Article 3 does. There is no good agreed-upon definition of “non-international armed conflict.”

NATO Bombings of Yugoslavia. The Court reviews the effects of the NATO on the environment and decides that there must be a substantial military objective to justify causing damage to the environment. The greater the target, the more collateral can be justified. In any case, the collateral damage must be minimized. As to damage to civilian property, attacks not aimed at military objectives and causing disproportionate civilian harm can be deemed to be criminal acts. The criminal mental state required is either intentionally or recklessly, not merely negligently. Precaution must be taken as to the weapons chosen, verification of the legitimate military objectives, and minimization of civilian property damage. The Convention requires the military to distinguish between civilian persons and objectives on the one hand with military objectives on the other [Article 48 of AP 1].

In Article 52(2) of AP 1, military objective is defined as an object of destruction, capture, or neutralization of which will offer a definite military advantage. Those objects must also make an effective contribution to military action through nature, location, purpose, or use.

There is some debate as to whether the current definition of military force is sufficient to keep up with the changing realities of war.The principle of proportionality requires there to be an acceptable relation between destructive effect and the advantage gained. The general rule is that where individual, legitimate attacks on military objectives result in a cumulative set of death or damage to civilians, the individual attacks are still deemed to be legitimate.Military objectives cannot include civilians, civilian objects, or civilian morale. A borderline case is that of the media—media is deemed to be a legitimate military objective if it is operating as a part of a command, control, and communications (C3) center [Yugoslavia].

Remember that you must distinguish the objective (a bank, for example) from the civilians that may be present there. The bank itself can be a legitimate military objective even if civilians work there (imagine that it is targeted at night when no is working).Soldiers are always legitimate targets. Period. No matter if they’re sleeping or playing soccer or what. They are legitimate to attack as long as hostilities continue. The only exception is if a soldier is incapacitated and surrenders. These persons are to be captured, provided with medical attention, and then detained until the end of the conflict.

Article 35(3) of AP 1 provides that methods or means of warfare intended or expected to cause “widespread, long-term, and severe damage to the natural environment” is prohibited.

Article 43 defines combatants as members of armed forces that have a right to take direct participation in hostilities. This right protects combatants for being tried for the act of taking part in the hostilities in and of itself. Unless the combatant is charged with a war crime, the combatant is to be held as a prisoner of war (POW).

Article 50 of Additional Protocol 1 states that anyone who is not a combatant is a civilian. When in doubt if the individual is a civilian, you must assume that they are a civilian. Article 51 declares that civilians must be protected—this precludes them from being the object of an attack [Article 51(2)] or the victim of reprisals [Article 51(6)]. Article 57(1) requires military forces to take care to minimize harm and spare the civilian population.

Civilians enjoy these protections “unless and for such time as they take a direct part in hostilities” [Article 51(3)].

Laws and Customs of War on Land, Annexed to Geneva Convention IV

Art. 46. No confiscation of private propertyArt. 47. No pillagingArt. 52. No demand of requisitions and services except for the needs of army occupation and contributions should be paid for with cashArt. 53. Movable property and appliances seized by the army must be returned and compensation made when peace comesArt. 56. Municipal property, and property of religious institutions, charity, education, and the arts and sciences is deemed private property that cannot be seized, destroyed, or willfully damaged subject to legal proceedings if done

Geneva Convention IV: Occupied Territories

Occupation begins when the government of the occupied territory is no longer able to exercise its authority and the attacker is in the position to impose effective control over the

area (not necessarily all areas must be under control). Whether or not there is control is a question of fact.

The mere presence of troops in a country does not mean there is an occupation. There can still be some resistance within the territory so long as the OP has some control. OP has a duty to maintain law and order; it must allow delivery of aid and relief if it is incapable of providing sufficient food, care, water, and medical treatment to civilians. Religious and cultural practices are to be respected as long as they do not incite violence. No civilian may be forced to perform political, judicial, or executive functions. The OP can force the territory to pay for the occupation and can control all commercial transactions as long as it leaves the existing tax structure intact.

Occupation is not a means of acquiring territory; it is temporary administration by one country of a territory that does not belong to it—usually after a war or other conflict.

An OP is not supposed to come in and reorganize the entire structure of the government of the occupied territory.

Art. 49. No forced deportations or transfers of protected persons from occupied territory unless for evacuation purposes. Evacuated persons must be provided for and returned home as soon as hostilities end.Art. 50. Occupying power is to assist in the proper working of children’s care and educational institutions. The OP is also not allowed to hinder preferential food rationing for children, pregnant women, and mothers of children under age 7. Art. 51. The OP cannot compel conscription or force protected persons to work for them (unless the person is over age 18 and even then they cannot work in the armed services or the planning of military operations). Art. 53. No destruction of private propertyArt. 55. OP has to supply food.Art. 56. OP has to maintain minimum public health facilities and services (medical personnel, hospitals).

UNIT IX: INTERNATIONAL HUMAN RIGHTS LAW

Human rights are concerned primarily with the right of individuals to certain protections and freedoms. It is the duty of the international community to ensure these protections are held—erga omnes rights. These rights are due to all persons within the territory of the state whether or not these persons are citizens.

When analyzing human rights obligations, first look to the source of the right. Does the source mandate the rights specifically and suggest that they are required (ICCPR)? Or is the source more aspirational, only mandating that states take affirmative steps to achieve the stated rights (ICESCR)?

Human rights, as opposed to IHL, apply at all times, in war and peace. Do the two exist concurrently or does the one displace the other?

Article 55 of the UN Charter provides for promotion of the well-being of people with respect to their standards of living, economic, social life, health, and freedoms without distinction as to race, sex, religion, and language. Article 56 allows for the undertaking of unilateral and multilateral action to achieve Article 55.

The Universal Declaration on the Rights of Man (1948). This is a nonbinding document that interprets these UN provisions by spelling out definitions of human rights and freedoms. It is internationally recognized.

ICCPR and ICESCR. These are international treaties that are meant to make the provisions of the Universal Declaration on the Rights Man into binding agreements. The ICCPR covers civil and political rights while the ICESCR covers economic, labor-related, and social/cultural rights. The US has ratified the ICCPR but not the ICESCR.Parties to the ICCPR submit periodic reports to an oversight committee for review. If the parties so choose, under Article 41, they can also submit complaints to the committee regarding specific state failures to uphold their duties. The ICCPR provides that in addition to Article 41, all parties have an interest in compliance with these rights which are deemed erga omnes.

Convention on Prevention and Punishment of Genocide (1951). US ratified in 1988. Article 2 of this document defines genocide as any number of acts done with intent to destroy a national, ethnic, racial, or religious group by (1) killing members of the group (2) causing serious bodily or mental harm to them (3) deliberately inflicting conditions of life designed to physically destroy the group (4) imposing measures meant to prevent their childbirth or (5) forcibly transferring the group’s children to another group. Article 3 criminalizes commission of, attempt of, public incitement of, conspiracy to commit, and complicity in genocide. This document has been ratified by 141 nations.

Convention against Torture (1987). US ratified in 1994. The document provides that no exceptional circumstances (war, political instability, or other public emergency) justifies the use of torture or inhumane, degrading treatment [Article 2(2)].

Convention on Elimination of Racial Discrimination (1963). US ratified in 1994. This treaty creates an obligation to eliminate racial discrimination in all forms and to guarantee equality before the law without respect to race, color, national origin, or ethnicity. It has been ratified by 174.

Convention on Elimination of Discrimination against Women (1981). US has signed but ratified.

Convention on the Rights of the Child (1990). US has signed by not ratified this treaty. Rights include the freedom of expression, religion, access to information, adoption, standard of living, health care, education and criminal punishment. It has been ratified by 193 nations.

Convention on Refugees (1951) and Protocol (1967). A refugee is one with a well-founded fear of being persecuted by reason of race, religion, national origin, social group, or political opinion, who is outside of the country of his nationality (or who has no nationality but is outside of the country of his former residence) and is either unable or unwilling to return due to his fear [Article 1(A)(2)].

The UN Human Rights Council is headed by the Human Rights Council (formerly the Human Rights Commission). It is empowered to examine, monitor, and publicly report on human rights situations. It cannot impose legal obligations on states but it does adopt resolutions.

The Restatement lists the following as customarily accepted violation of international law when practiced, encouraged, or condoned by any state: genocide; slavery or slave trade; torture or cruel, inhumane, degrading treatment; murder or forced disappearance; prolonged arbitrary detention; systematic racial discrimination; or a consistent pattern of gross violations of internationally recognized human rights.

There are three methods of enforcing human rights:(1) Public shaming through publication of human rights reports and investigations and

the Human Rights Council(2) Article 41 allows a state to bring suit against another state (this method has never

been used)(3) Protocol allows for individuals to bring action against states (more than 1000

complaints)

The US and International Human Rights

The US has a somewhat uneasy relationship with human rights. It is often in awkward position of vocally and militarily encouraging other nations to comply with human rights that it seems unwilling to uphold itself. This is evidenced by the US reluctance to ratify treaties and the annoying habit the nation has of issuing a ton of reservations to treaties as well as the declaration that signed treaties cannot be self-executing.

There are five kids of RUDs:

(1) Substantive Reservations—these state that there is no consent to certain provisions all together. These are rare and are often based on constitutional conflicts or on policy/political disagreements.

(2) Interpretive Conditions clarify the scope of consent.(3) Non Self-Execution Declarations merely state that substantive provisions are not held

to be self-executing. It gives domestic law a chance to be changed first but usually the US will just internalize these provisions and not ratify them

(4) Federalism Understandings state that the law is to be implemented by the US government.

(5) ICJ Reservations state that the US will not submit to ICJ jurisdiction.

Derogations

Article 4(1) of the ICCPR allows a state to temporarily derogate from its obligations during a state of emergency. The state must face a public emergency that threatens the life of the nation and the state must officially announce that there is a state of emergency, as provided for in the state’s constitution and domestic law. The derogation must be strictly required by these circumstances. Derogations cannot rest on discriminatory grounds of race, color, sex, language, religion or social origin.

Generally, such a need will only arise in an armed conflict.Any derogation must be strictly limited to the necessities of the situation with respect to its duration, geographic reach, and material scope. The principle of proportionality is also in effect. The state must be able to justify both the declaration of the state of emergency and the measures taken as derogation of ICCPR obligations.

Article 4(2) prohibits derogation of the right to life; the prohibition of torture; prohibition of slavery; imprisonment for inability to fulfill a contractual obligation (debtor’s prison); legality of criminal law (i.e. no ex post facto laws); recognition of all persons as equal before the law; or the freedom of through/religion. The same is true for the death penalty if the state is a party to Optional Protocol 2.

Also, derogations cannot violate other international legal obligations (especially IHL), cannot be defined as a crime against humanity under the Rome Statute, and cannot contravene the prohibition on hostage-taking.Even when derogations are legally made, the state must make reparations to any affected persons under Article 2(3).

Finally, upon derogation a state must immediately notify the international community of the derogation through the Security Council. Additional notification is required if the scope and duration of the derogation change. Notification should also be made upon termination of the derogation.

The US believes that the ICCPR only applies territorially. Otherwise IHL would apply only.

Lustig-Prean and Beckett v. UK (1999) ECHR. The petitioners were dismissed from the British Navy after it was discovered that they were gay. The court ruled that this was a violation of the Article 8 right to privacy. The government may only interfere with this right to privacy when to do so in accordance with the law and is to uphold a legitimate aim that is necessary in a democratic society. The government’s legitimate aim was national security, supposedly endangered by allowed gays to serve based on evidence obtained through surveys of troops that showed negative attitudes toward gays. The court believed that due to the serious nature of the interference with the right to privacy (investigations, questioning about sexual activities) a particularly weighty justification would be required. This was not met here. There was no evidence that openly serving gays would actually negatively impact the functioning of the navy, the discharge of the petitioners has a profound effect on their career trajectories, and the prejudice of other servicemen is not a valid reason to exclude them.

A v. Secretary of State (2004) English House of Lords. England considers whether there was a state of public emergency sufficient to justify suspension of laws protecting citizens from detention. The state was detaining foreign nationals without charging them or deporting them because they were either unwanted by their home states or could not be deported because they faced torture there. 9/11 was enough of a major event to constitute a public emergency but the application of the laws enacted discriminated solely on basis of nationality and race so this was not a justifiable derogation. Derogations cannot be discriminatory, ineffective, or disproportionate.

Note that this same law would’ve been upheld if it had applied to UK citizens as well as foreign nationals. Also note that there is a lot of deference given to governments to determine if there is a state of emergency (I mean 9/11 didn’t even happen in the UK…)

Roper v. Simmons (2005) SCOTUS. The court declares that capital punishment of a minor is unconstitutional under the 8th Amendment. They cite a lot of international laws to justify this conclusion and note that the practice is inconsistent with the Convention on the Rights of the Child—only the US and Somalia have yet to ratify this treaty.Dissent: No way can we rely on international law to dictate our domestic policies.

UNIT X: THE WAR ON TERROR

Terrorism used to be a crime but it has recently been drawn into the theater of war, which poses the question: what laws govern these attacks?

Israel was the first to declare a war on terror in 2000. The US followed in 2001-2002 by declaring the first global war on terror.

The question of whether you can declare a war on terror is first a question of whether it falls under Chapter 7 of the UN Charter. Can there be an armed attack by a non-state actor?UN Resolution 1368, issued on September 12, 2001, states that the UN “expresses its readiness to take all necessary steps to respond to the terrorist attacks” of 9/11. This resolution stops just short of giving the go ahead to use force. Of course the US does anyway and no one really condemns this.

If you accept that this conflict can be deemed a war, then the question next becomes whether it is an international or non-international conflict.

Can these persons be lawfully detained? If you accept that we are at war then yes they can—there is a clear right to detain “combatants” until the end of hostilities.

There is a question of when that would be for the war on terror…and the question of whether these persons are combatants.

Hamdan v. Rumsfeld (2006) SCOTUS. Court reverses a lower court’s ruling that detainee Hamdan can be properly tried in a military court that does not adhere to the laws of war and charges him with an offense (conspiracy) not recognized under the laws of war. There are three kinds of military courts: (1) those used in place of civilian courts during times of martial law (2) those established during occupation of an enemy territory as part of a temporary military government and (3) those convened during or incident to war in order to try enemies who have violated the laws of war. The government argued that this was the latter but it didn’t meet the four preconditions for convening such a body: (1) must be called by an active commander (2) the charged offense must have been committed during the war (3) the charge must be a violation of the laws of war (4) the persons charged must be enemy forces guilty of the crime. Even if Common Article 2 doesn’t apply here because this isn’t an international armed conflict, Common Article 3 at least does and this Article is violated because this is not a “regularly constituted court” as the Convention requires [Article 3(1)(d)].

SCOTUS defines a non-international armed conflict as any conflict that is not an international armed conflict.After Boumediene anyone detained at Guantanamo has the right to habeas review in the DC courts.

Palestinian Society v. Israel (2005) High Court of Justice—Israel. The question is whether Israel’s attacks against terrorist organizations, which sometimes resulted in civilian casualties, were lawful. Are terrorist combatants or civilians or a new third category of unlawful combatant? Can these terrorists be lawfully attacked? Were targeted killings that resulted in civilian deaths proportional to the military advantage? The court believes that the laws of war still apply—this is an armed international conflict so it falls under Common Article 2. However, these terrorists are not combatants because Article 4 of Geneva Convention III requires combatants to do several things that these terrorists don’t do—namely, wear emblems that

are visible from afar and adhere to the laws of war. The law defines non-combatants as civilians but DPH civilians don’t get the same protections as other civilians. Court rejects the new category of unlawful combatant because this would create a black hole of persons who receive no protections as soldiers or as civilians. DPH civilians enjoy protections “unless and for such time as they take direct part in hostilities.” Taking part in hostilities means using weapons, gathering intelligence, or preparing for hostilities. Direct part in hostilities does not include selling goods to the enemy or failing to take action to prevent enemy activities—the person must essentially serve the function of a combatant and mere membership in a terrorist organization is not enough. For such time is seen as a broader concept than merely the moment of the attack—the DPH civilian can lose protections by engaging in a series of attacks as well. The court cautions that there must good intelligence to support a DPH classification before suspected DPH civilians are targeted—these persons should nevertheless be tried and arrested if possible and a thorough investigation should take place afterwards to ensure that attack was correct. Any collateral damage to civilians must be proportionate.

Geneva Convention III defines combatants as having the following characteristics (1) commanded by a leader responsible for subordinates (2) wear a fixed emblem that can be recognized at a distance (3) carry arms openly (4) adherence to the laws of war

UNIT XI: INTERNATIONAL CRIMINAL LAW

Crimes of international criminal law were first recognized in the Nuremburg Trials after WWII. The defendants, top Nazi commanders, argued that there was no law against waging a war of aggression at the time they started this war and that in addition, international criminal law doesn’t apply to individuals. Citing several international agreements, like the Kellogg-Briand Pact, which condemned resort to war, the tribunal found that the perpetrators knew their acts were illegal and that it was only logical that these laws would be upheld by application to individuals, as principle at least as old as Quirin.

International crimes apply to individuals instead of states. They have been found to exist where there is a violation of international customary rules including treaty provisions. These rules are thought to be valued by the entire international community so there is an international interest in prosecuting and repressing these crimes.

International crimes include genocide, war crimes, crimes against humanity, torture, aggression, and extreme forms of international terrorism.

Genocide

The 1948 Genocide Convention has 141 parties, including the US, and is seen as binding customary international law even on non-parties.

Article 6 of the Rome Statute defines as genocide as“(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.”

Prosecutor v. Krstic (2004) ICTY. Krstic was a commander in the Serbian army that carried out the massacre at Srebrenica. He was tried for genocide of Bosnian Muslims but was found to be guilty only of aiding and abetting the genocide. First those killed had to be deemed a “substantial part” of the group itself—the Court believed it could be based on factors like the numeric size of the group, their emblematic significance, and the nature of their essentiality to survival of the group. There was evidence that the group killed constituted nearly the entire male Bosnian population in that part of the country. Because men were targeted this affected the ability of the group to procreate. As to intent, evidence was only sufficient to prove knowledge of the attacks and a failure to act to prevent it rather than a personal intent to carry out the genocide. Without specific intent, Krstic could not be guilty of genocide but could be guilty of aiding and abetting.

Crimes against Humanity

These crimes arise under customary international law. The Nuremburg Tribunal defined them as murder, extermination, enslavement, deprivation, and other inhuman acts committed against a civilian population before or during war OR persecution of political, racial, or religious groups in connection with crimes of genocides, war crimes, or crimes against peace. They are defined essentially the same way in Article 7 of the Rome Statute.

Prosecutor v. Kunarac (2002) ICTY. To constitute a crime against humanity there are several factors. (1) There must be an attack—any mistreatment of the civilian population, which need not be part of a larger armed conflict and can take place at any time. (2) Acts of the accused must be part of the attack—a plan or policy is required but it need not the personal plan or policy of the accused. The acts of accused also need not be committed during the attack; the acts can precede the attack so long as they are not too remote. (3) The attack must be directed against the civilian population—it need not be the entire population of the area but civilians must be the primary object of the attack. This can be proved based on evidence of the means and method of the attack, status of the victims, attempts to comply with the laws of war, nature of the crimes committed, resistance to the assailants (if any), and the discriminatory nature of the attack. (4) The attack must be systematic or widespread—systematic refers to the organized nature of the attacks and the improbability of their random occurrence; widespread refers to the large-scale nature of the attacks and the number of victims. (5) The accused must be aware

that his acts meet the above requirements—mens rea requires intent to commit the underlying offense such that the accused must at least take the risk that his actions are part of such an attack although knowledge of the details is lacking.

Command responsibility differs from political leaders. Knowledge to good reason to know is presumed when the person is in the military.

War Crimes

These are “grave breaches” of the Geneva Conventions to include willful killing, torture, inhuman treatment and experimentation, great suffering or serious bodily harm, extensive destruction of property not justified by military necessity. Additional Protocol 1 added protection of civilian populations, indiscriminate attacks, attacking non-defended zones, apartheid, unjustifiable delay of repatriating POWs. This contained in Article 8 of the Rome Statute.

Aggression

This crime has yet to be defined by the International Criminal Court. The current proposed definition is the planning, preparation, initiation, or execution of an act of aggression which by its gravity and scale constitutes a violation of the UN Charter and carried out by a person effectively exercising control over or the direct military or political action of a state.

Torture

Article 1 of the Convention on Torture defines torture as any act by which severe mental or physical pain and suffering is inflicted for purposes of obtaining information, punishment, intimidation or coercion, or any discrimination reason when such an act is done by an official or person acting with the consent or acquiescence of a public official. It does not include pain and suffering arising from lawful sanctions.

The International Criminal Court

Article 12 allows jurisdiction for states that are a party to the Rome Statute or in the case or a referral if one or more of the following states is a party to the Statute or has accepted the jurisdiction of the court

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2.         In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;(b)     The State of which the person accused of the crime is a national.3.         If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. 

Article 13 limits jurisdiction to those cases referred by a state party, referred by the Security Council, or when the Prosecutor opens an investigation.

The principle of complementarity further limits the jurisdiction of the court to those situations in which the state is either unable or unwilling to carry out a good faith prosecution of the event.

The ICC has currently opened cases in DRC, Uganda, CAR, and Sudan. Investigations have been opened in Kenya and Libya.

ICC Jurisdiction

First ask if there is subject matter jurisdiction—war crimes, genocide, crimes against humanity.

Second, ask if there is personal jurisdictionIs the accused the national of a state that is Party to the ICC?Has the state consented to jurisdiction?Did the acts occur in the territory of a state that is party to the ICC?Has the case been referred by the Security Council?

Third, check the date—jurisdiction only exists for crimes occurring on or after July 1, 2002. The crimes must also be committed after a state becomes a party to the ICC, unless the state consents to retroactive jurisdiction.

Fourth, does the issue of complementarity apply—has the state investigated the situation before?

Fifth, is the crime to the level that the ICC would prosecute, it only looks at the worst crimes.

There is no statute of limitations for crimes that can be submitted before the ICC.

There is a question of whether an arrest warrant can be revoked once it has been issued if it appears that the state is investigating in good faith (issue of complementarity). Does complementarity apply after several years?

Jurisdiction does not attach based on the nationality of the victim!

Consent-based jurisdiction cannot be limited to specific crimes committed by specific persons. The ICC gains consent over all incidents involved in the larger act.

Note that the US has made at least 100 Art. 98 agreements. These are bilateral agreements that countries will not submit US nationals to the jurisdiction of the ICC.