Poli Sci 316 Exam 2

Front 1

Range of Sovereignty: Categories of Territory

Back 1

1. Sovereign Territory
2. Trust Territory
3. Terra Nullius (belonging to no one)
4. Res communis (incapable of being owned-avail to community as whole)

Front 2

Historical Methods of acquiring sovereignty

Back 2

1. Occupation
2. Conquest
3. Cession
4. Prescription
5. Accretion

Front 3

New Methods of Acquiring/disposing of svereignty

Back 3

1. Renunciation
2. Joint Decision
3. Adjudication

Front 4

Sovereign Territory

Back 4

States possess the right to control land located within their territorial boundaries.

Front 5

Trust Territory

Back 5

Land that is not subject to any territory because of some special status (no longer exist)

Front 6

Terra Nullius "empty land"

Back 6

As a condition for establishing sovereignty over a territory
*A state must prove that there was no other state legally controlling that territory
*Legitimated colonialization
*i.e. '85 Treaty of Berlin declared Africa "terra nullius"-->colonialization of Africa that superimposed a new map over indigenous cultures, dividing groups and setting stage for conflict.

Front 7

Res Communis

Back 7

*Incapable of ever being legally owned or controlled
*It belongs to no-one and must remain available for all to use
*all nations must have access to: high seas & outer space,

Front 8

Disputes/dominion over land

Back 8

States possess the exclusive right
*to the use of its territory
*to exclude other nations

-Acquiring territory only comes into play
*when the territory itself is disputed
*or changing possession.

Front 9

Occupation of Territory

Back 9

-Bruges Declaration:
-occupation does not give territorial sovereignty to the occupying power (i.e. Israel conflict-Iron Wall)
-occupying power:
1. can only dispose of resources to the extent necessary
2. assumes responsibility to maintain order
3. has obligation to meet basic needs of population
4. obligation to respect inhabitants' rights as guaranteed by int'l HR law

Front 10

ICJ (2004 Ruling): Legal Consequences of Construction of Wall in Occupied Palestinian Territory

Back 10

Court:
1. can't accept view that it has no jurisdiction b/c of certain "political" character of a question posed
2. court can't refuse the judicial task of assessing legality of state's actions under int'l law
3. Therefore, court CAN give advisory opinions requested by GA.
Argument FOR the wall:
1. Reduced # of suicides
2. More important to protect Israeli lives from Palestinian Terrorism than the every day difficulties for Palestinians' imposed by wall. Saving Lives must come first.

Front 11

ICJ: Legal Consequences of Construction of Wall in Palestine:
Background, Questions, Reasoning

Back 11

Background: GA requested advisory opinion (it has this power)

Questions:
1. Does ICJ have jurisdiction to give opinion?
-->Yes. Int'l matter, thus, of concern to UN.
-Had enough evidence
-No reason not to
-Might peacefully solve conflict
2. What were the “Legal consequences” of the construction of a wall in the Occupied Palestinian Territory. . . . Use of the term “wall”??
--Israel had "occupying power" status
--Wall=correct term, used by GA
3. What was applicable law?
--UN Charter GA res. 2625 Illegality of any territorial acquisition from use of force - Right of peoples to self‑determination.
--Int'l Humanitarian Law: Hague and Geneva conventions

Reasoning:
--wall's route expresses illegal measures taken by Israel
--risk of altering demographic, impedes Palestinians' right to self-determination, freedom of movement, etc.

Conclusion:
1. Impede liberty of movement of inhabitants of OPT (Occupied Palestinian Territory)
2. Impede peoples' rights to adequate std. of living

Ruling:
1. Wall's construction is contrary to Int'l Law.

BECAUSE:
1. Infringes on Palestinians' rights
2. Israel violates many aspects of IHL and HR
3. Israel can't rely on self-defence

BUT:
-Later, smaller fence on diff. route was built that "balanced" security w/ human rights and inhabitants' needs

Front 12

Conquest

Back 12

Forcible acquisition of territory

After the U.N. Charter outlawed the use of force in 1945.
Thus, conquest is no longer a reasonable form of acquisition of territory.

Front 13

Cession

Back 13

Transfer of territory

-The ceding Sovereign has to have effective control of the territory it is ceding.

Front 14

Prescription

Back 14

-One state may derive a title to certain territory by occupying some part of it without objection.

-objection must occur within a reasonable frame of time

Front 15

Accretion

Back 15

Natural resources, rivers, islands

Front 16

List of Types of Territorial Acquisition

Back 16

1. Occupation
2. Conquest
3. Cession
4. Prescription
5. Accretion

Front 17

Critique of Types of Territorial Acquisition

Back 17

Chinese critique: Western, European, Christian.

1. “civilized people” are only those so decided by the European powers.
2. Int'l law characterizes forcible conquest as peaceable cession.

Overall, international law is for the powerful, and that international law justifies what is otherwise simple conquest and occupation.

Front 18

3 New Modes of Territorial Acquisition

Back 18

1. Renunication
2. Joint Decision
3. Adjudication

Front 19

Renunciation

Back 19

A nation may relinquish its title to its territory.

i.e. 1947 Italy renounced title (previously obtained by conquest) to see its territories in Northern Africa.

Front 20

Joint Decision

Back 20

After each world war, victorious states claimed and disposed of certain properties defeated states had captured.

Front 21

Adjudication

Back 21

Decided by a judge or a tribunal, through an international agreement that authorizes a tribunal to do so.

Front 22

Problems with the Law of the Sea as it developed historically:

Back 22

-Not representative of newly decolonized states’ interest

-States with more advanced technology reaped greater benefits from fishing, exploitation

-freedom of developed, imperial nations to continue to exploit natural resources and economic superiority

-1982 U.N. Convention on the Law of the Sea entered into force in 1994

Front 23

Importance of regulating the Seas

Back 23

1. Resources:
-control climate, weather, shipping, transportation, recreation, tourism, minerals, food, petroleum, etc.

2. Threats
-threat to oceans from land-based activities such as industrial effluent, municipal sewage, runoff, exploitation of fish stocks

3. mining, spying, and navigation a significant dimension of its security practices (US, of course)

Front 24

Int'l Law of the Seas, basic principles

Back 24

“ The farther away from the coast that the coastal state desires to act, the less a state may impede the conduct of another state.”

Yet, states must interact over that control.

Front 25

Internal Waters (IL of the Sea)

Back 25

States have the sovereign right to control its bays, rivers and other internal waters
--bays=both internal and international

--State has the absolute right to control the internal waters contained within its ports
but if a crime occurs while a ship is in port: the question of which laws of which state is still subject to negotiation

Front 26

Territorial Sea; UNCLOS of 1982

Back 26

Historically, imperial nations claimed the seas for themselves.

UNCLOS: A coastal state exercises sovereignty over the area of the sea that extends 12 nautical miles from its shoreline

-state must chart this area to provide navigational warnings

Front 27

"Innocent Passage" as defined by UNCLOS (1982)

Back 27

navigation through territorial sea with the purpose of:
-‘traversing the sea without entering internal waters’
OR
-proceeding to or from internal waters”

"Innocent"=Passage that is not prejudicial to the peace, good order or security of the Coastal state.
"prejudicial/poses threat"=Military exercise, spying

Front 28

High Seas

Back 28

International waters
80% of life forms
71% of the Earth’s surface

The demarcation of the high seas from the territorial waters is the 12 nautical miles

-Once absolute, now divided into zones (now more controlled by coastal states)

Front 29

Contiguous Zone

Back 29

Zone (24 miles) in which the Coastal states can exercise limited jurisdiction to enforce customs, fiscal, immigration or sanitary laws.

Front 30

Exclusive Economic Zone (200 miles)

Back 30

-200 mi from coast
-Now over 1/3 of all ocean space is subject to the sovereignty of coastal States.

Front 31

UNCLOS III

Back 31

-60s: concerns about environment
-70s: Resources should be governed by the international community, rather than coastal states
-80s: UNCLOS:

-limits coastal nations to 12-mile territorial sea
-establishes 200-mile EEZs
-requires nations to work together to conserve high seas fisheries
-establishes a legal regime for property rights in minerals in ocean floor
-Establishes a tribunal to decide cases regarding the treaty

**U.S. signed, not ratified

Front 32

Arguments for U.S. to sign/not sign UNCLOS

Back 32

1. U.S. economy depends on the oceans (oil, goods)
2. U.S. security and military operations depend on naval mobility.
3. Protect environment

Why not?
1. impedes sovereignty
2. doesn't reflect US econ. interests

Front 33

Why are treaties important?

Back 33

*Fundamental rules of interaction and agreement among states
*Establish mutual expectation
*Establish expectations of behavior
*Codify norms

Front 34

What is a treaty?

Back 34

international agreement concluded between states in written form and governed by international law
('69 Vienna Conv)

Front 35

Who can make treaties?

Back 35

*States
*International Organizations
(Vienna Conventions)

Front 36

What are the problems with treaties?

Back 36

*Issues of interpretation
*Clarity v. flexibility
*Vague concepts (force, allowable catch, recognition) v. precise

Front 37

Unequal Treaties

Back 37

-concluded as a result of force rather than negotiation
-Still considered valid, no less binding

(Lec 12 for example)

Front 38

Contemporary Classification of Treaties: Oral vs. Written

Back 38

*Vienna Convention on the Law of Treaties was drafted in terms of written treaties
*States can also incur international obligations based on oral agreements and exchange of letters

Front 39

Classification of Treaties: Bilateral v. Multilateral

Back 39

BILATERAL: establishes rights and obligations between two states and affects ONLY those 2 states--don't change int'l practice.

MULTI:
-3+ states
-often creates IOs
-codifies emerging or existing laws (evidence of existing state practice)

Front 40

Classification of Treaties: Lawmaking vs. Contractual

Back 40

Lawmaking:
*Creates a new rule of international law designed to modify existing state practice
*i.e: 1982 United Nations Law of the Sea treaty, NAFTA (b/c created the IO "NAFTA")

Contractual:
*An exchange or agreement
*‘mere contract’ and does not purport to change the law
e.g. NAFTA was also a contract because it governed the reduction of trade barriers to form a common economic market

Front 41

Classification of Treaties: Self-Executing vs. Declaration of Intent

Back 41

SELF-EXECUTING:
*expressly imposes immediate obligations
*Requires no further actions to impose binding obligations on its signatories
*Instantly incorporated into international law and the internal law of its signatories
*No need for further action by state

Declaration of Intent:
*States principles, sets forth stds of achievement
*Requires follow up: executive or legislative
*Individual State action before parties have legal obligations
*Bilateral treaties are usually self-executing
*Multi-lateral treaties are not usually self –executing

Front 42

Why are not all treaties self-executing?

Back 42

*Difference in political, military, economic obligations of each state
*Set goas
*Progressive: treaties will eventually be incorporated, continued regional and in-state negotiation of differences

Front 43

Treaty Formation

Back 43

6 Steps:
Negotiation
Signature
Ratification
Reservations (if any)
Entry into Force
Registration

Front 44

Treaty Negotiations (Step 1)

Back 44

-International organ (i.e. the UN) decides to investigate issue
-*GA resolves that the problem warrants an international conference
*State reps meet to discuss
-State reps: have full power, rep states, negotiate, etc. must be authorized otherwise have no authority (duh), present "documentary" evidence at beginning of conf.

Front 45

Questions of Force in Negotiation of Treaties

Back 45

1960s: unequal treaties decided unacceptable
*1969 Vienna: “Refrain from the threat or use of force” based on argument that force=illegal in UN charter, thus should be in treaty-making.

Front 46

Treaty Process-Step 2: Signature

Back 46

*State and any participating IOs are invited to sign
*Signing = general wording of the articles in the final draft are agreeable
*States that did not participate in the drafting can still accede to the treaty

Front 47

Treaty Process: Step 3: Ratification

Back 47

***Determined by each State’s internal laws on treaty acceptance

*provides a time for states to bring into alignment the domestic law and the treaty

Front 48

Step 4 of Treaty-Making: Reservations

Back 48

-"conditional consent"
-the state’s unilateral variation from the language of the treaty
-allow a state to modify, exclude, the legal effects of its obligations
-the state is not bound by what it identifies as objectionable
-If acceptable to other parties, limits the scope of the reserving state’s general consent

*Bilateral treaty: a reservation is generally not lodged, because it essentially means a new proposal for the treaty

Front 49

Why are treaty reservations allowed?

Back 49

Encourage broader participation and acceptance

-negotiation of international law and international politics
*Occurs after the writing of the treaty

**example: UN Convention on Genocide** (See Lec. 12)

Front 50

Step 5 of Treaty Process: Entry into Force

Back 50

-usually when a minimum number of states have ratified
-states that have not ratified treaties are not bound by that treaty even when it has entered into force

Front 51

Step 6 of Treaty Making: Registration

Back 51

-they have to be sent to the appropriate institution

Front 52

Treaty Performance: Observance

Back 52

Good Faith Performance (pacta sunt servanda): States must not act in a way that frustrates the purpose of the treaty that it has signed or ratified.

-States may not pass subsequent internal legislation that is inconsistent with those obligations

Front 53

Treaties: Change in Circumstances

Back 53

No clear consensus as to what allows for termination of treaty.

Front 54

Treaty Termination/Suspension

Back 54

1. Express Consent
-terminate on their own terms or contain provisions that allow for notification of termination
-or states withdraw
2. Implied Consent
-When a new treaty silent about the continued validity of a prior treaty on the same subject, termination or suspension can be implied

3. Failure of compliance: all states party to the treaty unabashedly ignore it
*If customary law evolves that supercedes an existent treaty

4. Material Breach: One party’s breach may allow other parties to consider the treaty as either suspended or terminated.

5. Impossibility of Performance:
Submerge of an island that is the object of a treaty relationship

Conflict with preemptory norm (a just cogens norm)
-A universal law that no state could deviate

**outbreak of war does not automatically terminate treaty obligations

Front 55

Is there a jus cogens norm against torture?

Back 55

**jus cogens norm: universal law that no state could deviate, recognized as one from which no derogation is allowed

**YES, universal jurisdiction over torture, BECAUSE:
"the torturer has become, hostis humani generis, an enemy of all mankind."

Front 56

United States Treaty Practice

Back 56

*Treaty vs. Executive Agreement:

-Pres. can make treaties w/ 2/3 of Senators approval.
-Executive agreement power: undertaken by President alone without consent of the Senate

-2 types of exec.agreement evolved:
1. Congressional-executive agreement: complete alternative to treaty, pres. seeks approval of an agreement by joint resolution in both houses of Congress: becomes law of the land.
2. Sole-executive agreement: incurs int'l agreement (undertaken by president alone)

*Conflict Resolution: not explicitly in the constitution (regarding int'l law); only internal law

*Constitution prevails when conflicts w/ treaty

*Treaties and federal statutes=ON EQUAL FOOTING

Summary:
1) Constitution prevails over International Law
2) Statute and a bilateral status of forces treaty were on the same legal footing
3) Whatever is later (treaty or statute) trumps

Front 57

Arbitration: History

Back 57

*Customary practices developed by specialized tribunals in European medieval practices by int'l merchants

1918: Covenant of the League of Nations mandated that league members couldn't go to war if subject of their dispute had been subject to arbitration.
-League est. PCIJ, replaced by ICJ in '45

Front 58

Adjudication

Back 58

-Litigation uncommon b/c States reluctant to admit they've breached int'l law

Front 59

Early Conferences (Alternatives to war)

Back 59

'08-'18: Central American Court of Justice: first int'l court to address regional disputes.
-PCIJ: int'l court may encourage compliance w/ int'l law; series of bilateral treaties; 1st avail. to all nations; League could request advisory opinions; failed after WWII b/c not organ of League, US didn't ratify
-ICJ: States joining the UN=automatically parties to the Charter’s companion treaty establishing the ICJ

Front 60

Alt. dispute resolution: negotiation

Back 60

*completely controlled by the parties to the dispute

Front 61

Alt. dispute resolution: Inquiry

Back 61

*An objective third party conducts an inquiry and then provides an assessment

Front 62

alt. dispute res: Mediation

Back 62

*unlike the basic fact finding tool of inquiry
*it is commission as well as a process
-“Good offices” when states do not maintain diplomatic communication
-not binding, but third party can offer solutions
-intermediary (red cross)

Front 63

alt. dispute resolution: conciliation

Back 63

*Third Party dispute resolution in a more formalized setting than negotiation or mediation
*fact finding and resolution
*has no legal standing, concilator has no authority to seek evidence or call witnesses, usually writes no decision
*parties don't actually face one another in presence of conciliation (unlike mediation)

Front 64

Minitrial

Back 64

*Not a real trial
*Parties confront one another in a similar context and must verify their position vis a vis an expert in the field
*Relies on good will

Front 65

Arbitration: Ad Hoc v. Permanent

Back 65

Historically, ad hoc:
-After dispute arises, parties determine what and who will decide
*cons: Not having any procedure in place
Lack of consistency
Loss of time in resolving the dispute

*pros: flexibility
Tailored to specific issues/problems

---Permanent:
Cons:
*Not tailored to specific issues/problems
*Not flexible
Pros:
*Pre-established set of rules and procedures
*Predictability and stability

Front 66

Classification of Arbitration

Back 66

-formal means for settling dispute by 3rd party
-historically, ad hoc tribunals and parties were inter-state.

Front 67

Permanent Court of Arbitration

Back 67

*1899 Hague Peace Conference
*Still functions at the Hague
*Not a court; lawyers w/ expertise
*participating countries declined signif. since WWII and creation of PCIJ and OAU (Org. of African Unity)

Front 68

majority of contemporary arbitration is among:

Back 68

Private individual/corporation
Private persons/corporations/ and international organizations

Front 69

Mixed international arbitration

Back 69

state and private party (i.e. Algiers Accords: Iran-United States Claims Tribunal in 1981)

Front 70

Commercial ArbitratioN

Back 70

Arbitrates business disputes of an international manner

1. International Court of Arbitration of the International Chamber of Commerce
2. World Intellectual Property Organization-copyright, etc.
3. International Centre for Settlement of Investment Disputes-private investment

Front 71

ICJ: History

Back 71

1943: Four Powers: China, Soviet Union, United Kingdom, and the United States
1945: San Francisco meeting-
UN Charter + ICJ Statute:
-equal status
-judicial arm of the United Nations
-Share responsibility with the rest of the UN for monitoring observance of the Charter

Front 72

ICJ: UN Charter

Back 72

Charter tells Court's functions
-Statute tells procedures for submitting/resolving nat'l disputes

UN Charter:
-All member states are automatically party to the ICJ (93.1)
-Members promise to undertake to comply with the decision of the Court
**Security Council may undertake enforcement measures if this promise breached**
-SC can take action if state ignores ICJ's judgments (these usually don't happen)

Front 73

UN Trust Fund

Back 73

-broke as hayl=not much use of ICJ

Front 74

ICJ: Statute

Back 74

-15 judges elected by the UN GA and SC; 5 judges elected every 3 yrs for 9 yr terms
-Judges:
1. don't rep. their gov'ts
2. not nat'l delegates & thus can't be dismissed by their gov'ts for their opinion
-Court CAN vote to dismiss a judge, hasn't happened.

Front 75

ICJ: Functions and Limitations

Back 75

Function: Hear and determine cases involving interpretations and applications of the principles set forth in the UN Charter.
-Sources of Int'l Law=same; treaties, customary, history, scholarly writings, court decisions

Limitations:
-No police/enforcement mech.
-No jail
-Only a trial court (no fact finding facilities, judicial record, or previous legal reasoning to review)
-distance from the parts/people on which it is to rule
-Less cultural diversity
-***No judicial review on UN actions: while it has not done this, it is NOT PROHIBITED from doing so.***

Front 76

ICJ: Optional Clause-'Compulsory Jurisdiction'

Back 76

States do not have to submit their cases to the ICJ for dispute resolution, even though they're parties to the ICJ via the UN Charter/ICJ Statute.
--still can decide if they will or will not accept the Court’s jurisdiction.

ICJ HAS JURISDICTION WHEN:
**a state accepts the power over them in the specific circumstances addressed in the Declaration of Acceptance.**

-->smaller states more likely to accept w/ this clause. more flexibility.

Front 77

ICJ: Jurisdiction to determine Jurisdiction

Back 77

The ICJ does not have exclusive power to decide its own jurisdiction.

Leaves the ICJ powerless to act in particular circumstances

Reciprocity? States may have different degrees of acceptance of the ICJ’s jurisdiction and power.

Front 78

ICJ: Advisory Jurisdiction

Back 78

-Renders opinions when no state is party to proceedings.
-Court’s Statute invites States and IOs to provide info to assist in its advisory deliberations.
-No plaintiff/defendant, but state can be "absent" target of deliberations
-Can 'fill the gap' of ?s of int'l law.

-Who initiates adv. opinions? **GA, SC**

-ICJ: also can resolve conflicting aspects of Charter

Front 79

Chambers Option

Back 79

-Court may form chambers of 3+ judges to deal w/ particular cases
-i.e. border disputes

Pros:
-Judges may decide matters quickly
-States do not have to submit their cases to a full Court

Front 80

ICJ: Stare Decisis

Back 80

definition: once a legal point is decided, it is applicable to future cases involving the same issue.

Decisions legally bind only the parties in the immediate case, but court uses previous cases as reasoning.

Front 81

ICJ Assessment

Back 81

-Of 5 permanent SC members, only UK remains committed. None of those parties members of ICC either.

-Can judges really be impartial?
-Wealthy states vote for wealthy, poor for poor
-Utility? -does help progression of int'l law; decisions are implemented
-encourages states to file case
-info to int'l community
-historical body

Front 82

U.S. and the ICJ

Back 82

U.S. declared acceptance w/ these stipulations:
If the case was entrusted to other tribunals by distinct treaty obligations
If the case was within the domestic jurisdiction of the United States as determined by the United States
If the case arose under a multi-lateral treaty--unless all potential litigants were party to the treaty and all agreed to submission to the ICJ

-1985: terminated acceptance

Front 83

Khmer Rouge Tribunal

Back 83

-'75-'79: Khmer Rouge take control of Cambodia, oppress its peoples
-Took a long time to create tribunal b/c of Cold War, instability in country

Negotiations: '97-request tribunal
'98-UN SC considers an Int'l Criminal Tribunal for Cambodia (ICTC), but rejected by China

Documents:
'01: KRT Law-statute saying what crimes can be prosecuted
'04: UN-Cambodia agreement to est. KRT
'07-KRT Internal Rules-functions of criminal court

Hybrid Tribunal: Extraordinary Chamber of Courts of Cambodia (ECCC); informally, KRT. KRT=special chamber in Cambodian Court System; mix of Cambodian and UN appointed staff.

KRT's goal: prosecute "senior Khmer Rouge members and those most responsible" -->difficulties

Local perception:
-Cautious optimism
-Finding out truth
-Opposition-waste of $

Front 84

KRT: a hybrid tribunal

Back 84

Why?
-allows survivors to participate in the judicial process (court is located in Cambodia)
-strengthen Cambodia’s judicial system
-retains Cambodia’s sovereignty, might allow for easier cooperation

Problems:
-Cambodia's domestic law trumps int'l law
-difficulties w/ compatibility w/ UN
-Budget
-Corruption in Cambodia. And UN?
-Death: KR leaders may not live to be tried

-Marketability of KRT? --Relies on NGOs

Front 85

Criminal Law

Back 85

-established through conventions, but also through custom and general principles of law.
-no crime without a law and no punishment without a law, and no ex post facto application of laws (acts committed before the law was passed)

Front 86

International Criminal Legal Rules: 2 principles

Back 86

1. jus cogens: non derogable, absolute norms
2. Obligato erga omnes: an obligation flows to all: certain norms because of their universal character have universal obligation

Front 87

Int'l Crimes: who's responsible?

Back 87

-States
-duty to investigate and prosecute violators of int'l humanitarian (laws of war) and int'l hr law
-victim doesn't have legal or judicial authority to take criminal offenders to court; that duty belongs to the state
-gov't agents can be held liable, are subjects of int'l legal norms and are subject to nat'l and int'l prosecution

Front 88

Aggression

Back 88

-an offense applied in the Nuremberg and Tokyo war crimes trials against persons thought responsible for initiating the WWII

-GA: most serious and dangerous form of the illegal use of force

Front 89

Nuremberg and Tokyo Trials

Back 89

-led to the modern legal competence to deal with war offense committed in wartime

-Since the second WW,
*war crimes are international criminal acts
*governments can identify and punish persons for those extraterritorial crimes wherever and whenever they are committed.
*1949 Geneva Conventions, violations of the law or customs of war, acts of genocide and crimes against humanity

-UN GA approved the Nuremberg Judgments deriving from its Charter

Front 90

Ad hoc Tribunals

Back 90

ICTY and ICTR:
**Est. through U.N. Security Council Resolutions, (Not Allied Powers Treaty arrangements)

Front 91

ICTY

Back 91

-first trial of a head of State: Milosevic.
-seat in the Hague: it receives most of its funding from the UN
-consists of trial and appellate chambers.

-applies rules of law from:
*1949 Geneva Convention
*1948 Genocide Convention
*Crimes against Humanity as defined by Nuremberg Judgments
*And the 1907 Hague Conventions on the Laws and Customs of War on Land

-Tribunal has primacy over national courts both in the Former Yugoslavia and the rest of the world
No person can be tried twice (either in the ICTY or in national courts)
-Chief Prosecutor
-first time rape and genocide considered int'l HR crimes

Front 92

ICTR

Back 92

-result of a series of UN SC resolutions regarding
-to prosecute persons responsible for genocide or other serious violations of IHL in Rwanda.
-located in Tanzania
-Can prosecute: genocide, violations of Common Article 3 of the 1949 Geneva Conventions, crimes against humanity.
-Chief Prosecutor
-built on the jurisprudence of the ICTY

Front 93

**ICTY and ICTR** remember:

Back 93

**Neither tribunal has police authority: neither can locate or apprehend persons who have arrest warrants issued for them.

**Est. to prosecute disputes b/t INDIVIDUALS! (Unlike the ICJ) NOT state gov'ts.

Front 94

Hybrid Sierra Leone Tribunal

Back 94

Hybrid SG and Sierra Leone:
-works symbiotically with national courts (it does not have automatic primacy like ICTY and ICTR)
-first treaty-based tribunal b/t UN and state
-tries crimes committed in Sierra Leone after 1996
-sits in Sierra Leone
-$$ a problem

Front 95

ICC

Back 95

-b/t '46 and '93
-'97: Red Cross suggests ICC
-importance of impartiality for prosecuting int'l criminals
-'98: 150 UN members gathered in Rome (thus the Rome Statute of the ICC) to draft the statute.
-'02: entered into force after ratification by 60 countries; started working in '05
-First permanent, treaty based, global criminal court.
-Located in The Hague
-independent IO, not part of UN
-funded by states, IOs, corps, etc.
-tries persons accused of the most serious crimes of international concern, namely genocide. Crimes defined in Rome Statute.

Front 96

ICC Jurisdiction

Back 96

-court of last resort
-only can prosecute crimes if they were committed on the territory of a State Party or by one of its nationals
-conditions don't apply if situation is referred to the Prosecutor by the UNSC, whose resolutions are binding on all UN member states
-

Front 97

ICC!! principle of complementarity

Back 97

-Court complements, doesn't replace, national criminal justice systems.
-can prosecute cases only if national justice systems do not carry out proceedings

Front 98

ICC Prosecutor can initiate an investigation:

Back 98

-States Parties to the Statute of the ICC can refer situations to the Prosecutor

• UNSC can request the Prosecutor to investigate; Then the SC 5 can ask the ICC to prosecute, even if the state in question will not.

• on the basis of info from reliable
sources.

**No one is immune (not even heads of state) from ICC**

Front 99

“Command responsibility”: ICC

Back 99

-derived from Nuremburg
-State reps not exempt from ICC if they've committed int'l crime

Front 100

Reparations

Back 100

-restitution, rehabilitation and compensation.
-Trust fund
-

Front 101

U.S. position on ICC

Back 101

-signed by Clinton, unsigned by Bush
-concerned about use of the ICC against the US for political prosecutions.
-bilateral treaties with other states exempting the US (individuals) from extradition to the ICC. Also, economic pressure.
-Hague invasion clause": president can release any US serviceperson being detained by the ICC. Also, withdrawal of U.S. military assistance from countries ratifying the ICC treaty.
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Responses and Limitations of ICC

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-7 year transition period for new signatories. "transitional clause"
-Complementarity: Court is a complement to national courts***look this up
-for investigations launched by a State or the ICC Prosecutor the court still needs the consent of the state on whose territory the crime occurred.
-can't try crimes being tried in nat'l court
-cannot act on SC referral if there is one SC veto by one of the five members

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Regional Courts:

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-permanent, have infrastructure
-Judges should be more familiar with the customs and cases of each region
-less costly, more timely
-‘Comparative ability’ to enforce judgment based on proximity and regional interdependency

BUT:
-underused
-? of sovereignty
-need regional stability to work
-lack of compulsory jurisdiction to litigate
-lack of primacy w/ nat'l/int'l system

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European Court of Justice

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'SC of Europe'
-resolves disputes between the national law of the member states and the European community law
-created by EU treaty
-Individuals and Corporations can be parties before ECJ
-EU treaties were intended to create legal obligation to those states, and the ECJ can enforce the law in a similar manner to domestic courts

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ECHR

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-est. in 1950 by treaty
-Citizens can file claims with the ECHR
-judgments enforced in national courts of member states

-Others:
-Inter-American Court on Human Rights
-Andean Court of Justice (5 S. American States)

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UN General Assembly Referents on the Use of Force/Aggression

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Broad definitions:

1. Declaration on Friendly Relations (1970)
2. Refraining from use of Force in IR (1987)
3. UN GA Resolution on Aggression ('74)

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Force

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Refrain from using military, political, or economic or any other form of coercion directed at the political independence or territorial integrity of another state.

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Aggression

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first use of force by a state—in the form of an invasion, attack, bombardment, blockade, unilateral use of armed forces, sending of armed bands, groups, or irregulars

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Similarities b/t Force and Aggression as defined by 2 documents.

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*All adopted by the General Assembly without a vote (and thus no debate)
*All broadened the Charter rule prohibiting force/aggression
*Did not include concrete measures to enforce the principles they purported to add to the UN basic articles on force
*Indicators, not specific obligation about what conduct states deem prohibited.

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Measures Short of War: Brinkmanship

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-Reprisal: retaliation for a prior wrong to the initiating state or citizens
-Not authorized during peace
-"Gunboat diplomacy"-threatening combat designed to intimidate the other state: just short of the use of force

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Measures short of war: countermeasures

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-Sanction: in response to internationally wrongful conduct. Confiscation of goods or the freezing of assets.

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Measures short of war: Economic Coercion and low-intensity conflicts

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boycott--often form of collective punishment

low-intensity conflict: somewhere b/t war and peace

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U.N. Principles on Force

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Charter: States may not use or threaten use of force, except:
--States may use force defensively, when responding to an armed attack
OR
--when UN SC possesses legal monopoly on the use of force. rationale for SC authorization of threats is: collective security.

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ICJ position on “Force”: Nicaragua vs. U.S. Case

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Nicaragua alleged that the US had mined its harbors, trained counterinsurgents, etc.

ICJ held: there are multiple sources of the prohibition on the use of force; and N. could sue for reparations for US actions

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United Nations Charter Article 51

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Authorizes force for the limited purpose of self-defense from:
1. Armed attack ('45) (State has right to self-defense that precedes the armed attack-can't wait until missiles are literally in the air..leading to anticipatory sd)
2. anticipatory self-defense ('62 Cuban Missile Crisis)-defensive state reports its measures to the SC, and immediately turns over to the SC (ideally) all security countermeasures
3. Preemptive ('02)-Afghanistan, U.S. "had right" based on 9/11 attacks.
--US didn't want to turn control over to SC. made unilateral claim to right of preemptive SD

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Collective Self-Defense

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Nicaragua case: Did threat posed warrant US to act to defend OAS?

ICJ: No, there is no general right of collective self-defense in the form of an intervention.

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UN Peacekeeping

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1948 UN Truce Supervision Organization: monitors ceasefire, etc.
1956 Suez Canal Crisis: first time peace keeping used

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Humanitarian Intervention

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-runs directly counter to domestic sovereignty
-reserved for the rights to protect other humans from gross and exceptional crimes

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The Iron Wall: Related to Int'l Law

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-Territory coming under the control of a belligerent occupant does not thereby become its sovereign territory.

-Int'l Law says: occupying state has authority to take military administration over territory and inhabitants, but this is only temporary and not unlimited.

-Geneva Convention: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. (but this is what Israel is doing)

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The Iron Wall: Synopsis/Context

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-Zionist settlers occupying West Bank and Gaza to make creation of Palestinian state impossible.
-Land confiscation, theft of natural resources, confiscation of the basic human rights, creation of an apartheid-like system.