poli 355 post midterm

the UN Charter

-drafted during WW2, entered into force in 1945

requirements for admission, expulsion, and amendment to the UN

require a two-thirds vote in the GA and SC recommendation without a P5 veto

4 Objectives of the UN

-maintain intl peace
-promote human welfare
-self-determination
-prevent communication failures leading to violence

Principles of the UN

-sovereign equality of states
-peaceful dispute settlement (art 2)
-non-interference in domestic affairs
-respect for IL

the general assembly

-plenary organ of the UN, all members have one vote
-pass resolutions that are non-binding but can influence CIL development

main roles of the General Assembly

-debate forum to prevent misunderstandings
-elect members for other UN organs
-draft treaties and develop IL

UNSC composition

15 members, 5 permanent and 10 rotating

UNSC voting rules

-procedural matters (ex. admission of new members): 9 affirmative votes
-substantive matters (ex. authorizing use of force): 9 affirmative and no P5 veto
-note: determining if a matter is procedural or substantive is a procedural matter itself

main roles of the UNSC

-peaceful dispute settlement (Chapter 6)
-legally binding decisions on enforcement (chapter 7)

critiques of the SC

-outdated power representation
-democratic deficit
-geographic and demographic imbalance

The economic and social council

focus on economic and social cooperation

trusteeship council

-suspended in 1994, transitioned former colonies to independence

ICJ as UN organ

-judicial body of 15 individual judges, issues binding rulings

The secretariat

-the bureaucratic organ of the UN, staff of 30,000 individuals
-led by the Secretary General
-SG plays a role in agenda-setting, mediation, and preventive diplomacy

UN Actions

-pacific settlement of disputes (chap 6)
-collective security and peace enforcement (chap 7)
-humanitarian interventions?

Pacific settlement of disputes (chapter 6)

-judicial/political channels through ICJ or SC recommendation
-non-binding GA recommendations
-SG mediation based on neutrality

Collective Security and Peace Enforcement (chapter 7)

-response to breaches of peace or aggression, threat of collective response as a deterrent for aggression
-enabling condition: art 39
-two kinds of enforcement measures: non-force (art 41) and armed force (art 42)
-includes neutral peacekeeping missions

art 39 enabling condition (under chap 7)

-SC can determine the existence of any threat to the peace, breach of the peace, or act of aggression
- also can decide what measures to take (art 41 or 42) to maintain or restore international peace and security

Enforcement measures: Non-force (art 41 ch 7)

sanctions, embargoes, breaking off diplomatic relations

Enforcement measures: armed force (art 42)

-subject to SC authorization
-power is in tensions with art 2, but SC enforcement measures is one of two exceptions

article 2 UN Charter

-general ban on use of force
-admits two exceptions: UNSC against aggressor state and Self-defense

peace enforcement

uses military force, usually handled by UN state who is willing to provide forces

peacekeeping missions

-neutral, lightly armed
-peace has to have already been reached, enforcing ceasefire

Humanitarian intervention

-aimed at ending systematic HR violations
-not explicitly authorized by the Charter but carried out under SC discretion

true positives

states ratify treaty and comply with treaty

ture negatives

states neither ratify nor comply

false positives + reasoning

-ratify but do not comply
-motivations: diplomatic benefits, external pressures combined with low cost of violations
-driven by short term benefits

false negatives + reasoning

-comply but do not ratify
-reasons: institutional obstacles, risk of treaty reinterpretation, domestic legal precedent challenges

the managerial school (treaty compliance)

-states generally want to comply but fail due to normative misunderstanding and an inability to comply
-solutions: dialogue and capacity building
-critique: underestimates intentional non-compliance

external drivers of compliance

-interest based motivations
-international adjudication

interest based motivations as external drivers of IL compliance

soft power, reputation, reciprocity (within treaty responses), retaliation (out of treaty measures)

international adjudication as an external driver of Il compliance

non-compliance with rulings incurs reputational costs, which are often more costly than actually complying

internal drivers of compliance

-institutional mechanisms
-normative motivations
-habitualization

institutional mechanisms as internal drivers of compliance

there is increasing legal oversight within states (ex. military lawyers) that help prevent states from litigation

normative motivations as internal drivers of compliance

-internalization of social norms from agreements (constructivist view)
-compliance as a moral or ethical imperative, not just cost-benefit

habitualization as an internal driver of compliance

compliance becomes routine and unconscious over time

compliance, effectiveness, and efficacy

-compliance - dichotomous, you either are or not compliant
-effectiveness - continuous, extent to which law influences behavior
-efficacy - degree to which the law achieves its intended goals (ex. behavioral changes or policy outcomes

adjudication and compliance with IL

court rulings affect:
-reputation of a state
-preemptive alignment of domestic laws to prevent future litigation
-domestic court processes
-agenda-setting for progressive govts
-states can use them strategically to justify reforms

Domestic drivers of compliance with IL

-treaties empower stakeholders through 2 mechanisms: litigation through courts and creating perceived rights gaps that manifest as political mobilization

socialization as a driver of IL compliance

-compliance can shift from rational calculations to norm-driven behavior
-this leads to greater value on enforcement and compliance
-full internalization can lead to behavior aligning with treaty obligations even absent immediate benefits

enforcement challenges in the intl system

-anarchy: absence of centralized enforcement authority
-self-help: states rely on unilateral measures to enforce IL

types of self-help measures

-retorsion: non-violent, lawful responses to violations
-countermeasures: coercive measures breaching intl law to induce compliance (to be lawful, they have to avoid unnecessary or disproportionate actions)

self-help and power asymmetries

-self-help only effective when states are of similar power
-weaker states cannot effectively sanction stronger ones

coordinated enforcement types

-collective responses: SC resolutions authorizing countermeasures or use of force
-coalitions: groups of state partially overcoming the limitations of unilateral enforcement

jus in bello (aka intl humanitarian law)

-legal norms governing conduct during armed conflict
-purpose of minimizing suffering in war while accepting the functional role of war

sources of IHL

-the Hague Conventions — provided rules for conduct in war
-Geneva Conventions — expanded HR protections during war

4 core principles of IHL

distinction, military necessity, proportionality, unnecessary suffering

Distinction (IHL)

-targeting of individuals: only combatants may be directly targeted, civilians are protected unless involved in hostilities
-targeting of property: anything being used for a military purpose can be targeted

combatancy statuts (individual status)

lawful combatants, unlawful combatants, non-combatants

lawful combatants

includes formal military personnel and certain militas meeting specific conditions (uniforms, visible insignia, hierarchical command)

unlawful combatants

lack combatant privileges and can be targeted at any time, ex. terrorists

non-combatants

cannot be targeted, but may suffer collateral damage which is assessed under proportionality

MiIlitary necessity (IHL)

-force used must serve a clear military objective
-alternative methods causing less suffering should be prioritized

Proportionality - IHL

-collateral damage must not exceed the anticipated military advantage
-assessed based on reasonable expectations, not outcomes

Unnecessary suffering - IHL

-prohibits excessive harm, including use of inhumane weapons

common article 2 conflicts

interstate wars, this is what IHL was originally designed for

common article 3 conflicts

non-international conflicts, IHL expanding to these as well

belligerent status (group status)

-lawful belligerents: organized, identifiable, and adhere to IHL
-unlawful belligerents: engage in hostility without rights under IHL

classification of non-combatants

-based on participation in hostilities
-direct participation: circumstantial or continuous combat function
-indirect participation: have to determine if their role is dangerous or not

Detentions

-lawful combatants can be held as long as the conflict lasts, detained for security reasons
-unlawful combatants: have to determine their participation in the conflict and then if they are a security risk or not
-cannot detain innocent civilians

Case: 2004 ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in Palestine

-UNGA asked ICJ to give opinion on the legality of wall
-Israel: wall justified by self-defense, necessity, both rejected by the ICJ - no armed attack and other ways of accomplishing
-Findings: wall amounted to illegal annexation, breached obligations under IHL and IHRL, wall’s path impeded self-determination
-Consequences: cease construction, provide reparations, intl community obligated not to help in any way

jus ad bellum

right to war

Article 2.4 of UN Charter

general prohibition on the use of force with two exceptions

types of self-defense (art 51)

individual, collective, preemptive against imminent armed attacks

individual self-defense

one state who was attacked invoking use of force

collective self-defense

-state assisting another state who asked for help in restoring peace
-attacked party has to have asked for help or had a standing alliance

pre-emptive self defense

-self defense against imminent armed attack
-imminence has to be proven, this is different from possible attack, as preventive use of force is not justified

historical applications of art 42

Korea, Gulf War, Libya

Nuclear Non-Proliferation Treaty

-entered into force 1970, prevents the horizontal proliferation of nuclear weapons
-nuclear states cannot help others acquire weapons, non-nuclear have obligation not to acquire
-nuclear power can be used peacefully
-IAEA is monitoring body

U.S. Use of Force Against Nicaragua (1984-86)

-US Actions: covert ops, mining ports, supporting/training the Contra rebels
-US: said it was self-defense for El Salvador, also refused to participate in proceedings and limited the court’s jurisdiction to CIL and bilateral treaties
-ICJ: US violated prohibition on use of force, non-intervention, and territorial sovereignty, rejected their defenses for lack of necessity, proportionality, and evidence of armed attack
-Ruling: US incur state responsibility, forced to pay reparations though US refused to comply

US Attacks on Iranian Oil Platforms (1978-88)

-facts: US retaliating for attacks against US ships during Iran-Iraq war
-basis of jurisdiction: bilateral treaty about freedom of commerce, which contained a compromissory clause saying that any violations of the treaty for reasons of national security would not be taken as a violation
-US: actions were counterattacks to Iran’s
-ICJ: found that US not justified under self-defense, as it was not proportional or necessary, but they did not violate any of the terms of the treaty bc the oil rigs were not operative at the time of attack
-Court Process: went at it backward, which allowed them to say US not justified in actions

Israeli Air Strike on Osirak Nucelar Reactor (1981)

-Facts: Israel struck Iraq’s nuclear reactor, citing preventive self defense against potential nuclear threats
-UNSC: Israel violated article 2.4 as there was no proof of imminent armed attack, this also undermined the NPT
-outcome: SC demanded compensation and issued recommendation, but did not invoke article 7 to enforce

International bill of rights

UDHR, ICCPR, ICESCR

regional HR systems

inter-american system, european system, african system

Inter-American IHRL System

-under the OAS, includes the American Convention on Human Rights, the Inter-American Commission on HR and a court
-the Court issues legally binding decisions, but states don’t have to consent to it
-individuals can only access the court if they first go through the commission who can recommend it to the court

European IHRL system

-very strong
-under the Council of Europe, the European Court of HR has compulsory jurisdiction since the 1990s and issues binding rulings

African IHRL System

-operates under the African Union, with the African Charter on Human and Peoples’ Rights
-functions like the Inter-American system, but some countries allow individuals to bring cases directly to the court

state sovereignty + human rights

HR norms challenge the traditional concept of state sovereignty, increasingly limiting what states can do to their own citizens

enforcement of IHRL

-governs relationships between states and their citizens
-aimed at protecting individuals from state abuses, not regulating relations between states
-this means that reciprocity as a primary enforcement mechanism is lacking

S.A.S v. France (ECtHR 2014)

-facts: French law prohibiting the concealment of one’s face in public spaces is challenged, said to have violated rights to religion and expression under ECHR
-question: did the law infringe, and if so, was it justified?
-french justification: it was a public safety measure and it prevented “living together” in a democratic society
-Judgement: the law did infringe, but these were subsumed by the benefit that the law would bring for France’s social cohesion
-Court used key idea of “margin of appreciation”, which refers to the differing cultural contexts of different countries, allowing them some leeway in interpreting HR requirements

Yaker v. France (HRC 2018)

-Facts: HRC looking at the same French law as SAS
-Findings: violated same rights, but found that there was no justification — “living together” was not a specific ICCPR right, and so could not invoke it as a justification

Humanitarian Intervention definition

involves military action by one or more states, without the host state’s consent, to end mass human rights violations

Humanitarian action

focuses on human needs without external interference

UN System and humanitarian interventions

-does not allow explicitly, but has allowed for them to pass as interventions disguised as security matters by the SC
-bc SC can only intervene for matters of international peace and security, they have to label it as such
-examples include Kosovo, Somalia, Haiti

Multilateral HR interventions

-sanctioned by the SC
-can be collective or individual state effectuating it

Unilateral HR interventions

-carried out without sanction or mandate
-can be collective or individual in action

is there a custom developing around HR interventions?

-state practice: no, no long state practice for multi or unilateral interventions
-opinio juris: no, states/SC never saying outright that it is for humanitarian reasons

R2P

-established by ICISS Report in 2002 after Kosovo
-definition: when a state fails to protect its civilians, the intl community must act, either through the UN or unilateral intervention
-responsibility to: prevent - react - rebuild

who’s responsibility is R2P

-first the state in question, then the international community, then individual states

controversial nature of R2P

-states don’t like the wording
-should states be obligated to intervene against a government’s will or against their own will?
-probably will never become a treaty because of this

international criminal law definition

-pertains to individuals, holding them responsible for international crimes
-distinguishes individuals’ actions from states

International Criminal Courts

ad hoc and ICC

key ad hoc criminal tribunals

-Nuremberg and Tokyo
-ICTY (1993) and ICTR (1994): established by the SC for crimes in Yugoslavia and Rwanda, not based on an explicit authority, but accepted

ICC

-permanent court
-created by the Rome Statute (2002)

what does the ICC have jurisdiction over?

genocide, crimes against humanity, war crimes, and crimes of aggression (2018)

Conditions for ICC jurisdiction

-nationality — crimes committed by a national of a state party
-location — crime occurred on the territory of a state party
-referral — by UNSC

ICC Complementarity Principle (article 17)

-ICC acts as a court of last resort, stepping in only if domestic courts fail to act genuinely, refuse, or cannot act
-this doesn’t override ratification status

Genocide

-acts intended to destroy a national, ethnic, racial, or religious group either in whole or in part
-distinguished by targeting members of a group that cannot change their characteristics

rape and ethnic cleansing

-no jurisprudence yet
-however, if intent is demonstrated, they could be considered part of genocide

crimes against humanity

-widespread or systematic attacks against civilians
-murder, enslavement, torture, rape etc